California Court of Appeal Nov 7, 2024 No. E084250Unpublished
Filed 11/7/24 In re R.G. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 R.G. et al., Persons Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E084250
Plaintiff and Respondent, (Super.Ct.No. RIJ2100542)
v. OPINION
A.R.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Dorothy McLaughlin,
Judge. Conditionally reversed with directions.
Donna Balderston Kaiser, under appointment by the Court of Appeal, for
Defendant and Appellant.
Minh C. Tran, County Counsel, Teresa K.B. Beecham and Julie K. Jarvi, Deputy
County Counsel for Plaintiff and Respondent.
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Defendant and appellant A.G. (Mother) appeals after the termination of her
parental rights to her children at a Welfare and Institutions Code section 366.261 hearing.
On appeal, Mother raises one claim that the matter must be remanded to the
juvenile court based on the lack of substantial evidence that the Indian Child Welfare Act
of 1978 (ICWA) did not apply. She claims that plaintiff and respondent Riverside
County Department of Public Social Services (the Department) did not adequately
perform its duty of inquiry about Indian ancestry pursuant to section 224.2, subdivision
(e), as to paternal relatives to determine whether Minor was an Indian child. The
Department has conceded that the record does not support that an adequate ICWA
inquiry was made; it does not oppose a conditional reversal and remand for the limited
purpose of ensuring that further inquiry of paternal grandfather is conducted as required
by section 224, subdivision (e).
FACTUAL AND PROCEDURAL HISTORY
On September 20, 2021, section 300 petitions (petitions) were filed against Mother
with respect to her children R.G. (a boy; born Jan. 2013), L.G. (a girl; born Feb. 2014),
Jo.G. (a boy, born Jan. 2016), and S.G. (a girl, born Nov. 2017; collectively, Minors).2
J.G. (Father) was the presumed father of Minors but was deceased. It was alleged under
section 300, subdivision (b), that Mother had left Minors with their godmother and had
1 All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
2 A.G. (a boy, born Dec. 2005) was also initially part of the dependency proceedings but was dismissed when he was placed with his father, E.G., who was not the father of Minors.
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no contact with them. Mother had left Minors with inadequate food, shelter, and medical
treatment. Mother also had an unresolved history of abusing controlled substances and
mental health issues including a current use of methamphetamine. Minors were detained
and placed with their godmother. In the petitions, the Department provided that Mother
had denied Indian ancestry.
At the detention hearing held on September 21, 2021, Mother was not present in
court. The juvenile court found a prima facie showing had been made and Minors were
ordered detained. Since the parties were not present, no ICWA-020 forms were
completed.
The jurisdiction/disposition report was filed on October 7, 2021. The Department
recommended that the allegations in the petitions be found true. It was also
recommended that Minors remain in out-of-home placement. It was recommended that
Mother be granted reunification services for Minors. The Department also recommended
that the juvenile court find that ICWA does not apply. Mother denied any Indian
ancestry. Mother had not been interviewed during the reporting period.
On October 13, 2021, Mother completed an ICWA-020 form stating she had no
Indian ancestry. At a hearing held on October 13, 2021, Mother’s counsel stated that
Father did not have any Indian ancestry. Mother’s counsel also confirmed that Mother
had no Indian ancestry.
The jurisdiction/disposition hearing was held on November 2, 2021. Mother was
not present in court. The allegations in the petition against Mother for Minors were
found true by a preponderance of the evidence and she was granted reunification services.
3
The juvenile court adopted the Department’s findings which included that ICWA did not
apply.
Several review hearings were held. The juvenile court continued reunification for
Mother for Minors one time. Minors remained in the care of godmother throughout the
review periods. No further ICWA information came to the attention of the Department
during the review periods. Mother had not made any progress in her reunification
services and had little contact with Minors.
At the 12-month review hearing conducted on December 8, 2022, Mother’s
reunification services were terminated. Mother stated at the hearing that she had no
Indian ancestry. The matter was set for a section 366.26 hearing. The Department
recommended adoption as the permanent plan for Minors.
On June 15, 2023, a paternal aunt and uncle for Minors filed a motion for
standing. They were seeking placement and adoption of Minors. In the motion, it was
stated that relatives of Father were not aware of the dependency proceedings until May 1,
2023. Paternal grandfather and grandmother provided declarations that they were
unaware of the proceedings until May 1, 2023, but wanted to be involved in Minors’
lives. Paternal uncle and aunt also filed section 388 petitions seeking placement of
Minors. The Department filed a response seeking a continuance of the section 366.26
hearing to assess paternal uncle and aunt for placement.
At a hearing held on July 6, 2023, paternal grandfather, paternal aunt, and paternal
uncle were present. The Department was supportive of paternal aunt and uncle having
placement of Minors but they needed to be assessed. Counsel for paternal aunt and uncle
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sought placement of Minors as soon as possible. The juvenile court approved an
emergency assessment. The Department reported that Minors had been placed with
paternal aunt and uncle on July 15, 2023. Minors were adjusting well to the new home.
At a hearing held on October 11, 2023, paternal relatives were present. The
juvenile court inquired about Indian ancestry. Paternal uncle was not aware of any Indian
ancestry and paternal aunt was related by marriage. Paternal grandfather stated, “There
is, but it’s from uncles—my great uncle and my grandfather as well.” He believed it was
the Navajo tribe on his mother’s side of the family. The juvenile court ordered the
Department to follow up with paternal grandfather with regard to appropriate ICWA
inquiry.
After the hearing, the Department filed a continued section 366.26 report. They
sought a continuance in order to complete an adoption assessment for Minors to be with
paternal aunt and uncle. As for ICWA, it only noted the juvenile court had previously
found it did not apply. On November 2, 2023, the matter was continued and there was no
mention of any further ICWA inquiry with paternal grandfather. Another addendum
report was filed by the Department on February 26, 2024, seeking another continuance to
complete an adoption assessment. Paternal aunt and uncle were willing to adopt Minors.
The continuance was granted and there was no mention of further ICWA inquiry.
The Department submitted another report on April 22, 2024. In that report, in
regard to ICWA inquiry, they stated “On April 10, 2024, [Minors’] current
caregiver/paternal uncle denied having any Native American ancestry, having any
relatives registered to a tribe, attending tribal schools, or living on tribal lands.” The
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Department recommended that the juvenile court find that an adequate investigation as to
ICWA was made and that it did not apply. In the final report before the section 366.26
hearing, the Department recommended that the juvenile court terminate Mother’s
paternal rights and free Minors for adoption by paternal aunt and uncle.
The section 366.26 hearing was held on July 1, 2024. The Department noted that
paternal uncle and aunt were present. In addition, another paternal uncle and aunt were
present, and three cousins. The juvenile court asked all the paternal relatives present
whether there was any Indian ancestry; they responded there was none. Paternal
grandfather was not present. Mother’s parental rights were terminated and Minors were
freed for adoption by paternal uncle and aunt.
DISCUSSION
Mother contends conditional reversal and remand to the juvenile court is necessary
based on the failure of the Department to adequately perform its duty of inquiry pursuant
to the requirement of section 224.2, subdivision (e), to further inquire of paternal
grandfather about Indian ancestry to determine whether Minors were Indian children.
The Department does not oppose a conditional reversal and remand for the limited
purpose of ensuring that further inquiry is conducted pursuant to section 224.2,
subdivision (e).
“ ‘Notice to Indian tribes is central to effectuating ICWA’s purpose, enabling a
tribe to determine whether the child involved in a dependency proceeding is an Indian
child and, if so, whether to intervene in, or exercise jurisdiction over, the matter.’ ” (In re
S.R. (2021) 64 Cal.App.5th 303, 313.) “ ‘ICWA itself does not impose a duty on courts
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or child welfare agencies to inquire as to whether a child in a dependency proceeding is
an Indian child. [Citation.] Federal regulations implementing ICWA, however, require
that state courts ‘ask each participant in an emergency or voluntary or involuntary child-
custody proceeding whether the participant knows or has reason to know that the child is
an Indian child.’ . . . . [¶] . . . ‘ICWA provides that states may provide “a higher standard
of protection to the rights of the parent or Indian custodian of an Indian child than the
rights provided under” ICWA.’ ” (In re J.S. (2021) 62 Cal.App.5th 678, 685.)
Under California law, section 224.2 “codifies and expands on ICWA’s duty of
inquiry to determine whether a child is an Indian child.” (In re Dezi C. (2024) 16 Cal.5th
1112, 1132 (Dezi), fn. omitted.)3 Relevant here, “When the agency has ‘reason to
believe’ that an Indian child is involved, further inquiry regarding the possible Indian
status of the child is required.” (Id. at p. 1132; § 224.2, subd. (e)).) “The required further
inquiry includes (1) interviewing the parents and extended family members;
(2) contacting the Bureau of Indian Affairs (BIA) and State Department of Social
Services; and (3) contacting tribes the child may be affiliated with and anyone else that
might have information regarding the child’s membership or eligibility in a tribe.
3 Mother does not appear to make a claim that there was inadequate inquiry pursuant to section 224.2, subdivision (b)(2), which requires inquiry of extended family members and others as to whether the child is an Indian child. Minors were detained by warrant pursuant to section 340, and prior to September 27, 2024, courts had found that such inquiry was not necessary when detention was by warrant. (See In re Ja.O. (2023) 91 Cal.App.5th 672, review granted July 26, 2023, S280572.) However, section 224.2, subdivision (b)(2), has recently been amended to include those children detained pursuant to a warrant. (Stats. 2024, c. 656 (A.B. 81) sec. 3, eff. Sept. 27, 2024.) The juvenile court and the Department repeatedly inquired of present family members regarding Indian ancestry.
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[Citation.] At this stage, contact with a tribe ‘shall, at a minimum, include telephone,
facsimile, or electronic mail contact to each tribe’s designated agent for receipt of
[ICWA] notices,’ and ‘sharing information identified by the tribe as necessary for the
tribe to make a membership or eligibility determination, as well as information on the
current status of the child and the case.’ ” (Dezi, at pp. 1132-1133.) Notice to the
pertinent tribes must be provided if there is a reason to know an Indian child is involved.
(§ 224.3, subds. (a), (b).) “The juvenile court may alternatively make a finding that an
agency’s inquiry and due diligence were ‘proper and adequate,’ and the resulting record
provided no reason to know the child is an Indian child, so ICWA does not apply.”
(Dezi, at p. 1134.)
“[E]rror resulting in an inadequate initial Cal-ICWA inquiry requires conditional
reversal with directions for the child welfare agency to comply with the inquiry
requirement of section 224.2, document its inquiry in compliance with [California Rules
of Court] rule 5.481(a)(5), and when necessary, comply with the notice provision of
section 224.3. When a Cal-ICWA inquiry is inadequate, it is impossible to ascertain
whether the agency’s error is prejudicial. [Citations.] ‘[U]ntil an agency conducts a
proper initial inquiry and makes that information known, it is impossible to know what
the inquiry might reveal.’ ” (Dezi, supra, 16 Cal.5th at p. 1136.)
Here, there is no dispute that paternal grandfather appeared before the juvenile
court and declared there may be Indian ancestry on his mother’s side of the family. He
named the Navajo tribe, a federally recognized tribe. (See In re M.W. (2020) 49
Cal.App.5th 1034, 1045.) The juvenile court ordered the Department to further inquire of
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paternal grandfather and provide any notice that may be required. There is no evidence
that such further inquiry was conducted. The only further evidence was inquiry of other
paternal relatives, who denied Indian ancestry, but they may not have the same
knowledge of ancestry as paternal grandfather. The record does not contain sufficient
evidence to support the juvenile court’s conclusion that the Department conducted an
adequate ICWA inquiry and that ICWA did not apply.
DISPOSITION
The order terminating parental rights is conditionally reversed, and the matter is
remanded to the juvenile court for compliance with the inquiry requirements of section
224.2, subdivision (e). The juvenile court shall ensure the Department’s compliance with
the documentation provisions of California Rules of Court, rule 5.481(a)(5). If the
juvenile court, after adequate further inquiry, concludes that ICWA does not apply, then
the court shall reinstate the order terminating parental rights. If the juvenile court
concludes that ICWA applies, then it shall proceed in conformity with ICWA and related
California law.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
McKINSTER Acting P. J.
FIELDS J.
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AI Brief
AI-generated · verify before citing
Holding. The court conditionally reversed the termination of parental rights and remanded the matter because the Department failed to conduct an adequate inquiry into the children's potential Indian ancestry after a paternal relative provided specific information suggesting such ancestry.
Issues
Whether the Department of Public Social Services failed to perform an adequate inquiry into Indian ancestry as required by Welfare and Institutions Code section 224.2, subdivision (e).
Disposition. Conditionally reversed and remanded.
Quotations verified verbatim against the opinion
“The record does not contain sufficient evidence to support the juvenile court’s conclusion that the Department conducted an adequate ICWA inquiry and that ICWA did not apply.”
“The order terminating parental rights is conditionally reversed, and the matter is remanded to the juvenile court for compliance with the inquiry requirements of section 224.2, subdivision (e).”