California Court of Appeal Nov 14, 2024 No. E083064Unpublished
Filed 11/14/24 In re E.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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 E.G. et al., Persons Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL E083064 SERVICES, (Super.Ct.No. INJ1900254) Plaintiff and Respondent, OPINION v.
T.M. et al.,
Defendants and Appellants.
APPEAL from the Superior Court of Riverside County. Elizabeth Tucker,
Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Conditionally reversed and
remanded with directions.
Christopher R. Booth, under appointment by the Court of Appeal, for
Defendant and Appellant, T.M.
1
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and
Appellant, E.G.
Minh C. Tran, County Counsel, and Julie Jarvi, Deputy County Counsel, for
Plaintiff and Respondent.
T.M. (mother) and E.G. (father) appeal from orders of the juvenile court
terminating parental rights to their children I.G. and E.G. The parents contend the
Riverside County Department of Public Social Services (DPSS) did not comply with
its duty to adequately inquire whether the children were Indian1 children under the
Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) and related state
law. Specifically, they argue DPSS failed to make sufficient inquiry of extended
family members and obtain information of possible Indian ancestry. DPSS concedes
the error and agrees to a conditional reversal of the orders and a limited remand for
further inquiry and, if appropriate, notice under ICWA. We accept the concession and
so order.
I.
FACTS AND PROCEDURAL BACKGROUND
Because the parents’ appeals focus solely on the adequacy of DPSS’s inquiries
under ICWA, we need not recite the facts of this case in detail. After investigating a
referral of general neglect of the children, DPSS detained the children pursuant to
1 “The language of both federal and state law uses the term ‘Indian.’ California courts have used alternative terms, such as ‘American Indian’ or ‘Native American’; we use the term ‘Indian’ throughout to reflect the statutory language . . . . No disrespect is intended.” (In re Dezi C. (2024) 16 Cal.5th 1112, 1125, fn. 1.)
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protective custody warrants and filed a petition in the juvenile court alleging the
children were dependents of the court pursuant to Welfare and Institutions Code2
section 300, subdivision (b)(1). Mother and father consistently denied having any
Indian ancestry. The juvenile court ordered the children removed from the parents and
subsequently sustained the allegations of general neglect, declared the children to be
dependents of the court, and directed DPSS to offer the parents family reunification
services. The court found ICWA did not apply.
Although DPSS initially recommended the juvenile court order continued
reunification services to the parents, in an addendum report for the six-month review
hearing, DPSS recommended the court find by clear and convincing evidence that the
parents failed to make adequate progress in alleviating the reasons for the dependency,
terminate services, and set a hearing for selection of a permanent plan pursuant to
section 366.26. At the hearing, the juvenile court terminated reunification services and
set a permanency hearing. The court found DPSS had made a sufficient inquiry under
ICWA and that ICWA did not apply.
In a report for the permanency hearing, DPSS recommended the juvenile court
terminate parental rights and free the children for adoption. In addition, DPSS
recommended the court find sufficient inquiry had been made about the children’s
possible Indian ancestry and that ICWA did not apply. After conducting a contested
permanency hearing, the juvenile court terminated mother’s and father’s parental
2 All undesignated statutory references are to the Welfare and Institutions Code.
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rights and selected adoption as the children’s permanent plan. The court again found
DPSS had made an adequate inquiry under ICWA and that ICWA did not apply.
The parents timely appealed.
II.
DISCUSSION
“The protective provisions of ICWA turn on a determination of whether a
minor is an ‘Indian child’ as defined by statute. ‘A determination by an Indian tribe
that a child is or is not a member of, or eligible for membership in, that tribe, or
testimony attesting to that status by a person authorized by the tribe to provide that
determination, shall be conclusive.’ (Welf. & Inst. Code, § 224.2, subd. (h); see Cal.
Rules of Court, rule 5.481(b)(4); 25 C.F.R. § 23.108 (2024).) Of course, a tribe may
only make such determination, or exercise its right of intervention, if it is made aware
of the ongoing proceedings. Accordingly, the scheme requires the appropriate tribe be
notified when the court or county welfare agency has reason to know the child is
Multiple panels of this court have disagreed about whether former section 224.2
mandated inquiry of extended family members when a child was taken into custody
pursuant to a protective custody warrant under section 340.3 (Compare, e.g., In re
Robert F. (2023) 90 Cal.App.5th 492, review granted July 26, 2023, S279743
[concluding there was no such duty] and In re Ja.O. (2023) 91 Cal.App.5th 672,
review granted July 26, 2023, S280572 [same] with In re Delila D. (2023) 93
Cal.App.5th 953, review granted Sept. 27, 2023, S281447 [concluding there was such
a duty and declining to follow Robert F.] and In re Samantha F. (2024) 99
Cal.App.5th 1062 [same], disapproved on another ground by In re Dezi C., supra, 16
Cal.5th at p. 1152, fn. 18.)
3 Every other district of the Court of Appeal to address the issue in a published opinion sided with our decision in In re Delila D. and held the duty of inquiry as to extended family members under former section 224.2, subdivision (b), applied regardless of whether the child was taken into custody pursuant to a warrant. (In re L.B. (2023) 98 Cal.App.5th 512 [First Dist., Div. Four]; In re C.L. (2023) 96 Cal.App.5th 377 [Third Dist.]; In re Jerry R. (2023) 95 Cal.App.5th 388 [Fifth Dist.]; In re V.C. (2023) 95 Cal.App.5th 251 [First Dist., Div. Two], disapproved on another ground by In re Dezi C., supra, 16 Cal.5th at p. 1152, fn. 18.)
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But we need not revisit that question. While this appeal was pending, the
Legislature adopted, and the Governor signed, Assembly Bill No. 81 (2023-2024 Reg.
Sess.). Among other things, that bill amended section 224.2, subdivision (b), to
plainly state child welfare departments must inquire of extended family members
regardless of whether the child was taken into temporary custody under section 306 or
pursuant to protective custody under section 340. (§ 224.2, subd. (b)(2), as amended
The legislative history of Assembly Bill No. 81 shows the amendment to
section 224.2, subdivision (b), sought to “specify that a county welfare department or
county probation department has a duty to inquire whether the child is or may be an
Indian child when first contacted regarding a child,” regardless of how the child was
taken into custody. (Legis. Counsel’s Digest, Assem. Bill No. 81 (2023-2024 Reg.
Sess.) Stats. 2024, ch. 656, italics added.) The legislature did not intend to change the
law regarding the initial duty of inquiry, but merely to “[c]larif[y] the timing,
duration, and scope of a county department’s, and a court’s, duty to inquire whether a
child is or may be an Indian child.” (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d
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reading analysis of Assem. Bill No. 81 (2023-2024 Reg. Sess.) as amended Aug. 19,
2024, p. 5, italics added.) Because the amendment followed closely the development
of a split in authority in this court on the proper interpretation of former section 224.2,
subdivision (b), we must accept the Legislature’s declaration that the amendment
meant to clarify the existing duty of inquiry and not to create a new one. (Carter,
supra, 38 Cal.4th at p. 923.) Therefore, it is appropriate to apply the amended statute
in this appeal.
The parents argue DPSS failed to satisfy its duty of inquiry under ICWA
because the record contains no evidence that DPSS interviewed various extended
family members about the children’s possible Indian ancestry, though the family
members were either known to the social worker or their whereabouts were easily
ascertainable. DPSS concedes it inadvertently failed to interview extended family
members and does not oppose a conditional reversal of the orders terminating parental
rights and a limited remand for additional ICWA inquiry. We accept the concession.
Finally, we note the agency’s failure of inquiry is not subject to harmless error
analysis. Recently, the California Supreme Court held that “an inadequate Cal-ICWA
inquiry requires conditional reversal of the juvenile court’s order . . . with directions to
the agency to conduct an adequate inquiry, supported by record documentation.” (In
re Dezi C., supra, 16 Cal.5th at p. 1125.) The Court reasoned that “[w]hen 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
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makes that information known, it is impossible to know what the inquiry might
reveal.’” (Id. at p. 1136.)
III.
DISPOSITION
The juvenile court’s orders terminating the parental rights to the children are
conditionally reversed. On remand, the juvenile court shall direct DPSS to provide the
court with a supplemental report detailing what additional efforts, if any, it has taken
to obtain information about the child’s possible Indian ancestry, including the names
and other relevant information of family members interviewed. The juvenile court
shall then determine whether the ICWA inquiry was adequate and, if applicable,
whether proper notice has been given to relevant Indian tribes. If the juvenile court
determines the inquiry completed and the notice given were adequate (and, if after
receiving notices, the relevant tribes do not respond or respond that the child is not an
Indian child within the meaning of ICWA), the orders terminating parental rights to
the children shall immediately be reinstated and further proceedings shall be
conducted as appropriate.
In the alternative, if the juvenile court determines the inquiry and/or notice
conducted was inadequate, it shall direct DPSS to conduct additional inquiry and
provide additional notice to the relevant Indian tribes of any additional relevant
information DPSS might have received. The court shall then determine whether the
additional inquiry and notice are adequate. If, after receiving notices, the relevant
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tribes do not respond or respond that the child is not an Indian child within the
meaning of ICWA, the orders terminating parental rights to the children shall
immediately be reinstated, and further proceedings shall be conducted, as appropriate.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER Acting P. J.
We concur:
MILLER 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 for the Department of Public Social Services to conduct an adequate inquiry into the children's potential Indian ancestry, as required by the Indian Child Welfare Act (ICWA).
Issues
Did the Department of Public Social Services fail to comply with its duty of inquiry under ICWA by not interviewing extended family members?
Does the recent amendment to Welfare and Institutions Code section 224.2, subdivision (b), clarify the existing duty of inquiry regarding extended family members?
Is an inadequate ICWA inquiry subject to harmless error analysis?
Disposition. Conditionally reversed and remanded.
Quotations verified verbatim against the opinion
“DPSS concedes the error and agrees to a conditional reversal of the orders and a limited remand for further inquiry and, if appropriate, notice under ICWA.”
“The legislature did not intend to change the law regarding the initial duty of inquiry, but merely to “[c]larif[y] the timing, duration, and scope of a county department’s, and a court’s, duty to inquire whether a child is or may be an Indian child.””
“Finally, we note the agency’s failure of inquiry is not subject to harmless error analysis.”