California Court of Appeal Nov 15, 2024 No. E084178Unpublished
Filed 11/15/24 In re R.R. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.R., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E084178
Plaintiff and Respondent, (Super.Ct.No. DPRI2200088)
v. OPINION
M.R. et al.,
Defendants and Appellants.
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.). Reversed with directions.
Jacob I. Olsen, under appointment by the Court of Appeal, for Defendant and
Appellant, M.R.
1
Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and
Appellant, B.G.
Minh C. Tran, County Counsel, Teresa K.B. Beecham and Catherine E. Rupp,
Deputy County Counsel for Plaintiff and Respondent.
INTRODUCTION
M.R. (father) appeals from the juvenile court’s order terminating parental rights
(Welf. & Inst. Code,1 § 366.26) as to his child, R.R. (the child). Father contends the
matter must be conditionally reversed and remanded because the Riverside County
Department of Public Social Services (DPSS) failed to follow up with him or inquire of
the paternal grandparents about the child’s possible Native American ancestry. B.G.
(mother) filed a separate brief joining in father’s arguments and also arguing that DPSS
failed to inquire of available maternal relative]es. We conditionally reverse the order
terminating parental rights and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
On September 12, 2022, DPSS filed a petition on behalf of the child, who was one
week old at the time.2 The petition alleged that the child came within the provisions of
section 300, subdivision (b) (failure to protect).
1 All further statutory references will be to the Welfare and Institutions Code unless otherwise indicated. 2 The petition also included R.H. and O.H., two of mother’s children with another father. R.H. and O.H. are not subjects of this appeal. 2
The social worker filed a detention report and stated that mother gave birth to the
child on September 6, 2022 and tested positive for methamphetamine and syphilis at
delivery. Mother admitted using methamphetamine early in her pregnancy. The child
was transferred to the neonatal intensive care unit at the children’s hospital to be treated
for syphilis and observed for substance abuse withdrawal. The social worker reported
that mother’s other children, O.H. and R.H., lived with the maternal grandmother
(MGM). Mother said she (herself) lived with father and the paternal grandfather (PGF).
The social worker stated that father reported he was the child’s biological father.
However, he did not make himself available to DPSS to interview and only replied in a
text message that he would appear at the detention hearing.
On September 7, 2022, DPSS applied for a protective custody warrant, which the
court granted.
The court held a detention hearing on September 13, 2022. Mother and father
were present and both submitted ICWA-020 forms indicating they had no Indian
ancestry. At the hearing, mother’s counsel stated that mother indicated she had no Native
American ancestry, and father’s counsel similarly stated that father was claiming no
Native American ancestry. The court detained the child in DPSS’s care and noted the
child was still in the hospital.
The child was subsequently released from the hospital on September 16, 2022 and
placed with the MGM.
3
Jurisdiction/Disposition
The social worker filed a jurisdiction/disposition report on October 21, 2022,
recommending that the court sustain the petition and that mother and father (the parents)
be offered reunification services. The social worker reported that father denied having
any known Native American ancestry on October 3, 2022 and recommended the court
find that ICWA did not apply. The social worker also reported that father was raised by
his mother and father and had two older sisters. He lived with his father in Corona, and
his mother lived in Nebraska.
On October 27, 2022, the court held a jurisdictional hearing. Father requested the
matter be set for contest and requested presumed father status. Father’s counsel further
asked that DPSS assess the paternal grandparents’ home, where father was living, for
placement. The court set the matter contested and authorized the paternal grandparents’
home to be assessed for placement. The court asked both father and mother if he/she had
any Native American ancestry, and they both said no.
The court held a contested jurisdiction/disposition hearing on December 6, 2022.
The parents were present. The court sustained the petition, declared the child a
dependent, and removed him from the parents’ custody. The court ordered the parents to
participate in reunification services and set a six-month review hearing for May 23, 2023.
Six-month Status Review
The social worker filed a six-month status review report on June 15, 2023,
requesting the court to continue reunification services. The social worker reported that,
4
during this reporting period, the MGM said the child had no Indian ancestry. The social
worker further reported that, on May 22, 2023, mother again denied having Indian
ancestry; however, father reported he recently found out that he had Native American
ancestry, but said he had no information as to which tribe or if he was eligible for
enrollment with said tribe. The social worker still recommended the court find that
ICWA did not apply and that the child was not an Indian child.
The court held a six-month review hearing on June 27, 2023. The court asked
mother and the MGM if they had any Indian ancestry, and they both said no. When the
court asked father, he said he just found out that he had Indian ancestry on his mother’s
side. When the court asked if he knew which tribe or nation, father said he did not know,
but he could find out from his mother. The court directed DPSS to follow up with father
on that information. The court adopted the recommended findings and set a 12-month
hearing for October 17, 2023. The hearing was subsequently continued.
Twelve-month Status Review
The social worker filed a 12-month status review report on October 5, 2023 and
recommended that services be terminated. The social worker again reported that ICWA
did not apply, and that father said, on May 22, 2023, he found out he had Indian ancestry
but had no information about which tribe. The social worker stated that mother reported
she lived with father, and they resided with the PGF in Riverside County.3
3 We note that, in another part of the same report, the social worker said father was not available for interview, and that he resided with mother “in Riverside County in temporary housing.” [footnote continued on next page]
5
On November 8, 2023, the MGM filed a request to be declared the child’s de facto
parent. The court set the matter for a hearing.
In an addendum report, the social worker reported that, from November 13, 2023
to December 4, 2023, she texted father multiple times and called him at a certain number,
and the call could not be completed. The social worker contacted the MGM and got
another phone number for him. The social worker tried to contact him at that number,
and the call also could not be completed.
On December 21, 2023, the court held a contested 12-month hearing, as well as a
hearing on the de facto parent request. Mother was present but father was not; both were
represented by counsel. The court adopted the social worker’s findings and
recommendations. It found that the parents had made failed to make substantive progress
in their case plans, terminated their reunification services, and set a section 366.26
hearing. The court ordered DPSS to prepare an adoption assessment report. It also
granted the MGM’s request for de facto parent status.
On February 8, 2024, the social worker reported that she submitted a request for
“Person Locator assistance,” and that father was located on February 7, 2024 via
telephone. Father reported that he was “staying place to place” but he could receive mail
at his father’s address.
6
Section 366.26
On April 5, 2024, the social worker filed a section 366.26 report recommending
that the child remain a dependent, adoption be the permanent plan, and the section 366.26
hearing be continued for 60 days to allow time for the preliminary adoption assessment to
be completed. The report indicated that ICWA did not apply. As to ICWA, the social
worker reported that mother and the MGM denied Indian ancestry on September 30,
2023, and that, on May 22, 2023, father said he recently found out he had Indian ancestry
but did not know the tribe or if he was eligible for enrollment. The social worker further
reported that, on March 28, 2024, she attempted to get an ICWA update from mother, but
mother’s voicemail box was full, so she could not leave a message. The social worker
also attempted to call father that day, but his phone number was no longer working. The
MGM continued to report she had no Indian ancestry. The social worker concluded there
was no new information to indicate Native American ancestry.
The social worker additionally reported that, throughout the case, the child had
“been able to maintain family connections with maternal relatives,” as he was placed with
the MGM on September 16, 2022. The social worker reported that contact or attempted
contact with the parents was made “in order to discuss visitation, any needs or other
concerns” on September 30, 2023, October 17, 2023, October 20, 2023, October 24,
2023, November 1, 2023, February 14, 2024, and February 22, 2024.
The court held a section 366.26 hearing on April 18, 2024. Mother was present,
but father was not. DPSS requested a continuance and requested that the court authorize
7
service on father’s counsel. The court noted there was a report indicating that DPSS
made four attempts on different days, at different times, to serve father at the address he
provided, but no one was there. Father’s counsel objected to service to himself, noting
that father was currently in the hospital and that mother just provided an address for him.
The court denied the request to serve father’s counsel and continued the matter to
June 13, 2024. The court again asked mother and the MGM if they had any Native
American ancestry, and they said no. The court also authorized dispensing with statutory
notice to mother and father, at DPSS’s request.
DPSS contacted the hospital to find out whether father was a current patient, and
the staff stated he was discharged on April 17, 2024, and there was no record of him
being seen at the hospital on April 18, 2024.
On May 29, 2024, the social worker filed an addendum report and attached a
preliminary adoption assessment. The preliminary adoption assessment recommended
the court proceed with adoption with the MGM. The MGM reported that she had three
children (two girls and a boy) from her only marriage, that she and her husband were
divorced, but remained amicable, and that all three children have a good relationship with
him. The MGM said she was very close with her three children and she sees her son and
his family at least once a week.
The court held a section 366.26 hearing on June 13, 2024. Mother and father were
present. Mother’s counsel and father’s counsel asked the court to consider legal
guardianship for the child. Counsel for the child pointed out that the parents had
8
inconsistent visitation, that the child had been in the MGM’s care practically since birth,
and that the MGM had a favorable preliminary adoption assessment. The child’s counsel
added, “We do have supportive extended family members, and this prospective adoptive
parent, the caregiver, is also a relative to this child.” She then asked the court to
terminate parental rights and declare the MGM the prospective adoptive parent.
The court terminated parental rights as to the child and found adoption to be in his
best interest.
DISCUSSION
The Matter Should Be Remanded for Further Inquiry
Father contends the juvenile court did not have sufficient evidence upon which to
base its finding that ICWA did not apply since DPSS failed to follow up with him about
his claimed ancestry, as the court directed, and did not inquire of the paternal
grandparents. Mother joins in father’s claims and also contends that DPSS failed to
inquire of all known and available extended relatives, including paternal aunts, the
maternal grandfather (MGF), a maternal aunt and uncle, maternal great grandparents,
maternal great cousins, and maternal great aunts and uncles. She additionally claims
there is no record that DPSS asked the parents about “the existence of any other such
relatives who might know more about the family’s history.” DPSS argues it was not
obligated to interview extended family members as part of its initial inquiry, pursuant to
In re Robert F. (2023) 90 Cal.App.5th 492 (Robert F.), since the child was brought into
protective custody pursuant to a warrant. However, DPSS notes there is a split of
9
authority regarding the application of section 224.2, subdivision (b). Alternatively, DPSS
asserts that it inquired of the parents and the MGM, and they repeatedly denied Native
American ancestry. DPSS claims the information provided by the parents and the MGM
“definitively indicates [the child] is not an Indian child.” DPSS also contends that
father’s statement of Indian ancestry did not provide a reason to believe the child was an
Indian child, so no further inquiry was required. We conclude the matter should be
remanded for further inquiry.
A. Applicable Law
“ICWA establishes minimum federal standards that a state court must follow
before removing Indian children from their families. [Citation.] California law
implementing ICWA also imposes requirements to protect the rights of Indian children,
their families, and their tribes.” (In re Ricky R. (2022) 82 Cal.App.5th 671, 678,
disapproved on other grounds, as stated in In re Dezi C. (2024) 16 Cal.5th 1112, 1152, fn.
18 (Dezi C.).) DPSS and the juvenile court have an “affirmative and continuing duty to
inquire” whether a child in a dependency proceeding “is or may be an Indian child.”
(§ 224.2, subd. (a).) “The duty to develop information concerning whether a child is an
Indian child rests with the court and the Department, not the parents or members of the
parents’ families.” (In re Antonio R. (2022) 76 Cal.App.5th 421, 430 (Antonio R.).)
The continuing duty can be divided into two phases—the initial duty to inquire
and the duty of further inquiry. (In re T.G. (2020) 58 Cal.App.5th 275, 290 (T.G.).) The
duty of initial inquiry “begins for a county when first contacted regarding a child,
10
including, but not limited to, asking a party reporting child abuse or neglect whether the
party has any information that the child may be an Indian child.” (§ 224.2, subd. (b)(1).)
“At the first contact with the child and each family member, including extended family
members, the county welfare department … has a duty to inquire whether that child is or
may be an Indian child.” (Ibid.) Extended family members include adults who are the
child’s stepparents, grandparents, aunts, uncles, brothers, and sisters. (25 U.S.C.
§ 1903(2); § 224.1, subd. (c).) At the first hearing on a petition, the court must ask each
party and all other interested persons present “whether they know or have reason to know
that the child is an Indian child,” and the court must “instruct the parties and persons
present to inform the court if they subsequently receive information that provides reason
to know the child is, or may be, an Indian child.” (§ 224.2, subd. (c).) The court must
also order each parent to complete a Judicial Council form ICWA-020, Parental
Notification of Indian Status. (Cal. Rules of Court, rule 5.481(a)(2)(C) & (3).)
“Second, if that initial inquiry creates a ‘reason to believe’ the child is an Indian
child, then the Agency ‘shall make further inquiry regarding the possible Indian status of
the child, and shall make that inquiry as soon as practicable.’” (In re D.S. (2020)
46 Cal.App.5th 1041, 1052 (D.S.); § 224.2, subd. (e).) There is reason to believe a child
is Indian when there exists “information suggesting that either the parent of the child or
the child is a member or citizen, or may be eligible for membership or citizenship, in an
Indian tribe.” (§ 224.2, subd. (e)(1).) Further inquiry includes, but is not limited to,
interviewing the parents and extended family members, contacting the BIA and the State
11
Department of Social Services for assistance in identifying the tribes in which the child
may be a member, and contacting the relevant tribe and “any other person that may
reasonably be expected to have information regarding the child’s membership,
citizenship status, or eligibility.” (§ 224.2, subd. (e)(2)(A)-(C); Cal. Rules of Court, rule
5.481(a)(4).) “[I]f that further inquiry results in a reason to know the child is an Indian
child, then the formal notice requirements of section 224.3 apply.” (D.S., supra,
46 Cal.App.5th at p. 1052.)
DPSS is obligated “to make a meaningful effort to locate and interview extended
family members to obtain whatever information they may have as to the child’s possible
Indian status.” (In re K.R. (2018) 20 Cal.App.5th 701, 709 (K.R.).) Further, the juvenile
court “has a responsibility to ascertain that the agency has conducted an adequate
investigation and cannot simply sign off on the notices as legally adequate without doing
so.” (Ibid.) If the court finds that DPSS has complied with its duty of inquiry and there
is no reason to know that the child is an Indian child, then the court may find that ICWA
does not apply. (§ 224.2, subd. (i)(2); Cal. Rules of Court, rule 5.481(b)(3)(A).) “A
juvenile court’s finding that ICWA does not apply implies ‘that social workers had
fulfilled their duty of inquiry.’” (In re Dominick D. (2022) 82 Cal.App.5th 560, 567
(Dominick D.).) “‘We review a court’s ICWA findings for substantial evidence.
[Citations.] “We must uphold the court’s orders and findings if any substantial evidence,
contradicted or uncontradicted, supports them, and we resolve all conflicts in favor of
affirmance.”’” (Id. at p. 567.)
12
B. The Court’s ICWA Finding Is Not Supported by Substantial Evidence Since
DPSS Failed To Comply With Its Duty of Inquiry
At the outset, we address DPSS’s assertion regarding the dispute as to whether the
duty of initial inquiry applies to extended family members when the child was taken into
custody pursuant to a warrant. (See Robert F., supra, 90 Cal.App.5th 492, review
granted July 26, 2023, S279743 and In re Delila D. (2023) 93 Cal.App.5th 953, review
granted Sept. 27, 2023, S281447.) The recent passage of Assembly Bill No. 81 resolved
that dispute. Section 224.2, subdivision (b)(2), now provides that when a child is taken
into custody “pursuant to a warrant described in Section 340,” the initial inquiry includes,
but is not limited to, “asking the child, parents, legal guardian, Indian custodian, extended
family members, others who have an interest in the child, and the party reporting child
abuse or neglect, whether the child is, or may be, an Indian child and where the child, the
parents, or Indian custodian is domiciled.”
Applying the current version of section 224.2, subdivision (b), as amended by
Assembly Bill No. 81, we agree with the parents that DPSS had a duty to inquire of the
paternal grandparents, paternal aunts, the MGF, and the maternal aunt and uncle, since
they qualified as extended family members. The term “extended family member” is
statutorily defined as “a person who has reached 18 years of age and who is the Indian
child’s grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece
or nephew, first or second cousin, or stepparent.” (§ 224.1, subd. (c)(1).) Notably, the
social worker made reference to the paternal grandparents, paternal aunts, the MGF, and
13
the maternal aunt and uncle, in different reports. DPSS was obligated “to make a
meaningful effort to locate and interview [them] to obtain whatever information they may
have as to the child’s possible Indian status.” (K.R., supra, 20 Cal.App.5th at p. 709.)
However, the record contains no discussion of its efforts to locate and/or interview them.
We note that mother’s claim regarding the maternal great grandparents, great
cousins, and great aunts and uncles, has no merit since DPSS had no duty to inquire of
them, as they do not qualify as extended relatives. (§ 224.1, subd. (c)(1).) Furthermore,
as to mother’s claim that DPSS did not ask the parents about “the existence of any other
such relatives who might know more about the family’s history,” we note that “section
224.2 ‘does not require the agency to “find” unknown relatives and others who have an
interest in the child, merely to make reasonable inquiries. The operative concept is those
people who are reasonably available to help the agency with its investigation into
whether the child has any potential Indian ancestry should be asked.’” (Dezi C., supra,
16 Cal.5th at p. 1140.)
Furthermore, in addition to failing to inquire of the enumerated relatives above,
DPSS erred in failing to follow up with father regarding his claim of Indian ancestry. At
the six-month hearing, he informed the court that he recently found out he had Indian
ancestry on his mother’s side. When the court asked if he knew which tribe or nation,
father said he did not know, but he could find out from his mother, and the court directed
DPSS to follow up with him on that information. However, there is no indication in the
record that DPSS did so. DPSS argues that, despite his claim that he had new
14
information about his ancestry, father “gave no reason to believe that [the child] was an
Indian child.” We disagree. There is a reason to believe a child is Indian when there
exists “information suggesting that either the parent of the child or the child is a member
or citizen, or may be eligible for membership or citizenship, in an Indian tribe.” (§ 224.2,
subd. (e)(1), italics added.) Father’s statement, at a minimum, suggested he had Indian
ancestry, and the court accordingly directed DPSS to follow up on the information.
DPSS asserts that when it attempted to gather more information from father, he
did not make himself available to be interviewed. While the record does indicate father
was difficult to locate at times, it appears that he was eventually reachable. At the
hearing on April 18, 2024, father’s counsel informed the court that father was currently in
the hospital and that mother just provided an address for him. Subsequently, father was
present at the hearing on June 13, 2024. Nonetheless, the record does not indicate that
DPSS followed up with him about his Indian ancestry claim. We note the record also
does not indicate DPSS attempted to inquire of the PGM, through whom father claimed
Indian ancestry.
DPSS concedes that it did not investigate “the paternal grandmother, paternal
aunts, maternal aunts, uncles, or cousins as part of its normal course of work.” It then
asserts that those relatives and others never contacted DPSS to request visits with DPSS.
To the extent DPSS may be claiming the extended relatives had any responsibility with
regard to ICWA, we note that “[t]he duty to develop information concerning whether a
child is an Indian child rests with the court and the Department, not the parents or
15
members of the parents’ families.” (Antonio R., supra, 76 Cal.App.5th at p. 430; see
also, T.G., supra, 58 Cal.App.5th at p. 293.) DPSS then argues “there is no evidence the
above relatives would provide new or different information about [the child’s] status as
an Indian child when compared against the evidence provided by” the parents and the
MGM. However, as the Supreme Court recently held in Dezi C., “[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 makes
that information known, it is impossible to know what the inquiry might reveal.’”
(Dezi C., supra, 16 Cal.5th at p. 1136.) Accordingly, the Supreme Court held that “error
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 rule 5.481(a)(5), and when necessary,
comply with the notice provision of section 224.3.” (Ibid.)
Therefore, because the paternal grandparents, paternal aunts, the MGF, and the
maternal aunt and uncle, were not asked about the child’s possible Indian ancestry, the
court should not have found that ICWA did not apply. (See In re K.T. (2022)
76 Cal.App.5th 732, 744.) Further inquiry of these relatives, as well as father, is still
required. The order terminating parental rights must therefore be conditionally reversed,
and the matter remanded for DPSS to make the proper inquiry. (§ 224.2, subds. (b) and
(c).) If the inquiry reveals a reason to believe the child is an Indian child, the court shall
16
proceed in conformity with ICWA and California implementing provisions. (Dezi C.,
supra, 16 Cal.5th at p. 1152.)
DISPOSITION
The order terminating parental rights is conditionally reversed. The matter is
remanded to the juvenile court with directions to comply with the inquiry provisions of
ICWA and of Welfare and Institutions Code sections 224.2 (and, if applicable, the notice
provisions as well) — specifically, to inquire of the paternal grandparents, paternal aunts,
the MGF, and the maternal aunt and uncle regarding the child’s Native American
ancestry. If, after completing the inquiry, neither DPSS nor the court has reason to
believe or know the child is an Indian child, the order terminating parental rights shall be
reinstated. If DPSS or the court has reason to believe that the child is an Indian child, the
court shall proceed in conformity with ICWA and California implementing provisions.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J.
We concur:
CODRINGTON Acting P. J.
RAPHAEL J.
17
AI Brief
AI-generated · verify before citing
Holding. The court conditionally reversed the termination of parental rights because the Department of Public Social Services failed to fulfill its duty of inquiry under ICWA by neglecting to interview available extended family members and failing to follow up on the father's claim of Native American ancestry.
Issues
Whether the Department of Public Social Services failed to comply with its duty of inquiry under ICWA regarding the child's potential Native American ancestry.
Whether the juvenile court's finding that ICWA did not apply is supported by substantial evidence given the failure to interview extended family members and the father.
Disposition. Reversed with directions.
Quotations verified verbatim against the opinion
“The duty to develop information concerning whether a child is an Indian child rests with the court and the Department, not the parents or members of the parents’ families.”
“The order terminating parental rights is conditionally reversed. The matter is remanded to the juvenile court with directions to comply with the inquiry provisions of ICWA and of Welfare and Institutions Code sections 224.2”