California Court of Appeal Jan 3, 2025 No. E084090Unpublished
Filed 1/3/25 In re J.P. CA4/2 See dissenting opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 J.P., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E084090
Plaintiff and Respondent, (Super.Ct.No. RIJ1201174)
v. OPINION
A.S.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Caryl A. Lee, Judge.
(Retired Judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI,
§ 6 of the Cal. Const.) Conditionally reversed and remanded with directions.
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and
Appellant.
1
Minh C. Tran, County Counsel, Teresa K.B. Beecham and Catherine E. Rupp,
Deputy County Counsel, for Plaintiff and Respondent.
A.S. (mother) appeals the order of the Riverside County Juvenile Court
terminating her parental rights as to her child, J.P. (the child) made at the Welfare and
Institutions Code section 366.26 hearing.1 We will conditionally reverse the order for
compliance with section 224.2 and rule 5.481, California’s provisions designed to
implement and enhance the Federal Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C.
§ 1901 et seq.).
BACKGROUND
The child was one day old in December 2022 when respondent Riverside County
Department of Public Social Services (the Department) took him into protective custody
pursuant to a section 340 detention warrant after he and mother tested positive for
amphetamines at the time of his birth. The Department placed the child with his paternal
great-aunt and filed a juvenile dependency petition alleging the child came within
subdivision (b)(1) of section 300.
In the course of the detention hearing, mother and the child’s father each
submitted Parental Notification of Indian Status forms (ICWA-020) indicating the child
was not an Indian child. The court found ICWA did not apply, but directed the
Department “to inquire of any relatives regarding ICWA.”
1 All further statutory references are to the Welfare and Institutions Code unless otherwise designated. References to rules are to California Rules of Court.
2
At the combined hearing on jurisdiction and disposition, the juvenile court
sustained an amended version of the petition, adjudged the child a dependent of the court,
and ordered him removed from his parents’ custody. It found his parents came within
subdivisions (b)(10) and (b)(11) of section 361.5 and that it would not be in the child’s
best interests to provide family reunification services.2 Accordingly, family reunification
services were bypassed and the court set the matter for a section 366.26 permanent plan
selection hearing. The court also found the Department had conducted a sufficient
inquiry regarding whether the child may have Indian ancestry and held ICWA did not
apply to the proceedings.
At the section 366.26 hearing, the court again made a no-ICWA finding, and
proceeded to terminate the parental rights of mother and the child’s father. Mother
timely filed this appeal.
DISCUSSION
On appeal, mother argues conditional reversal of the order terminating parental
rights is called for because the Department failed to comply sufficiently with its duty to
ask readily available maternal relatives whether the child is or may be an Indian child as
required by former subdivision (b) of section 224.2, which was in effect at the time
parental rights were terminated.
2 Section 361.5, subdivision (b)(10) and (b)(11) authorizes the juvenile court to bypass provision of family reunification services if a parent has failed to reunify with, and had their parental rights terminated as to, the child’s siblings or half siblings, and thereafter failed to make a reasonable effort to treat the problems that led to removal of the children from the parents.
3
1. The Statutory Framework
ICWA was enacted by Congress to protect the best interests of Indian children and
to promote the stability and security of Indian tribes and families in child custody
In re Ja.O. (2023) 91 Cal.App.5th 672, 677-678, review granted July 26, 2023, S280572;
In re Andres R. (2023) 94 Cal.App.5th 828, 860, review granted, Nov. 15, 2023,
S282054.)
On the other hand, the majority of another panel of this court disagreed with
Robert F., supra, 90 Cal.App.5th 492 line of cases in In re Delila D. (2023) 93
Cal.App.5th 953, 965-976, review granted September 27, 2023, S281447 (Delila D.).
Delila D. held the expanded duty of inquiry applies whether or not a child is removed
pursuant to a protective custody warrant, that is, the way a child is initially removed from
5
home has no bearing on the question of whether they may be an Indian child. (Delila D.,
supra, at pp. 965-976; accord, In re L.B. (2023) 98 Cal.App.5th 512, 516-519 (L.B.)
(First Dist., Div. Four); In re Samantha F. (2024) 99 Cal.App.5th 1062, 1068
(Samantha F.) (Fourth Dist., Div. Two); C.L., supra, 96 Cal.App.5th at pp. 385-391
(Third Dist.); In re V.C. (2023) 95 Cal.App.5th 251, 256-260 (First Dist., Div. Two);
In re Jerry R. (2023) 95 Cal.App.5th 388, 411-426 (Fifth Dist.).)
The majority of the panel in Samantha F., which embraced the reasoning of
Delila D., added that the reasoning of Robert F. is also faulty because it misconstrues the
term “protective custody” as exclusive of “temporary custody,” and erroneously
misinterprets federal ICWA law in an effort to support the notion that the protection
afforded ICWA inquiry does not apply to children removed by a warrant. (Samantha F.,
supra, 99 Cal.App.5th at pp. 1068-1069.)
Recently, the California Legislature amended as part of an urgency measure
subdivision (b) of section 224.2 “clarifying” that a county welfare department has an
obligation to inquire whether a child is an Indian child even when placed in temporary
custody pursuant to a section 340 warrant. (§ 224.2, subd. (b)(2), added by Stats. 2024,
ch. 656, § 3, eff. Sept. 27, 2024; Sen. Rules Com., Off. of Sen. Floor Analyses, 3rd
reading analysis of Assem. Bill No. 81 (2023-2024 Reg. Sess.) as amended Sept. 1, 2023,
pp. 6-8; Sen. Com. on Judiciary, com. on Assem. Bill. No. 81 (2023-2024 Reg. Sess.) for
Aug. 13, 2024 hearing, pp. 9-14; Assem. Conc. in Senate Amends. to Assem. Bill No. 81
6
(2023-2024 Reg. Sess.) as amended Aug. 19, 2024, pp. 2-3.) In its present form, the
extend inquiry provision states in relevant part that:
“If a child is … taken into or maintained in the temporary custody of a county
welfare department pursuant to paragraph (2) of subdivision (a) of Section 306, or if they
were initially taken into protective custody pursuant to a warrant described in
section 340, the county welfare department … has a duty to inquire whether that child is
an Indian child. Inquiry includes, but is not limited to, asking the child, parents, legal
guardian, Indian custodian, extended family members, others who have an interest of 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.” (§ 224.2,
subd. (b)(2).)
We recognize the general rule that applying an amended provision does not
operate retrospectively unless the Legislature plainly indicates otherwise. (In re S.B.
(2004) 32 Cal.4th 1287, 1296.) In a case like the present one, however, in which the
amendment to the statute is made to clarify existing law, then it is not retrospective
because the true meaning of the statute has not changed.3 (Ibid.)
3 In view of the clarification of the inquiry provision in former section 224.2, subdivision (b), we see no need to address the Department's argument that the expanded inquiry provision does not apply in this case because the child was removed from home pursuant to a section 340 warrant.
7
2. The Standard of Review
Generally speaking, when the juvenile court has a well-developed record, it is
afforded relatively broad discretion in making the fact-specific determination that the
child services agency complied with the expanded inquiry requirements. (In re Dezi C.
(2024) 16 Cal.5th 1112, 1141 (Dezi C.).) That is, we will uphold the court’s findings that
adequate inquiries were properly undertaken and that ICWA does not apply so long as
those conclusions are supported by sufficient evidence and documentation in the record
as required by California law (rule 5.481(a)(5)) even if the child services agency did not
inquire of everyone who has an interest in the child. (Dezi C., supra, at p. 1141.)
If, however, a record is not well developed because inquiry was not properly
undertaken and reported as required, then the juvenile court’s discretion necessarily
becomes more limited. (Dezi C., supra, 16 Cal.5th at pp. 1141, 1151.) In those cases,
conditional reversal is required because, until the Department gathers and documents the
information required by Cal-ICWA, it is not possible to know what information a
properly conducted inquiry might reveal. (Id., at pp. 1136, 1152.)
3. The Lack of Compliance with California’s Expanded ICWA Inquiry Provisions
Here, the Department was in contact with the child’s maternal aunt and maternal
great-grandparents but had not asked any of those relatives whether the child is or may be
an Indian child.
The requirement of an adequate inquiry is not met when an agency’s social
workers fail to make a Cal-ICWA inquiry of extended family members or persons with
8
an interest in the child with whom they were already in contact in the usual course of
their work. (§ 224.2, subd. (b); Dezi C., supra, 16 Cal.5th at p. 1141; L.B., supra, 98
Cal.App.5th 518-519; In re H.B. (2023) 92 Cal.App.5th 711, 720 (H.B.); In re S.S. (2023)
90 Cal.App.5th 694, 704-705 (S.S.).) Accordingly, the juvenile court’s finding that
ICWA does not apply to the child must be conditionally reversed with instructions to
make and document inquires of those maternal relatives as required by section 224.2,
subdivision (b) and rule 5.481.
The Department argues (i) it had no duty to undertake Cal-ICWA inquiry of
maternal great-grandparents because they are not extended family members, and (ii) that
its failure to ask the maternal aunt was harmless because the information in the record
about mother’s ancestry definitively establishes the child is not an Indian child. We are
not persuaded.
Even if the maternal great-grandparents do not come within the definition of
“extended family members” they are persons having an interest in the child, a category
included in the expanded inquiry provision set forth in section 224.2, subdivision (b).4
The Department was, therefore, required to ask them about the child’s ancestry. (§ 224.2,
subd. (b); Dezi C., supra, 16 Cal.5th at p. 1141; L.B., supra, 98 Cal.App.5th at pp. 518-
519; H.B., supra, 92 Cal.App.5th at p. 720; S.S., supra, 90 Cal.App.5th at pp. 704-705.)
4 What persons qualify as an extended family member is defined by law or custom of the tribe or, in the absence of such law or custom, shall be a person who has reached the age of [18] 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. (25 U.S.C. § 1903(2); § 224.1, subd. (c).)
9
The Department posits that the question whether the child comes within ICWA is
definitively answered by information in the record. It points to mother’s statements in
the ICWA-020 form submitted to the court in which she denied Native American
ancestry, and her self-identification as a “Pacific Islander” born in “Saipan, Guam.”5
What the Department overlooks is that it may not rely solely on information provided by
a parent but must comply with the Cal-ICWA extended inquiry requirements imposed on
it by the Legislature. (Dezi C., supra, 16 Cal.5th at pp. 1145-1146.) We note, too, that
even if reliance on mother’s statements without more was permissible, her birth in Guam
or Saipan would not preclude her from having Native American ancestry, a fact conceded
by the Department during oral argument.
In view of the Department’s contacts with the maternal aunt and the maternal
great-grandparents and its failure to ask them whether the child is or may be an Indian
child, we cannot find there is sufficient evidence to support the conclusion that ICWA
does not apply to the proceedings. (See In re Kenneth D. (2024) 16 Cal.5th 1087, 1101.)
Accordingly, we will conditionally reverse the order terminating parental rights.
(Dezi C., supra, 16 Cal.5th at p. 1152 [a judgment must be conditionally reversed when
error results in an inadequate Cal-ICWA inquiry].)
5 Mother’s identification of her place of birth cannot be correct. Saipan is not in Guam, but is instead located in another United States Territory, the Commonwealth of the Northern Mariana Islands.
10
DISPOSITION
The order terminating parental rights is conditionally reversed. On remand, the
juvenile court shall order the Department to comply with the duty of initial inquiry
(§ 224.2, subd. (b)(2); rule 5.481) and, if applicable, the duty of further inquiry (§ 224.2,
subd. (e)) and the duty to provide notice to the pertinent tribes (25 U.S.C. § 1912(a);
§ 224.3). If the juvenile court determines that ICWA does not apply, then the court shall
reinstate the order. If the court determines that ICWA does apply, then it shall proceed in
conformity with ICWA and related California law.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
I concur:
McKINSTER J.
11
[In re J.P., E084090]
MENETREZ, J., Dissenting.
We review for abuse of discretion the juvenile court’s determination that the
Riverside County Department of Public Social Services complied with its inquiry duties
under the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq. (ICWA)) and
related California law. (In re Dezi C. (2024) 16 Cal.5th 1112, 1141 (Dezi C.).) A.S.
(Mother) repeatedly denied that she has any Indian ancestry.1 When asked on the record
by the court, Mother answered, “No. I have none. I’m Pacific Islander.” In a subsequent
interview, Mother stated that “she was born in Saipan, Guam.” Saipan is actually in the
Northern Mariana Islands, about 135 miles from Guam, but there are no federally
recognized Indian tribes in either Guam or the Northern Mariana Islands. Given
Mother’s repeated insistence that she has no Indian ancestry and her self-identification as
a Pacific Islander from Saipan, the juvenile court did not abuse its discretion by
determining that ICWA inquiry as to the maternal side of the family was adequate. (Dezi
C., at p. 1168 (dis. opn. of Groban, J.) [“Or let us imagine a case involving a child who,
with his entire family, recently immigrated from Ukraine, thereby making it highly
improbable that the child is a member of, or may be eligible for membership in, a
federally recognized Indian tribe. Any court would be hard pressed to find that the
Department’s inquiry regarding his or her Indian ancestry was inadequate because it did
not ask his or her entire extended (Ukrainian) family about Indian descent.”].) I would
1 Because ICWA uses the term “Indian,” I use it as well “to reflect the statutory language.” (Dezi C., supra, 16 Cal.5th at p. 1125, fn. 1.) No disrespect is intended.
1
therefore affirm the order terminating parental rights, and accordingly I respectfully
dissent.
MENETREZ J.
2
AI Brief
AI-generated · verify before citing
Holding. The court conditionally reversed the order terminating parental rights because the Department failed to fulfill its statutory duty to inquire about the child's potential Indian ancestry with readily available maternal relatives.
Issues
Whether the Department complied with its duty of inquiry under Welfare and Institutions Code section 224.2 and rule 5.481 regarding the child's potential Indian status.
Whether the Department's failure to inquire of maternal relatives constitutes reversible error requiring a conditional reversal of the termination of parental rights.
Disposition. conditionally reversed and remanded
Quotations verified verbatim against the opinion
“the juvenile court’s finding that ICWA does not apply to the child must be conditionally reversed with instructions to make and document inquires of those maternal relatives as required by section 224.2, subdivision (b) and rule 5.481.”