California Court of Appeal Mar 3, 2023 No. E079489Unpublished
Filed 3/3/23 In re P.F. CA4/2 See Concurring and 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 P.F. et al., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E079489
Plaintiff and Respondent, (Super.Ct.No. SWJ2200160)
v. OPINION
D.F.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Michael J. Rushton,
Judge. Affirmed in part; reversed in part and remanded with directions.
Jill Smith, under appointment by the Court of Appeal, for Defendant and
Appellant.
Minh C. Tran, County Counsel, Teresa K.B. Beecham ad Julie K. Jarvi, Deputy
County Counsel, for Plaintiff and Respondent.
1
INTRODUCTION
D.F. (father) appeals from the juvenile court’s jurisdictional and dispositional
orders as to his children, P.F. and N.F. (the children). Father’s sole contention on appeal
is that the juvenile court and the Riverside County Department of Public Social Services
(DPSS) failed to comply with their duty of initial inquiry under the Indian Child Welfare
Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA) and related California statutes. DPSS
concedes error. We vacate the court’s finding that ICWA did not apply and remand for
compliance with ICWA and related California law, but otherwise affirm the jurisdictional
and dispositional orders.
PROCEDURAL BACKGROUND
On April 5, 2022, a Welfare and Institutions Code1 section 300 petition was filed
on behalf of the children alleging they came within subdivisions (b) (failure to protect)
and (g) (no provision for support). The children lived with father, and the whereabouts of
their mother, J.P. (mother)2 were unknown. A California Judicial Council Forms, form
ICWA-010 (Indian Child Inquiry Attachment) was filed with the petition, stating that
father was questioned and did not give DPSS a reason to believe the children were Indian
children.
At the initial hearing held on April 20, 2022, father appeared along with the
paternal stepgrandfather and a paternal aunt. The court asked father if he had any Native
1 All further statutory references will be to the Welfare and Institutions Code unless otherwise indicated.
2 Mother is not a party to this appeal. 2
American ancestry, and he responded, “Not enough to even speak of.” Father stated his
aunt said the family had some Native American ancestry, but he “never went and actually
did everything.” The court asked father if he knew of a tribe he might be affiliated with,
and father responded, “No. It’s not even enough.” He added, “I can’t even get you any
information if we are. I just heard from the grapevine in my family that we have enough
Indian as to get free Medi-Cal on the reservation.” The court concluded, “I don’t believe
I have reason to believe at this point in time with that rumored information, so I’ll adopt
the ICWA findings” that DPSS conducted a sufficient inquiry and ICWA did not apply to
these proceedings. The court asked father if mother had any Indian ancestry, and he said
no. The court then detained the children in foster care. That day, father filed a Judicial
Council Forms, form ICWA-020 (Parental Notification of Indian Status), indicating that
none of the options on the form applied (e.g., neither he nor the children were members
of, or eligible for membership in, an Indian tribe).
On May 6, 2022, the social worker filed a jurisdiction/disposition report stating
that on April 29, 2022, father denied there was Native American ancestry in his family.
She also reported the children were placed in an approved non-relative extended family
members (NREFM) home. The social worker further reported that DPSS was continuing
its efforts to locate mother. On May 3, 2022, a social worker made an in-person visit to
mother’s last known address and contacted the maternal grandmother, who said mother
had not lived at that address in several years.
The social worker reported that there were relatives to consider for placement. On
April 20, 2022, a referral was submitted to the Relative Family Approval (RFA) unit for
3
the paternal aunt (C.F.) to be assessed for emergency placement, but she was denied due
to her child welfare and criminal histories. On May 3, 2022, the social worker apparently
spoke with the paternal grandmother on the phone and gave her the information needed to
be considered for placement.
The social worker subsequently reported that father had a visit with the children
on June 19, 2022, and the paternal grandparents (L.H. and J.H.) attended and paid for the
children’s meals.
The court held a jurisdiction hearing on May 10, 2022, and noted that the paternal
aunt and the paternal grandfather were present in the courtroom. Father’s counsel set the
matter for contest and noted that father was currently living with the paternal aunt and
wanted the children to come home. The court stated it would allow DPSS to increase the
frequency and location of the visits, as long as they were supervised. Then, the paternal
grandfather raised his hand and said he wanted visits for the family. The court thus
authorized relatives to have visits.
The court held a contested jurisdiction hearing on June 10, 2022, and a maternal
aunt (S.M.) was present. Counsel for the children asked for a continuance and requested
that the court assess the maternal aunt for placement. Father objected to that placement,
noting that the paternal aunt was in the final stages of approval for placement, and he
wanted the children placed with her. The court ordered DPSS to commence an
assessment of the maternal aunt, and then set the matter for contest.
On June 28, 2022, the court held the contested jurisdiction hearing. Although
father appeared telephonically, the paternal grandfather, a paternal cousin, and the
4
maternal aunt were present in the courtroom. The court was informed that the maternal
aunt had been approved for placement, but the paternal aunt’s approval was still pending.
Then the paternal grandfather addressed the court and asked for visitation and placement
of the children. The court engaged in a discussion with him and said it would order
unsupervised visitation and order DPSS to initiate a relative placement. The court set the
matter for July 19, 2022.
On July 19, 2022, the court held a hearing, and father was present, along with the
paternal grandfather and paternal cousin. The court found that DPSS did a sufficient
inquiry regarding whether the children may have Indian heritage and that ICWA did not
apply. It then sustained the petition, adjudged the children dependents of the court,
removed them from father’s custody, and ordered reunification services.
DISCUSSION
Father contends the juvenile court and DPSS failed to comply with their initial
duty of inquiry with respect to ICWA and, thus, there was insufficient evidence to
support the court’s finding that ICWA did not apply. He requests this court to reverse the
jurisdiction and dispositional findings and orders and remand the matter for compliance
with ICWA. DPSS concedes it failed to comply with its initial duty of inquiry, but
argues there is no need to vacate any findings and orders since its ICWA duties are
continuing. We vacate the ICWA finding and remand for compliance with ICWA and
related California law but otherwise affirm the jurisdictional and dispositional orders.
5
A. Applicable Law
ICWA requires that notice of the state court proceedings be given to Indian tribes
“where the court knows or has reason to know that an Indian child is involved, . . .”
(25 U.S.C. § 1912(a); see In re Isaiah W. (2016) 1 Cal.5th 1, 8 (Isaiah W.); In re
Benjamin M. (2021) 70 Cal.App.5th 735, 740-741 (Benjamin M.).) ICWA’s notice
requirement, which is also codified in California law (§ 224.3), “enables a tribe to
determine whether the child is an Indian child and, if so, whether to intervene” in the
state court proceeding or exercise its own jurisdiction in the matter. (Isaiah W., at p. 5.)
Although “ICWA itself does not impose a duty on courts or child welfare agencies
to inquire as to whether a child in a dependency proceeding is an Indian child,” federal
regulations implementing ICWA “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.’ [Citation.] The court
must also ‘instruct the parties to inform the court if they subsequently receive information
that provides reason to know the child is an Indian child.’ ” (In re Austin J. (2020)
47 Cal.App.5th 870, 882-883 (Austin J.), superseded by statute on other grounds as stated
in In re E.C. (2022) 85 Cal.App.5th 123, 147; see 25 C.F.R. § 23.107(a) (2022).)
Under California law, the juvenile court and social services agency 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).) This duty consists of three phases:
the initial duty to inquire, the duty of further inquiry, and the duty to provide formal
6
ICWA notice. (In re D.F. (2020) 55 Cal.App.5th 558, 566.) Only the initial duty of
inquiry is at issue here.
The duty of initial inquiry begins with the initial contact when DPSS must ask “the
party reporting child abuse or neglect whether the party has any information that the child
may be an Indian child.” (§ 224.2, subd. (a).) Once a child is taken into temporary
custody, DPSS must 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, grandparents, aunts, uncles, brothers, sisters, nieces, nephews, or first or
second cousins. (25 U.S.C. § 1903(2); § 224.1, subd. (c).) 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.) 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.), citing Austin J., supra, 47 Cal.App.5th at
p. 885.)
7
“[W]e review the juvenile court’s ICWA findings under the substantial evidence
test, which requires us to determine if reasonable, credible evidence of solid value
supports the court’s order.” (In re A.M. (2020) 47 Cal.App.5th 303, 314; see Austin J.,
supra, 47 Cal.App.5th at p. 885 [implicit finding, reviewed for substantial evidence, that
social workers fulfilled their duty of inquiry].)
B. The Court’s ICWA Finding Is Not Supported by Substantial Evidence Since
DPSS Failed to Satisfy its Duty of Inquiry
Father argues the juvenile court’s finding that ICWA does not apply is not
supported by substantial evidence since DPSS did not discharge its statutory duty of
initial inquiry. DPSS concedes “the record does not reflect that relatives who were
readily available were asked about Native American ancestry in the family” and
acknowledges that it must comply with its duty to complete all appropriate inquiries. We
agree with the parties that DPSS failed to satisfy its initial duty of inquiry.
Section 224.2 required DPSS to inquire of the children’s extended family
members regarding their possible Indian ancestry, and it was error for DPSS to fail to do
so. (In re Antonio R. (2022) 76 Cal.App.5th 421, 431; In re J.W. (2022) 81 Cal.App.5th
384, 389 [error not to ask the mother’s extended family members about their Indian
ancestry despite having contact with a grandmother, uncle, and aunt].) There were both
maternal and paternal relatives available for inquiry throughout the case. DPSS had
contact with the maternal grandmother, the maternal aunt (S.M.), the paternal aunt (C.F.),
and the paternal grandparents. Furthermore, the paternal grandfather, a paternal cousin,
8
the paternal aunt, and the maternal aunt attended various hearings.3 Yet, nothing in the
record suggests these relatives were asked about the children’s Indian ancestry. By
failing to ask these extended relatives about Indian ancestry, DPSS failed to discharge its
duty of initial inquiry. (Dominick D., supra, 82 Cal.App.5th at p. 567.)
“ICWA inquiry and notice errors do not warrant reversal of the juvenile court’s
jurisdictional or dispositional findings and orders other than the ICWA finding itself.”
(Dominick D., supra, 82 Cal.App.5th at p. 567; see In re S.H. (2022) 82 Cal.App.5th 166,
175 (S.H.) [where parent on appeal solely challenges finding that ICWA does not apply,
“we need not disturb the juvenile court's jurisdiction/disposition order just because the
duty of initial ICWA inquiry has not yet been fully satisfied”]). The appropriate
disposition is to affirm the findings and orders, but vacate the finding that ICWA does not
apply, and “direct the juvenile court on remand to order [DPSS] to comply with its
inquiry and (if applicable) notice obligations under ICWA and related California law.”
(Dominick D., at pp. 567-568.)
DPSS contends there is no need to vacate the ICWA finding because ICWA
obligations are continuing duties. In support of its position, DPSS cites In re Baby Girl
M. (2022) 83 Cal.App.5th 635, in which the father argued the county agency failed to
comply with its obligations under ICWA and related California law. (Id. at pp. 636-637.)
However, in that case, the court dismissed the appeal as moot, since no effective relief
3 Father mentions that the paternal stepgrandfather was available, but not questioned. However, it does not appear that he would be considered an extended relative of the children. (25 U.S.C. § 1903(2); § 224.1, subd. (c).) 9
could be granted, as the county agency started complying with its inquiry duties after the
appeal was filed. (Id. at pp. 638-639.) Here, there is no indication DPSS has started
complying with its duties.
We acknowledge that the First District Court of Appeal, in a case with a similar
procedural posture as the instant case, chose to simply affirm the dispositional order and
did not vacate the ICWA finding. (S.H., supra, 82 Cal.App.5th at pp. 179-180.)
However, we follow our court’s disposition in Dominick D. and vacate the ICWA finding
and remand for compliance. (Dominick D., supra, 82 Cal.App.5th at pp. 567-568.)
DISPOSITION
The finding that ICWA does not apply to the proceedings is vacated and the matter
is remanded to the juvenile court. The juvenile court is directed to order DPSS to comply
with its inquiry and (if applicable) notice obligations under ICWA and related California
law. In all other respects, the jurisdiction and dispositional findings and orders are
affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J.
I concur:
MILLER Acting P. J.
10
In re P.F. et al.; DPSS v. D.F., E079489]
MENETREZ, J., Concurring and Dissenting.
In my view, the expanded duty of initial inquiry under subdivision (b) of Welfare
and Institutions Code section 224.2 applies only if the child was taken into temporary
custody without a warrant pursuant to Welfare and Institutions Code section 306. (See In
re Adrian L. (2022) 86 Cal.App.5th 342, 355-359 (conc. opn. of Kelley, J.).) The child in
this case was detained pursuant to a warrant, so the expanded duty of initial inquiry under
subdivision (b) of Welfare and Institutions Code section 224.2 does not apply. I therefore
respectfully dissent from the majority opinion’s reasoning and result concerning the
Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) and related California law,
but I otherwise concur. I would affirm the juvenile court’s findings and orders in their
entirety.
MENETREZ J.
1
AI Brief
AI-generated · verify before citing
Holding. The court vacated the juvenile court's finding that the Indian Child Welfare Act (ICWA) did not apply because the Department of Public Social Services failed to satisfy its duty of initial inquiry by neglecting to question available extended family members. The court otherwise affirmed the jurisdictional and dispositional orders.
Issues
Did the juvenile court and the Department of Public Social Services fail to comply with the duty of initial inquiry under ICWA and related California statutes?
Does the failure to satisfy the duty of initial inquiry require vacating the jurisdictional and dispositional orders in addition to the ICWA finding?
Disposition. Affirmed in part; reversed in part and remanded with directions.
Quotations verified verbatim against the opinion
“We vacate the court’s finding that ICWA did not apply and remand for compliance with ICWA and related California law, but otherwise affirm the jurisdictional and dispositional orders.”
“By failing to ask these extended relatives about Indian ancestry, DPSS failed to discharge its duty of initial inquiry.”
“ICWA inquiry and notice errors do not warrant reversal of the juvenile court’s jurisdictional or dispositional findings and orders other than the ICWA finding itself.”