California Court of Appeal Jun 29, 2023 No. E080199Unpublished
Filed 6/29/23 In re S.L. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 S.L. et al., Persons Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E080199
Plaintiff and Respondent, (Super.Ct.No. DPIN2200065)
v. OPINION
M.L.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Susanne S. Cho, Judge.
Affirmed.
Richard L. Knight, under appointment by the Court of Appeal, for Defendant and
Appellant.
Minh C. Tran, County Counsel, Teresa K.B. Beecham and Catherine E. Rupp,
Deputy County Counsel, for Plaintiff and Respondent.
1
INTRODUCTION
M.L. (mother) appeals from the juvenile court’s jurisdictional and dispositional
orders as to her children, S.L., J.L., and A.L. (the children). Mother’s sole contention on
appeal is that the juvenile court and the Riverside County Department of Public Social
Services (DPSS) failed to comply with the duty of inquiry under the Indian Child Welfare
it had no duty to ask extended family members about the children’s potential Indian
status since the children were taken into protective custody pursuant to a warrant.
(§§ 224.2, subd. (b), 340.) We agree with DPSS and affirm the court’s orders.
PROCEDURAL BACKGROUND
On September 16, 2022, DPSS received an immediate response referral alleging
physical abuse and general neglect of A.L. and risk of abuse of mother’s four other
children—J.L., S.L, A.V., and A.E. It was reported that A.L. had a bruise on the right
side of her eye. A social worker interviewed mother, who denied knowing how A.L. got
the bruise. The social worker spoke with A.L., who initially said mother hit her, but then
retracted her statement and said she got hurt at school by a boy. J.L. disclosed that
mother hit him with a wooden stick, “other hard stuff,” and a belt. S.L. disclosed that
mother hit him and his siblings.
1 All further statutory references will be to the Welfare and Institutions Code unless otherwise indicated. 2
On September 22, 2022, DPSS obtained protective custody warrants (§ 340) for all
five children from the Riverside County Juvenile Court, and social workers placed them
in protective custody.
On September 27, 2022, DPSS filed a section 300 petition on behalf of all the
children, alleging S.L., J.L., and A.L. came within the provisions of subdivision (a)
(serious physical harm) and (b) (failure to protect), and that A.V. and A.E. came within
the provisions of subdivision (b) and (j) (abuse of sibling).2 The petition listed S.L.
(Father L.) as the father of S.L., J.L., and A.L.; F.V. (Father V.), as the father of A.V.;
and A.E. (Father E.) as the father of A.E.
On September 16, 2022, mother stated she had no Native American ancestry. On
September 22, 2022, Father E. and Father V. also reported they had no Native American
ancestry, and on September 26, 2022, Father L. reported the same.
The court held a detention hearing on September 28, 2022. Father L. and Father
E. each filed a Judicial Council Form, form ICWA-020 (ICWA-020), stating neither had
Indian heritage. Father V. filed an ICWA-020 form stating he was or might be a member
of the Yaqui tribe of Arizona. Mother filed an ICWA-020 form and checked the box
indicating that one or more of her relatives “is or was a member of a federally recognized
tribe”; however, she did not identify the tribe. The court ordered DPSS to interview
mother for more information. It also ordered all parents to provide any information about
any kind of Indian background they may have.
2 DPSS subsequently filed an amended section 300 petition to add and modify some of the factual allegations under subdivision (b). 3
The court held a contested detention hearing on October 4, 2022. The court
declared Father E. the presumed father of A.E., Father V. the presumed father of A.V.,
and Father L. the presumed father of the rest of the children. It also found that ICWA did
not apply and that DPSS had conducted a sufficient inquiry. The court found that a prima
facie case had been made, and the children came within section 300; however, it ordered
that A.E. and A.V. remain in the care of their respective fathers and detained the other
children. It then set a jurisdiction hearing.
The social worker filed a jurisdiction/disposition report on November 9, 2022, and
indicated that the court had determined ICWA did not apply at the hearing on October 4,
2022. On October 26, 2022, mother confirmed she had no Native American ancestry.
On October 28, 2022, Father E. confirmed he had no Native American ancestry. On
October 30, 2022, Father L. confirmed he had no Native American ancestry, and his
mother and grandmother also denied having Native American ancestry. On October 31,
2022, Father V. stated his grandmother told him her family had Pascua Yaqui ancestry,
but neither he nor his mother was registered with the tribe. Mother also reported that she
was raised by her mother and maternal great grandmother, and her father “was not
involved while she was growing up.” Mother said she had some contact with her paternal
half siblings, who lived in Apple Valley, California.
The court held a jurisdiction hearing on November 15, 2022, and again found that
ICWA did not apply. It sustained the petition and adjudged the children dependents of
the court. The court ordered that A.V. and A.E. remain in their respective father’s
custody and be made available to DPSS for welfare checks. The court removed the other
4
three children from mother and Father L. and ordered reunification services to be
provided. The court set a six-month review hearing for mother and Father L., and a
family maintenance hearing for the other fathers for May 1, 2023.
DISCUSSION
Under the Plain Language of Section 224.2, DPSS Was Not Required to Ask Extended
Family Members About the Children’s Potential Indian Ancestry
Mother argues that the court failed to require DPSS to inquire of all of her and
Father L.’s “readily obtainable” extended family members about the potential Indian
ancestry of their children. Relying on section 224.2, subdivision (b), she asserts that
DPSS failed to inquire of the following maternal extended family members: the maternal
great-grandmother, mother’s paternal half siblings, and “the rest of her family.” As to the
paternal extended family members, she states DPSS failed to inquire of Father L.’s
maternal grandparents, a paternal aunt, a paternal uncle, and a paternal aunt or uncle
(Angel). DPSS responds that since the children were removed pursuant to custody
warrants under section 340, it had no duty to inquire of extended family members. We
agree with DPSS.
“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 (Ricky
R.).) 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,
5
subd. (a).) “The duty to inquire consists of two phases—the duty of initial inquiry and
the duty of further inquiry.” (Ricky R., at p. 678.) We note that this case does not
concern the duty of further inquiry, which arises only if the court or the department has
“reason to believe that an Indian child is involved.” (§ 224.2, subd. (e).)
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).) Under section 224.2, subdivision (b), once
a child has been 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 “[i]f [the] child [has been] placed into the
temporary custody of a county welfare department pursuant to Section 306 . . . .”
(§ 224.2, subd. (b).)3
“Section 306 permits a social worker to take a child into temporary custody
‘without a warrant’ in emergency situations—namely, when ‘the social worker has
reasonable cause to believe that the child has an immediate need for medical care or is in
immediate danger of physical or sexual abuse or the physical environment poses an
immediate threat to the child’s health or safety.’ ” (In re Robert F. (2023) 90
Cal.App.5th 492, 500-501 (Robert F.); see § 306, subd. (a)(2).) In contrast, section 340
3 In all instances, “[a]t the first appearance in court of each party, the court shall ask each participant present in the hearing whether the participant knows or has reason to know that the child is an Indian child. The court shall [also] instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child.” (§ 224.2, subd. (c).) 6
authorizes the juvenile court to issue protective custody warrants when a section 300
petition has been filed and “the circumstances of [the minor’s] home environment may
endanger the health, person, or welfare of the minor, or whenever a dependent minor has
run away from his or her court-ordered placement.” (§ 340, subd. (a).) A court may also
issue a protective custody warrant without a section 300 petition. (§ 340, subd. (b).)
“[S]ection 340 requires neither imminent danger nor the threat of physical harm for the
court to issue a warrant.” (Robert F., at p. 501.)
The language of section 224.2, subdivision (b), is clear. It plainly states: “If a
child is placed into the temporary custody of a county welfare department pursuant to
Section 306 . . . the county welfare department . . . has a duty to inquire whether that
child is an Indian child.” (§ 224, subd. (b), italics added.) As we recently explained in
detail in Robert F., the legislative history supports the view that the Legislature intended
to apply section 224.2, subdivision (b), narrowly. (See Robert F., supra, 90 Cal.App.5th
at p. 501.) “The Legislature intended to impose a duty to question extended family
members if the child was placed into the county welfare department’s temporary custody
under section 306.” (Id. at p. 500.)
7
In this case, the children were not placed into DPSS’s temporary custody