Amador Cnty. Dep't of Soc. Servs. v. R.L. (In re C.L.)

96 Cal.App.5th 377

314 Cal.Rptr.3d 336

IN RE C.L., a Person Coming Under the Juvenile Court Law.

Amador County Department of Social Services, Plaintiff and Respondent,

v.R.L., Defendant and Appellant.

C097911

Court of Appeal, Third District, California.

Filed October 13, 2023

Carol A. Koenig, Half Moon Bay, under appointment by the Court of Appeal, for Defendant and Appellant.

Gregory G. Gillott, County Counsel, and Lesley C. Barlow, Deputy County Counsel, for Plaintiff and Respondent.

MESIWALA, J.

Appellant R.L., presumed father (father) of minor C.L. (the minor), appeals from the juvenile court's order terminating father's parental rights and freeing the minor for adoption. ( Welf. & Inst. Code, §§ 366.26, 395; all further undesignated statutory references are to the Welfare and Institutions Code.) The minor's mother (mother) is not a party to this appeal.

The minor was removed from his parents through a protective custody warrant under section 340. Father contends the Amador County Department of Social Services (the department) failed to comply with the initial inquiry requirements of California law implementing the Indian Child Welfare Act of 1978 ( 25 U.S.C. § 1901 et seq. ; ICWA) because the department did not inquire of extended family members as to the minor's Indian ancestry when he was removed.

We agree with father and hold that the duty to inquire of extended family members applies when removal is made via a section 340 protective custody warrant. Because the department failed to comply with this duty, remand is required. Remand is also required because father stated that his great-grandmother was full-blooded Cherokee at the detention hearing, triggering a duty of further inquiry into the minor's Indian ancestry. This further inquiry duty was not satisfied. We conditionally reverse the order terminating parental rights.

FACTUAL AND PROCEDURAL BACKGROUND

The minor was removed via protective custody warrant based on a failure to thrive diagnosis and his parents’ refusal to take him to a hospital to be treated for an infection. The department filed a dependency petition on behalf of the minor, alleging he fell within the meaning of section 300, subdivision (b) (failure to protect). According to the detention report filed with the petition, the social worker asked the minor's parents if they had any known Indian ancestry and mother stated that father's family " ‘has Cherokee but not enough to count and nothing to back it up. [The minor] would only be like 1/32 if not less.’ " The social worker concluded that the minor did not "meet the criteria to be eligible for membership in an Indian tribe, as he is not a member of a tribe nor is he the biological child of a member of an Indian tribe."

At the detention hearing, the court (Judge J.S. Hermanson) asked both parents whether they were aware of any Indian ancestry. Mother responded that she wasn't sure, and father responded that his great-grandmother was full-blooded Cherokee but stated this couldn't be verified by any records. The court found a prima facie case to detain the minor from his parents. The court's minute order indicated the court found ICWA may apply, while its completed finding and orders after detention hearing form indicated it found no reason to believe or know that the minor is an Indian child and ICWA does not apply. No additional inquiry regarding the minor's Indian ancestry was made.

For purposes of the jurisdictional and dispositional hearings, the department reported that ICWA did not apply. Following the dispositional hearing, the court (Judge Renee C. Day) found no reason to know the child is an Indian child. At the selection and implementation hearing, the court (Judge Renee C. Day) found the minor likely to be adopted and terminated parental rights.

DISCUSSION

"Congress enacted ICWA in 1978 in response to ‘rising concern in the mid-1970's over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.’ " ( In re Isaiah W. (2016) 1 Cal.5th 1, 7, 203 Cal.Rptr.3d 633, 373 P.3d 444.) Those problematic practices were due to "a lack of culturally competent State child-welfare standards for assessing the fitness of Indian families; systematic due process violations against both Indian children and their parents during child-custody procedures; economic incentives favoring removal of Indian children from their families and communities; and social conditions in Indian country." ( 81 Fed.Reg. 38778, 38780 (June 14, 2016).) The goal of ICWA is to "protect the best interests of Indian children and to promote the stability and security of Indian tribes and families." ( 25 U.S.C. § 1902.) To meet that goal, ICWA establishes minimum standards for removal of Indian children from their families. ( Ibid. ) A threshold matter in a dependency proceeding is determining whether the child is an Indian child. Under ICWA, an " ‘Indian child’ " is a child who "is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." ( 25 U.S.C. § 1903(4).)

California law implementing ICWA imposes requirements to protect the rights of Indian children and their families and tribes. ( §§ 224 - 224.6.) In particular, the juvenile court and the social services department have an " ‘affirmative and continuing duty to inquire’ whether a child in a dependency proceeding ‘is or may be an Indian child.’ " ( In re Ricky R. (2022) 82 Cal.App.5th 671, 678, 298 Cal.Rptr.3d 602 ( Ricky R. ), quoting § 224.2, 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, 298 Cal.Rptr.3d 602.) Father's argument concerns both phases. We begin with the initial inquiry.

I. Initial Inquiry

California's juvenile dependency statutes allow the state to take custody of juveniles in advance of a detention hearing in limited situations, both with and without a warrant. (See, e.g., §§ 305, 305.6, 306, 340.) The parties dispute the extent of inquiry required under California's ICWA statutes when the child is removed via protective custody warrant, specifically whether the county welfare department needs to ask extended relatives whether the child has any Indian ancestry. Because this dispute requires the interpretation of statutory language, we begin with the rules governing statutory construction.

Questions of statutory construction present issues of law subject to independent review on appeal. ( Honchariw v. County of Stanislaus (2013) 218 Cal.App.4th 1019, 1026, 160 Cal.Rptr.3d 609.) We begin with the statutory language because it is generally the most reliable indication of legislative intent, and if the statutory language is unambiguous, we usually adopt the plain meaning of the statute. ( Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 45, 105 Cal.Rptr.3d 181, 224 P.3d 920.) This "plain meaning" rule does not require us to automatically adopt the literal meaning of a statutory provision. ( Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332, 104 Cal.Rptr.3d 219, 223 P.3d 77.) "For example, when a literal construction would frustrate the purpose of the statute, that construction is not adopted." ( Honchariw , at p. 1027, 160 Cal.Rptr.3d 609.) Instead, "[t]he intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act." ( Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735, 248 Cal.Rptr. 115, 755 P.2d 299.) In addition, "[r]emedial statutes should be broadly and liberally construed to promote the underlying legislative goals." ( Estate of Stoker (2011) 193 Cal.App.4th 236, 242, 122 Cal.Rptr.3d 529.)

Here, the text at issue appears in section 224.2, subdivisions (a) and (b). Section 224.2, subdivision (a) establishes the affirmative and continuing duty of the county welfare department and the court to inquire whether a child for whom a detention petition has or may be filed is or may be an Indian child. Subdivision (a) goes on to specify that this duty to inquire begins with the initial contact and includes asking the party reporting child abuse or neglect whether that party has any information that the child may be an Indian child.

Section 224.2, subdivision (b) consists of two sentences. The first sentence provides that the county welfare department has the duty to inquire whether the child is an Indian child if the child "is placed into the temporary custody of a county welfare department pursuant to [s]ection 306 or county probation department pursuant to [s]ection 307." ( § 224.2, subd. (b).) The second sentence reads as follows: "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." ( § 224.2, subd. (b).)

Father contends that the inquiry definition — specifically, the requirement to ask extended family members — applies as part of the department's initial inquiry where the child is detained through a protective custody warrant. The department counters that such inquiry is required only when the child is placed in temporary custody under section 306, and that did not occur here. This issue reflects a split within the Courts of Appeal that is under review by the California Supreme Court.

Early decisions from the Court of Appeal, Fourth Appellate District aligned with father, holding that the duty of initial inquiry in section 224.2, subdivision (b) "applies in every dependency proceeding." ( Ricky R. , supra , 82 Cal.App.5th at p. 678, 298...