Riverside Cty. Dep't of Pub. Soc. Serv. v. John F. (In re Samantha F.)

318 Cal.Rptr.3d 575

IN RE SAMANTHA F., a Person Coming Under the Juvenile Court Law.

Riverside County Department of Public Social Services, Plaintiff and Respondent,

v.John F., Defendant and Appellant.

E080888

Court of Appeal, Fourth District, Division 2.

Filed February 22, 2024

Certified for Partial Publication.^*

APPEAL from the Superior Court of Riverside County. Natalie M. Lough, Judge. Reversed and remanded. (Super.Ct.No. INJ2100356)

Deanna L. Lopas, under appointment by the Court of Appeal, for Defendant and Appellant.

Minh C. Tran, County Counsel, and Teresa K.B. Beecham and Catherine E. Rupp, Deputy County Counsel, for Plaintiff and Respondent.

OPINION

RAPHAEL, J.

John F. (father) appeals from orders terminating parental rights over his young daughter Samantha F. He argues the Riverside County Department of Public Social Services (department) did not sufficiently inquire into Samantha’s possible Indian ancestry under the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. § 1901 et seq.¹ We agree. We reverse and remand for the juvenile court to ensure the department completes the ICWA inquiry.²

We publish part of this opinion intending to add two points to the ongoing discussion about the required scope of that inquiry, currently under review by our Supreme Court in In re Ja.O. (2023) 91 Cal.App.5th 672, 308 Cal.Rptr.3d 596 (Ja.O.), review granted July 26, 2023, S280572. Specifically, we address the meaning of the terms "protective custody" and "temporary custody" as they are used in our dependency statutes, and the application of federal law to the ICWA inquiry, This analysis provides additional reasons, beyond those persuasively articulated in In re Delila D. (2023) 93 Cal.App.5th 953, 311 Cal.Rptr.3d 459 (Delila D.), review granted September 27, 2023, S281447, and similar cases, why the Legislature did not intend the initial ICWA inquiry to differ depending on whether the child was removed from parental care with or without a warrant.

I. BACKGROUND

Samantha was born in 2021 and has three older siblings who are not involved in this appeal. During the dependency, mother and father repeatedly denied that Samantha had any Indian heritage. The record does not specify whether the department asked any other relatives about Samantha’s possible Indian heritage.

In December 2021, the department took Samantha into protective custody pursuant to a warrant based on evidence she was endangered by maternal neglect and paternal criminal activity. During its investigation, the department learned that an older half sibling had stopped attending school and allegedly was "hanging out with" a 20-year-old man. Another older half sibling reported father was violent towards mother, including while she was pregnant with Samantha. Mother also told the department she had a history of intimate partner violence, including from father, and she was concerned father was using methamphetamine. Father at first denied any criminal history or drug use but then admitted he had used methamphetamine daily for almost three years. He refused a drug test and told the department he would take a drug test only under court order.

The department petitioned under Welfare and Institutions Code section 300³ on Samantha’s behalf, alleging, among other things, that mother and father had a history of domestic violence, mother had untreated mental health issues, and father struggled with substance abuse. At the detention hearing, the juvenile court detained Samantha from mother and father. Paternal grandparents and a paternal aunt attended that hearing.

At the February 2022 jurisdiction/disposition hearing, the court sustained all the allegations in the amended petition and ordered reunification services for both parents. Mother, father, and three paternal relatives attended the hearing.

In March 2022, the department placed Samantha with her paternal grandmother. After nearly another year of reunification services, on February 28, 2023, the court adopted the department’s recommendation and terminated father’s parental rights. Father appealed.

II. ANALYSIS

Father argues the department failed to conduct a sufficient initial inquiry into Samantha’s Indian heritage because it did not include extended family members. The department argues its initial inquiry duty did not include asking extended family about Indian heritage because Samantha was initially removed by warrant. We agree with father.

A. Recent ICWA Initial Inquiry Caselaw

[1, 2] ICWA establishes minimum national standards "for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture." (25 U.S.C. § 1902.) Under California law, the juvenile court and county child welfare department 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); see In re D.F. (2020) 55 Cal. App.5th 558, 566, 269 Cal.Rptr.3d 535 (D.F.).) "This continuing duty can be divided into three phases: the initial duty to inquire, the duty of further inquiry, and the duty to provide formal ICWA notice." (D.F., at p. 566, 269 Cal.Rptr.3d 535.) Only the initial duty is at issue in this appeal.

[3] The initial duty applies in every dependency. (In re J.S. (2021) 62 Cal. App.5th 678, 686, 276 Cal.Rptr.3d 876; see § 224.2, subd. (b).) It "begins with the initial contact, including, but not limited to, asking 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).) This means that the department has a duty to inquire about Indian heritage even when merely investigating an allegation, or when providing services to maintain a child in their home.

The initial duty expands under subdivision (b) of section 224.2 when a child is removed from their home, because such removal increases the possibility of "involuntary out-of-home placement" of Indian children. (§ 224, subd. (a)(1).) Under that provision, "[i]f a child is placed into the temporary custody of a county welfare department pursuant to Section 306," the department’s obligation includes asking the "extended family members" about the child’s Indian status.⁴ (§ 224.2, subd. (b).) The Legislature added this language in Assembly Bill No. 3176 (2017-2018 Reg. Sess.), which made ICWA-related changes to the Welfare and Institutions Code, effective January 1, 2019. (Stats. 2018, ch. 833, § 5.) The Judicial Council revised rule 5.481 of the California Rules of Court to implement section 224.2, subdivision (b), by requiring inquiry of extended family in every case in which the department seeks to place the child: "The party seeking a foster-care placement, … termination of parental rights, preadoptive placement, or adoption must ask the child, if the child is old enough, and the parents, Indian custodian, or legal guardians, extended family members, others who have an interest in the child, and where applicable the party reporting child abuse or neglect, whether the child is or may be an Indian child …. " (Cal. Rules of Court⁵, rule 5.481(a)(1), italics added.)

Opinions from our division disagree on whether that rule of court correctly interprets the statute by requiring the department to inquire of extended family members in every case where a child is removed from home. In re Robert F. (2023) 90 Cal.App.5th 492, 307 Cal. Rptr.3d 228 (Robert F), review granted July 26, 2023, S279743, held the statute requires the department’s inquiry to include extended family members only when the child is taken into custody without a warrant. Robert F. reached that conclusion by following the concurring opinion in In re Adrian L. (2022) 86 Cal.App.5th 342, 357-358, 302 Cal.Rptr.3d 317 (Adrian L.). Adrian L., in turn, reached that conclusion by limiting the phrase " ‘placed into the temporary custody of a county welfare department pursuant to Section 306’" (Robert, F., at p. 500, 307 Cal.Rptr.3d 228) to the exercise of the department’s authority "to take children into temporary custody ‘without a warrant’ in certain circumstances." (Robert F., at p. 497, 307 Cal.Rptr.3d 228; see Adrian L., at pp. 357-358, 302 Cal.Rptr.3d 317 (conc. opn. of Kelley, J.).) Robert F. adopted the Adrian L. concurrence’s view that "[a] department that takes a child into protective custody pursuant to a warrant does so under section 340, not section 306." (Robert. F., at p. 497, 307 Cal.Rptr.3d 228.) Later, Ja. O., supra, 91 CalA.pp.5th at pp. 677-678, 308 Cal.Rptr.3d 596 adopted that reading of section 224.2, subdivision (b). Yet another opinion then disapproved of rule 5.481 to the extent that it required an extended family inquiry in cases where the child was removed by warrant. (In re, Andres R. (2023) 94 Cal.App.5th 828, 312 Cal.Rptr.3d 629 (Andres R.), review granted Nov. 15, 2023, S282054.)

[4] Unlike these cases, Delila D., supra, 93 Cal.App.5th 953, 311 Cal.Rptr.3d 459, found Robert F.’s statutory interpretation "contrary to both the letter and spirit of Assembly Bill 3176." (Delila D., at p. 962, 311 Cal.Rptr.3d 459.) Delila D. reasoned that because section 306, subdivision (a)(1), grants the department the authority to "receive and maintain" temporary custody of a child when "delivered" to a social worker by law enforcement, temporary custody includes children brought to the department after removal by a warrant. (Id. at pp. 971-972, 311 Cal.Rptr.3d 459.) Thus, Delila D. held "there is only one duty of initial inquiry, and that duty encompasses available extended family members no matter how the child is initially removed from home." (Ibid.) Under Delila D., section 224.2, subdivisions (a) and (b), as well as rule 5.481, social workers have "a duty of initial inquiry that begins at first contact, lasts throughout the proceeding, and includes ‘but is not limited to’ the reporting party, the child’s parents and extended family members, and...