Riverside Cty. Dep't of Pub. Soc. Serv. v. Daisy M.

320 Cal.Rptr.3d 757

IN RE D.M., a Minor Person Coming Under the Juvenile Court Law.

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

v.Daisy M., Defendant and Appellant.

E082401

Court of Appeal, Fourth District, Division 2.

Filed May 7, 2024

APPEAL from the Superior Court of Riverside County. Mona M. Nemat, Judge. Affirmed. (Super.Ct.No. RIJ2000775)

Mansi Thakkar, 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

MENETREZ J.

Daisy M. (Mother) appeals from the juvenile court’s order terminating her parental rights to her daughter, D.M. The only argument that Mother raises is that the Riverside County Department of Public Social Services (DPSS) conducted an inadequate investigation under state law implementing the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq. (ICWA)). In particular, Mother argues that DPSS failed to comply with the expanded duty of initial inquiry under Welfare and Institutions Code section 224.2, subdivision (b) (§ 224.2(b)). (Unlabeled statutory citations refer to the Welfare and Institutions Code.)

We continue to agree with In re Robert F. (2023) 90 Cal.App.5th 492, 497, 307 Cal. Rptr.3d 228 (Robert F.), review granted July 26, 2023, S279743, and In re Ja.O. (2023) 91 Cal.App.5th 672, 677-678, 308 Cal.Rptr.3d 596 (Ja.O.), review granted July 26, 2023, S280572, that the expanded duty of initial inquiry under section 224.2(b) applies only if the child was placed into temporary custody without a warrant. Also, for the reasons explained in In re Andres R. (2023) 94 Cal.App.5th 828, 840-856, 312 Cal.Rptr.3d 629 (Andres R.), review granted November 15, 2023, S282054, we remain unpersuaded by In re Delila D. (2023) 93 Cal.App.5th 953, 311 Cal.Rptr.3d 459 (Delila D.), review granted September 27, 2023, S281447, which declined to follow Robert F. We publish this opinion in order to explain why we are similarly unpersuaded by subsequent cases that follow Delila D.

Because D.M. was taken into custody pursuant to a protective custody warrant, the expanded duty of initial inquiry under section 224.2(b) was never triggered. Mother’s argument therefore fails, and we accordingly affirm the order terminating parental rights.

BACKGROUND

In November 2020, DPSS received a referral alleging general neglect of D.M. by Mother. The referral arose from a domestic violence incident between Mother and her boyfriend. The boyfriend told law enforcement that Mother threatened him with a pedicure tool and that Mother smoked methamphetamine in front of D.M. Mother agreed to keep D.M. away from her boyfriend and to submit to an on-demand urine test. Mother denied having any Indian ancestry.¹

The social worker later spoke with a maternal aunt and maternal grandmother. Both denied being aware of any domestic violence between Mother and her boyfriend. Maternal grandmother told the social worker that she did not have any Indian ancestry.

The social worker tried to reach D.M.’s father but later learned from paternal grandfather that he was in jail for violating a restraining order protecting paternal grandmother. Paternal grandfather denied having any Indian ancestry. Paternal grandfather expressed concern that father and Mother were abusing drugs and were incapable of parenting D.M. Paternal grandmother also denied having Indian ancestry. When DPSS reached father, he confirmed that he did not have any Indian ancestry.

In December 2020, DPSS filed a petition under section 300 as to D.M. As subsequently amended, the petition alleged that Mother engages in domestic violence in D.M.’s presence, that both parents have a history of substance abuse, that father fails to provide for D.M., that father has a criminal history including discharge of a firearm, robbery, and gang activity, and that Mother has pending criminal charges including battery and driving under the influence. DPSS attached an Indian Child Inquiry form (ICWA-010(A)) to the original petition, indicating that DPSS asked the parents, maternal grandmother, and paternal grandfather whether D.M. may be an Indian child. DPSS reported that as a result of its inquiry, it had no reason to believe that D.M. was an Indian child.

The juvenile court initially detained D.M. from father but released her to Mother. The court found that DPSS had conducted a sufficient ICWA inquiry and that ICWA did not apply. The court ordered Mother to file a Parental Notification of Indian Status form (ICWA-020), which she did. Mother denied that she had any Indian ancestry. When asked by the social worker later that month, both Mother and father denied Indian ancestry.

In March 2021, the juvenile court found that father was D.M.’s presumed father.

Father filed an ICWA-020, indicating that he was unaware of any Indian ancestry.

Later that month, Mother was arrested for battery and driving under the influence. DPSS obtained a protective custody warrant, took D.M. into protective custody, and asked the court to detain D.M. from Mother. The court then detained D.M. from Mother and again found that ICWA did not apply.

At the contested jurisdiction and disposition hearing in May 2021, the court sustained the amended petition, removed D.M. from the custody of both parents, and ordered reunification services for both parents. The court also found that DPSS had conducted a sufficient inquiry and that ICWA did not apply.

At the six-month and 12-month review hearings, the court continued reunification services for both parents. Mother continued to deny Indian ancestry, and the court found that DPSS had made a sufficient ICWA inquiry, that ICWA did not apply to D.M., and that there was no new information to the contrary.

At the contested 18-month review hearing in September 2022, the court terminated reunification services for both parents and set a selection and implementation hearing under section 366.26. Father was incarcerated for much of the reunification period and made little progress in services. Mother participated in some services but frequently missed drug tests, tested positive in April 2022, and refused to test thereafter.

In the report for the section 366.26 hearing, father again denied having any Indian ancestry. When the selection and implementation hearing was conducted in October 2023, the court again found that ICWA did not apply, and the court tertninated parental rights.

DISCUSSION

Mother argues that the juvenile court erred by not requiring DPSS to conduct an adequate initial inquiry to determine whether D.M. is an Indian child within the meaning of ICWA, because DPSS did not ask various extended family members whether they had any Indian ancestry. In response, DPSS argues that no such inquiry of extended family members was required, because the statutory provision on which Mother relies does not apply. We agree with DPSS.

[1] By statute, the county welfare department 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.’ " (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." (Id. at p. 678, 298 Cal.Rptr.3d 602.) 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).)

[2] "The duty of initial inquiry applies in every dependency proceeding." (Ricky R., supra, 82 Cal.App.5th at p. 678, 298 Cal.Rptr.3d 602.) The department’s "duty to inquire 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).) In addition, "[f]ederal regulations require state courts to ask each participant ‘at the commencement’ of a child custody proceeding ‘whether the participant knows or has reason to know that the child is an Indian child.’ (25 C.F.R. § 23.107(a) (2022).)" (Ricky R., at pp. 678-679, 298 Cal.Rptr.3d 602.) Similarly, "[s]tate law requires the court to pursue an inquiry ‘[a]t the first appearance in court of each party’ by asking ‘each participant present in the hearing whether the participant knows or has reason to know that the child is an Indian child.’ (§ 224.2, subd. (c).)" (Id. at p. 679, 298 Cal.Rptr.3d 602.)

In addition, section 224.2(b) provides that "[i]f a child is placed into the temporary custody of a county welfare department pursuant to Section 306 or county probation department pursuant to Section 307," then the department’s initial inquiry duty includes asking "extended family members" about the child’s Indian status. Mother argues that DPSS violated section 224.2(b) by failing to ask various extended family members about Indian ancestry. DPSS responds that the section 224.2(b) duty was not triggered in this case, because D.M. was removed pursuant to a protective custody warrant.

[3] There is a conflict in the case law on the application of section 224.2(b), and the California Supreme Court has granted review to resolve it. Pending guidance from our high court, we continue to agree with Robert F., supra, 90 Cal.App.5th 492, 307 Cal.Rptr.3d 228, and Ja.O., supra, 91 Cal.App.5th 672, 308 Cal.Rptr.3d 596, that the expanded duty of initial inquiry under section 224.2(b) applies only if the child was placed into temporally custody without a warrant. And for the reasons explained in Andres R., supra, 94 Cal.App.5th 828, 312 Cal.Rptr.3d 629, we are not persuaded by the criticisms of Robert F. that were expressed in Delila D., supra, 93 Cal. App.5th 953, 311 Cal.Rptr.3d 459.

Since Andres R. was published in August 2023, five published opinions have agreed with ...