In re L.A. CA4/2 ( 2023 )

Filed 8/15/23 In re L.A. CA4/2
See 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 L.A., a Person Coming Under the
Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES, E080768
Plaintiff and Respondent, (Super.Ct.No. RIJ2100611)
v. OPINION
A.M.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Mona M. Nemat, Judge.
Conditionally reversed with directions.
Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and
Appellant.
1
Minh C. Tran, County Counsel, and Teresa K.B. Beecham and Prabhath Shettigar,
Deputy County Counsel, for Plaintiff and Respondent.
A.M. (mother) appeals from an order terminating parental rights over her minor
child L.A. She argues the Riverside County Department of Public Social Services
(department) did not conduct a sufficient inquiry into her child’s possible Indian ancestry
under the Indian Child Welfare Act (ICWA).1 The department argues that it had no duty
of initial inquiry under ICWA. We disagree with the department, and therefore
conditionally reverse the termination of parental rights.
BACKGROUND
This dependency concerns mother’s child L.A. (born 2021).
In October 2021 the department filed a petition under Welfare and Institutions
Code2 section 300, subdivisions (a), (b), and (e), alleging, among other things, serious
physical abuse of a child under five. On October 7, 2021, the department sought and
obtained a protective custody warrant under section 340 and placed L.A. in foster care.
Over the course of the dependency, mother and father both consistently denied any
Indian heritage. Father told the department his family support consisted of two paternal
cousins whom he sees as aunts. Paternal grandfather is deceased, and father has no
1 “In addition, because ICWA uses the term ‘Indian,’ we do the same for
consistency, even though we recognize that other terms, such as ‘Native American’ or
‘indigenous,’ are preferred by many.” (In re Benjamin M. (2021) 70 Cal.App.5th 735,
739, fn. 1 (Benjamin M.).)
2 All future statutory references are to the Welfare and Institutions Code unless
otherwise stated.
2
contact with paternal grandmother. The department also identified three additional
relatives—which may have included the previously discussed paternal cousins—for
possible family placement. L.A. was eventually placed with a different paternal cousin
who was not previously identified for possible placement. Mother’s parents were
apparently alive, and mother told the department she had two brothers and a sister.
Despite this, there is no indication the department ever asked anybody other than mother
and father about L.A.’s potential Indian heritage.
In April 2022, the juvenile court found the allegations in the first amended petition
true, denied parents reunification services under section 361.5, subdivisions (b)(5)-(6),
and set a section 366.26 hearing. At the section 366.26 hearing in February 2023, the
court terminated both parents’ parental rights. Mother appealed.
ANALYSIS
Mother argues the department failed to complete the initial inquiry required by
ICWA, because it did not ask extended family members about possible Indian ancestry.
The department argues it was not required to conduct an initial inquiry as to extended
family members because the children were initially taken into custody under a
section 340 protective custody warrant. (§ 224.2, subd. (b).) We agree with Mother and
conditionally reverse.
A. Legal Background
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
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petition may be an Indian child. (§ 224.2, subd. (a); see In re D.F. (2020) 55 Cal.App.5th
558, 566 (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.)
The department always has an initial duty to inquire into whether a child is an
Indian child. (§ 224.2, subd. (b); In re J.S. (2021) 62 Cal.App.5th 678, 686.) “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.’ ” (In re Robert F. (2023) 90 Cal.App.5th 492,
499, review granted July 26, 2023, S279743 (Robert F.); see § 224, subd. (a); Cal. Rules
of Court, rule 5.481(a).) “[U]nder subdivision (b) of section 224.2, ‘[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.” 3 (Robert F. at p. 500.) Extended family members include adults who are
the child’s stepparents, grandparents, aunts, uncles, brothers, sisters, nieces, nephews, and
first or second cousins. (25 U.S.C. § 1903(2); § 224.1, subd. (c).)
Nevertheless, the department contends it had no duty to ask extended family
members about Indian status, relying on recent cases limiting the department’s duty to
conduct an initial inquiry. Specifically, the department cites the concurring opinion in In
3 Section 224.2, subdivision (b), also applies when a child is placed in the
temporary custody of a county probation department pursuant to section 307. But then it
is the county probation department’s duty of inquiry, and not the county welfare
department’s. (See § 224.2, subd. (b).)
4
re Adrian L. (2022) 86 Cal.App.5th 342, 357-358 (Adrian L.), Robert F., supra, 90
Cal.App.5th 492, and In re Ja.O. (2023) 91 Cal.App.5th 672, review granted July 26,
2023, S280572. Each of these cases limited the phrase “ ‘placed into the temporary
custody of a county welfare department pursuant to Section 306’ ” (Robert F. at p. 500)
to the department’s exercise of its authority under section 306, subdivision (a)(2), “to
take children into temporary custody ‘without a warrant’ in certain circumstances.”
(Robert F., at p. 497; see Adrian L. at pp. 357-358 (conc. opn. of Kelley, J.).) According
to this line of authority, “[a] department that takes a child into protective custody
pursuant to a warrant does so under section 340, not section 306,” and therefore the
department does not have a duty of initial inquiry when a child is taken into custody
under a protective warrant. (Robert F., at p. 497.)
We disagree with these cases and agree instead with the holding of In re Delila D.
that “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.” (In
re Delila D. (July 21, 2023, E080389) __ Cal.App.5th __ [2023 Cal.App. LEXIS 554 at
p. *3] (Delila D.).) As Delila D. concluded, the scope of that inquiry does not turn on
how a child is taken into custody. Section 340, subdivision (c), requires a child that is
taken into protective custody by law enforcement to be delivered by a social worker.
“When a child is removed by warrant, the taking is authorized by section 340, and the
holding or maintaining in custody is authorized by section 306, subdivision (a)(1).”
(Delila D., at p. __ [2023 Cal.App. Lexis 554 at p. *20].) Meanwhile “[w]hen a child is
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removed without a warrant, the taking is authorized by section 306, subdivision (a)(2)
(for social workers) and by either section 305 or 305.6 (for police officers). If a social
worker takes a child without a warrant, section 306, subdivision (a)(2) authorizes the
social worker to ‘maintain’ custody of the child,” and “if a police officer takes a child
without a warrant, section 306, subdivision (a)(1) authorizes the social worker to
‘[r]eceive and maintain’ the child upon delivery by the officer, pending the detention
hearing.” (Delila D., at p. __ [2023 Cal.App. Lexis 554 at p. *21.) As to any of these
ways that a child is taken into custody, the child must be delivered to the department (if
not back to a parent) and section 306 then authorizes the department to maintain custody.
In other words, “[r]egardless of whether a child is taken into custody by law enforcement
and then delivered to the department, or is taken by the department directly, it is the
maintaining in custody that triggers the need for a detention hearing.” (Delila D., at p. __
[2023 Cal.App. Lexis 554 at pp. *21-22.) Thus, “[t]here is no practical difference
between children taken by warrant and those taken without a warrant, and so there is no
reason to distinguish between them for ICWA inquiry purposes.” (Id. at p. __ [2023
Cal.App. Lexis 554 at p. *23].)
Accordingly, we conclude, as Delila D. did, “that section 224.2(b)’s reference to
temporary custody ‘pursuant to [s]ection 306’ is better read as including children who,
though initially removed by protective custody warrant, are then delivered or placed into
the department’s custody pending a detention hearing.” (Delila D., supra, __
Cal.App.5th at p. __ [2023 Cal.App. Lexis 554 at p. *23].) This includes the children
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here. This conclusion—unlike the department’s— is consistent with California Rules of
Court rule 5.481(a)(1), which requires any party seeking termination of parental rights to
inquire of extended family members about the child’s Indian heritage.
Having concluded the department had a duty of initial inquiry that includes asking
extended relatives about Indian status, our next question is whether it satisfied that duty.
It did not.
There is no question the department failed to ask certain identified and reasonably
available extended family members about the children’s potential Indian heritage.
Indeed, the department apparently failed to ask any family members other than mother
and father about potential Indian heritage despite being in actual contact with multiple
extended family members and knowing of several more. For instance, the department did
not ask the paternal cousins father referred to as aunts, any of the three paternal family
members contacted about possible relative placements, the paternal cousin with whom
L.A. was eventually placed, mother’s parents, mother’s brothers, or mother’s sister.
Moreover, the failure to inquire of these extended family members was
prejudicial. In this context, there is prejudice if “the record indicates that there was
readily obtainable information that was likely to bear meaningfully upon whether the
child is an Indian child.” (Benjamin M., supra, 70 Cal.App.5th at p. 744.) Here, at least
some of the identified but unasked family members—the maternal grandparents and
paternal cousins—were apparently readily available to the department, as they were
contacted by the department on other matters and could have “shed meaningful light on
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whether there is reason to believe” the children were Indian children. (Ibid.) The
department, at least, has not articulated any reason why that might not be the case. (Cf.
Id. at p. 745 [where parents were never married, mother had no “necessary logical reason
to know” about father’s potential Indian heritage].) The department was obligated at
least to try to contact identified extended family members and ask them about possible
Indian heritage, or else explain why it was not reasonably practical to do so.
Accordingly, we conditionally reverse to permit the department to conduct a
sufficient inquiry under ICWA.
DISPOSITION
The order terminating mother’s parental rights is conditionally reversed, and the
court’s finding that ICWA does not apply is vacated. The matter is remanded to the
juvenile court with directions to comply with the inquiry provisions of ICWA and of
sections 224.2 and 224.3—and, if applicable, the notice provisions as well—consistent
with this opinion. If, after completing the initial inquiry, neither the department nor the
court has reason to know that the child is an Indian child, the order terminating parental
rights shall be reinstated. If the department has reason to know the child is an Indian
child, the court shall proceed accordingly.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J.
I concur:
McKINSTER
Acting P. J.
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[In re L.A., E080768]
MILLER, J., Dissenting
I respectfully dissent to the majority opinion finding that remand is necessary in
order for the Riverside County Department of Social Services (Department) to conduct
further inquiry of L.A. (Minor)’s relatives as to whether she is an Indian child pursuant to
the guidelines of Welfare and Institutions Code1 section 224.2, subdivision (b). I follow
the reasoning in this court’s previous opinions of In re Robert F. (2023) 90 Cal.App.5th
492 (Robert F.), review granted July 26, 2023, S279743, and In re Ja.O. (2023) 91
Cal.App.5th 672 (Ja.O.), review granted July 26, 2023, S280572.2 Since Minor was
taken into custody pursuant to a protective warrant under the plain language of section
340, the additional inquiry requirements of section 224, subdivision (b), do not apply. I
would affirm the judgment.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 Pursuant to the California Supreme Court’s order issued on July 26, 2023, for
Ja.O., “Pending review, the opinion of the Court of Appeal, which is currently published
at 91 Cal.App.5th 672, 308 Cal.Rptr.3d 596, may be cited, not only for its persuasive
value, but also for the limited purpose of establishing the existence of a conflict in
authority that would in turn allow trial courts to exercise discretion under Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456, . . ., to choose between sides of
any such conflict. (See Standing Order Exercising Authority Under California Rules of
Court, Rule 8.1115(e)(3), Upon Grant of Review or Transfer of a Matter with an
Underlying Published Court of Appeal Opinion, Administrative Order 2021-04-21; Cal.
Rules of Court, rule 8.1115(e)(3) and corresponding Comment, par. 2.) The California
Supreme Court granted review in Robert F. pending the outcome of Ja.O. and similarly
may be cited pursuant to California Rules of Court, rule 8.1115(e)(3).
1
A protective custody removal warrant under section 340 was obtained by the
Department for Minor on October 7, 2021, and Minor was detained by the Department on
the same day.
“There is no federal duty to inquire of extended family members.” (In re A.C.
(2021) 65 Cal.App.5th 1060, 1069.) The duty of inquiry under state law comes from
section 224.2, subdivision (b). Subdivision (b) of section 224.2 provides, “If 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, the county welfare
department or county probation department has a duty to inquire whether that child is an
Indian child. 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.” The
plain language of section 224.2, subdivision (b), provides that if a child is placed into the
temporary custody of a county welfare department pursuant to section 306, there is a duty
to inquire of extended relatives about Indian ancestry.
Section 306 provides, “(a) Any social worker in a county welfare department, or in
an Indian tribe that has entered into an agreement pursuant to Section 10553.1 while
acting within the scope of his or her regular duties under the direction of the juvenile
court and pursuant to subdivision (b) of Section 272, may do all of the following: [¶]
(1) Receive and maintain, pending investigation, temporary custody of a child who is
described in Section 300, and who has been delivered by a peace officer. [¶] (2) Take
2
into and maintain temporary custody of, without a warrant, a child who has been declared
a dependent child of the juvenile court under Section 300 or who the social worker has
reasonable cause to believe is a person described in subdivision (b) or (g) of Section 300,
and 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. [¶]
(b) Upon receiving temporary custody of a child, the county welfare department shall
inquire pursuant to Section 224.2, whether the child is an Indian child.”
Section 340, subdivision (a), provides, “Whenever a petition has been filed in the
juvenile court alleging that a minor comes within Section 300 and praying for a hearing
on that petition, or whenever any subsequent petition has been filed praying for a hearing
in the matter of the minor and it appears to the court that the circumstances of his or her
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, a protective
custody warrant may be issued immediately for the minor.”
“ ‘Under settled canons of statutory construction, in construing a statute we
ascertain the Legislature’s intent in order to effectuate the law’s purpose. [Citation.] We
must look to the statute’s words and give them their usual and ordinary meaning.
[Citation.] The statute’s plain meaning controls the court’s interpretation unless its words
are ambiguous.’ ” (People v. Arias (2008) 45 Cal.4th 169, 177.) “ ‘ “[I]f the statutory
language is not ambiguous, then we presume the Legislature meant what it said, and the
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plain meaning of the language governs.” ’ ” (Melissa R. v. Superior Court (2012) 207
Cal.App.4th 816, 822.)
In Robert F., this court found that the plain language of section 224.2, subdivision
(b), controls and it only requires that the Department make an inquiry of extended
relatives if the child “is placed into the temporary custody of a county welfare department
pursuant to Section 306.” (Robert F., supra, 90 Cal.App.5th at p. 500.)
This court, in Robert F., followed the concurring opinion in In re Adrian L. (2022)
86 Cal.App.5th 342 (Adrian L.), a case involving a child being placed into protective
custody pursuant to section 340, subdivision (b). In his concurring opinion, Justice
Kelley3, after extensive examination of the legislative history of section 224.2,
subdivision (b), and the plain language of the statute (Adrian L., at pp. 358-366),
concluded that “[p]lacing a child into ‘temporary custody of a county welfare department
pursuant to [section] 306’ is fundamentally different from taking a child into ‘protective
custody’ under section 340.” (Id. at p. 357.) “[A] removal under section 306 is
considered an ‘emergency removal’ under ICWA, but a removal pursuant to an order
issued under section 340 is not. This distinction illuminates why the legislative choice to
limit the scope of section 224.2, subdivision (b), to situations where a child is placed in
temporary custody of a county welfare agency pursuant to section 306 aligns it with
federal ICWA guidance.” As such, the requirement of section 224.2, subdivision (b) did
3 Judge Michael Kelley was sitting on assignment at the Second District Court of
Appeal when wrote his concurring opinion in In re Adrian L. Therefore, respectfully, I
use the title that is correct for his position at the time.
4
not apply to the case in which the child was removed under section 340 based on the
plain language of the statute. (Adrian L., at p. 357.) The Robert F. court adopted this
reasoning finding that the language of the statue was plain and controlled the
interpretation of section 224.2, subdivision (b). (Robert F., supra, 90 Cal.App.5th at p.
500.)
Based on the plain language in section 224.2, subdivision (b), it is applicable only
to situations where “a child is placed into the temporary custody of a county welfare
department pursuant to [s]ection 306.” Here, Delila was placed into the Department’s
custody pursuant to court order under section 340, subdivision (a), not through the
warrantless removal procedure provided by section 306. Accordingly, the Department
was not required to conduct inquiries with “extended family members” at this initial
inquiry stage pursuant to section 224.2, subdivision (b).
The majority states that it cannot follow Robert F.’s reasoning because it disagrees
that section 306 is limited to circumstances where the child is removed without a warrant.
Instead, the majority follows the recent case of In re Delila D. (2023) 93 Cal.App.5th
953, which held “[s]ection 306 authorizes a department to maintain a child in temporary
custody both when the child has been taken from home by a social worker or police
officer under exigent circumstances without a warrant (§ 306, subs. (a)(1) & (2) and
when the child has been taken from home by means of a protective custody warrant
issued under section 340 (§ 306, subd. (a)(1)).” It concluded, “There is no practical
difference between children taken by warrant and those taken without a warrant, and so
there is no reason to distinguish between them for ICWA inquiry purposes.” (Ibid.)
5
A similar argument was rejected in Ja.O, another opinion authored by this court.
In Ja.O., the mother argued that since section 306, subdivision (a)(1), authorizes a social
worker to take a child who has been delivered by a peace officer into temporary custody,
“it follows that whenever a peace officer takes a child into protective custody pursuant to
a warrant and then delivers the child to a social worker, the child is thereby taken into
temporary custody pursuant to section 306.” (Ja.O., supra, 91 Cal.App.5th at p. 680.)
This court rejected that argument finding that, “Subdivisions (a) and (b) of section 340
provide for the issuance of protective custody warrants. Subdivision (c) of section 340
requires that ‘[a]ny child taken into protective custody pursuant to this section shall
immediately be delivered to the social worker,’ who must then conduct an investigation
‘pursuant to [s]ection 309.’ Thus, when a peace officer takes a child into protective
custody pursuant to a warrant and then complies with the statutory obligation to deliver
the child to the social worker, the social worker is taking custody of the child pursuant to
section 340, subdivision (c). [¶] But subdivision (a)(1) of section 306 has no application
when children are detained pursuant to a warrant under section 340, subdivision (b).
Section 306 expressly involves ‘temporary custody,’ which Article 7 defines, not
‘protective custody’ under section 340. Subdivision (a)(1) of section 306 thus applies to
situations in which an officer detains a child pursuant to one of the sections in Article 7
and the officer then delivers the child to the social worker. [¶] Moreover, if Mother’s
interpretation of sections 306 and 340 were correct, then most of subdivision (c) of
section 340 would be surplusage.” (Ja.O., supra, 91 Cal.App.5th at p. 680.) The
majority is incorrect that all children are taken into temporary custody under section 306.
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I see no reason to depart from the reasoning of our previous cases of Robert F. and
Ja.O.. Here, Mother and Father denied any Indian ancestry and there was no duty on
behalf of the Department to make further inquiry of extended family members as there is
no indication that ICWA may apply. I would uphold the judgment.
MILLER
J.
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