In re G.M. CA4/2 ( 2024 )

Filed 5/28/24 In re G.M. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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 G.M. et al., Persons Coming Under
the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES, E082957
Plaintiff and Respondent, (Super.Ct.No. RIJ2100669)
v. OPINION
ANGELA C.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Mona M. Nemat, Judge.
Conditionally reversed and remanded with directions.
Lelah S. Forrey-Baker, under appointment by the Court of Appeal, for Defendant
and Appellant.
Larisa Reithmeier-McKenna, Deputy County Counsel, Minh Tran, County
Counsel for Plaintiff and Respondent.
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Angela C. (Mother) appeals from the juvenile court’s order terminating parental
rights to three of her children. She argues that the court and the Riverside County
Department of Public Social Services (DPSS) failed to comply with state law
implementing the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.).
We conditionally reverse the order terminating parental rights and remand for further
proceedings.
BACKGROUND
In October 2021, DPSS obtained protective custody warrants to remove N.M.-H.,
R.M.-H., and G.M. from their parents’ custody. Two days later, DPSS filed a petition
under Welfare and Institutions Code section 300. (Unlabeled statutory references are to
the Welfare and Institutions Code.) DPSS attached ICWA-010 forms for each of the
three children, indicating that DPSS had inquired of Mother and Father regarding their
ancestry, and the inquiry gave no reason to believe that the children are or may be Indian
children.1
In its detention report, DPSS recommended that the juvenile court detain the
children and find that ICWA did not apply. Mother and Father were present at the
detention hearing in November 2021, along with maternal great-aunt, maternal uncle, and
a maternal cousin. The court stated that both Mother and Father had filed ICWA-020
1 “[B]ecause 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.).)
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forms and that neither parent was aware of any Indian ancestry. The court found that
ICWA did not apply and adopted DPSS’s recommended findings and orders, including
that DPSS had conducted a sufficient inquiry regarding whether the children may have
Indian ancestry. The court detained the children as recommended. The court did not ask
maternal great-aunt, maternal uncle, or maternal cousin whether they knew if the children
were Indian children.
At the contested jurisdiction and disposition hearing, the court sustained the
petition in part, adjudged the children dependents of the court, and found that ICWA did
not apply. The court removed the children from parental custody and ordered
reunification services for both parents.
At the contested six-month review hearing in June 2022, the court continued the
parents’ reunification services for another six months. The court again found that ICWA
did not apply.
At the contested 12-month review hearing in December 2022, the court terminated
reunification services for both parents and set a selection and implementation hearing
under section 366.26. The court again found that ICWA did not apply.
At the selection and implementation hearing, the court terminated parental rights.
DISCUSSION
Mother argues that DPSS and the juvenile court failed to comply with their duties
of initial inquiry pursuant to subdivisions (a), (b), and (c) of section 224.2. DPSS
concedes that there were omissions in the initial inquiry and does not oppose a
conditional reversal and remand for compliance with ICWA and related California law.
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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.’” (In re Ricky
R. (2022) 82 Cal.App.5th 671, 678 (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.” (Ibid.)
“The duty of initial inquiry applies in every dependency proceeding.” (Ricky R.,
supra, 82 Cal.App.5th at p. 678.) DPSS’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.) 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.)
We agree with the parties that the juvenile court failed to comply with its duty of
initial inquiry. A maternal great-aunt, maternal uncle, and maternal cousin were present
for the parents’ first appearance in court, which was at the detention hearing in November
2021, but the court did not ask any of those relatives about Indian ancestry. Because
those individuals were readily available and their responses would shed meaningful light
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on whether the children were Indian children, the error was prejudicial. (Benjamin M.,
supra, 70 Cal.App.5th at p. 744.)
We therefore conditionally reverse the order terminating parental rights and
remand for a proper ICWA inquiry.
DISPOSITION
The order terminating parental rights to N.M.-H., R.M.-H., and G.M. is
conditionally reversed. On remand, the juvenile court shall comply with its duty of initial
inquiry and order DPSS to comply with its duty of initial inquiry. (§ 224.2, subds. (a)-
(c).) The court shall also order DPSS to comply with its duties of further inquiry and
notice, if applicable. (25 U.S.C. § 1912(a); §§ 224.3, 224.2, subd. (e).) Once the court
finds that all inquiry and notice duties have been discharged, if the court determines that
ICWA does not apply, then the court shall reinstate the order terminating parental rights.
If the court determines that ICWA applies, then it shall proceed in conformity with
ICWA and related California law.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J.
We concur:
RAMIREZ
P. J.
FIELDS
J.
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