In re T.V. CA4/2 ( 2024 )

Filed 9/26/24 In re T.V. CA4/2
Opinion after vacating prior opinion
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 T.V., a Person Coming Under the
Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E083415
Plaintiff and Respondent, (Super.Ct.No. J294939)
v. OPINION
T.B.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes,
Judge. Affirmed.
Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant
and Appellant.
Tom Bunton, County Counsel, and Joseph R. Barrell, Deputy County Counsel, for
Plaintiff and Respondent.
1
Defendant and appellant T.B. (Mother) appeals after the termination of her
parental rights to T.V. (born Oct. 2022; Minor) at a Welfare and Institutions Code section
366.261 hearing. On appeal, Mother contends the matter must be remanded to the
juvenile court based on the lack of substantial evidence that the Indian Child Welfare Act
of 1978 (ICWA) did not apply. She claims that plaintiff and respondent San Bernardino
County Children and Family Services (the Department) did not adequately perform its
initial duty of inquiry about Indian ancestry pursuant to section 224.2, subdivision (b), as
to relatives of the father of Minor, J.V. (Father)2 to determine whether Minor was an
Indian child.
FACTUAL AND PROCEDURAL HISTORY
A. DETENTION
In October 2022 Mother gave birth to Minor, at which time both Mother and
Minor tested positive for methamphetamines. Minor had to be placed into the neonatal
intensive care unit based on being premature and low weight. Father was present at the
hospital and was very manipulative. He was wheelchair-bound and had an open wound
on his foot allegedly from a gunshot wound. After giving birth, Mother left the hospital
and could not be located. Mother and Father (collectively, Parents) lived with maternal
grandmother, D.B. (MGM) Mother had a prior history with the Department for her other
children.
1 All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
2 Father is not a party to the instant appeal.
2
A detention warrant was approved by the juvenile court on November 1, 2022.
Minor was detained on November 1, 2022. Minor was placed in a foster family home.
On November 3, 2022, the Department filed a section 300 petition for Minor
against Parents (petition).3 It was alleged pursuant to section 300, subdivision (b), failure
to protect, that Mother had a history of methamphetamine use and was currently using
methamphetamine; she should have known that Father had a problem with substance
abuse, which placed Minor at risk for physical or emotional harm; and she used
methamphetamine throughout her pregnancy and tested positive for amphetamines at the
time of Minor’s birth. It was alleged against Father that he had a history of substance
abuse, and he should have known that Mother had a problem with substance abuse.
Father completed an ICWA-020 form on November 4, 2022, stating that he had no
known Indian ancestry. Mother also completed an ICWA-020 form on November 4,
2022, attesting that she may have Indian ancestry but the tribe was unknown. She
provided the name of Ernest G.B. (MGF) as a potential tribe member. Parents also
provided the name of a maternal uncle (Uncle) and a maternal grandmother on the family
find and ICWA inquiry form. They also listed a paternal grandfather, I.V., as an
additional family contact.
The detention hearing was held on November 4, 2022. Parents were present in
court. Father denied any Indian ancestry when asked by the juvenile court. Mother had
3 Mother had three other children who were placed with their father, N.S.; they
are not part of the appeal.
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been told she had Indian ancestry through MGF. The juvenile court found a prima facie
showing had been made and Minor was ordered detained.
B. JURISDICTION/DISPOSITION REPORT AND HEARING
The jurisdiction/disposition report was filed on November 22, 2022. The
Department sought to have the allegations in the petition found true and have the juvenile
court grant reunification services to Parents. Minor remained in a foster home.
A social worker spoke with MGM who advised the Department that she believed
MGF had Indian ancestry; he was deceased. She did not know what tribe. MGM
believed MGF’s sister, Barbara B., lived on an Indian reservation but had no further
information that she could give to the Department. Father had no known Indian ancestry.
Mother admitted to drug use during her pregnancy and was willing to participate
in services. She insisted that a low birth weight was common for a twin and that she
checked on Minor every day she was in the hospital. Father denied substance abuse and
was willing to participate in services. Parents had missed several drug tests. The hearing
date was continued.
In an addendum report, the Department reported that Minor had been placed with
Uncle on November 29, 2022. Uncle denied any Indian ancestry. A social worker
attempted to contact the Bureau of Indian Affairs (BIA) regarding the family but had not
been successful. There was no contact with Father during the reporting period. Mother
had not been drug testing.
The jurisdiction/disposition hearing was conducted on January 23, 2023. Parents
were not present. The juvenile court found the allegations in the petition true by a
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preponderance of the evidence. The juvenile court name Father the presumed father of
Minor. Parents were granted six months of reunification services. Minor remained
placed with Uncle.
C. SIX-MONTH REVIEW REPORT AND HEARING
A status review report was filed on July 17, 2023. The Department recommended
that Minor remain in the custody of Uncle and that family reunification services be
continued for Parents. No further ICWA information was obtained during the reporting
period. Parents were not consistently participating in services but Mother made some
progress toward the end of the reporting period. Minor was developing normally. Uncle
and his wife were willing to adopt Minor. The matter was continued.
An addendum was filed on August 14, 2023. The Department was now
recommending that reunification services for Parents be terminated. It recommended a
permanent plan of adoption by Uncle. Parents were inconsistent in their visitation.
Mother was not enrolled in a drug treatment program. Father had completed no services.
The Department attempted to contact MGM to conduct further ICWA inquiry but she did
not contact them during the reporting period. A voicemail message was left with the BIA
but there had been no return call.
A second addendum report was filed on September 14, 2023. Mother had been
inconsistent in visitation. Mother had entered a drug treatment program but then
immediately checked herself out of the program. MGM finally contacted the Department
and denied any Indian ancestry. MGF’s sister, Barbara, was associated with a tribe but
MGM had no further information and Barbara was deceased. MGM offered MGF’s full
5
name (Ernest B.) and his date of birth. The Department sent an email to the BIA with
MGF’s name and date of birth but received no response. Another report was submitted
on September 15, 2023. Mother admitted to the Department that two weeks prior she had
used methamphetamine. She had entered a drug treatment program but had checked
herself out.
At the six-month review hearing held on September 18, 2023, Parents were not
present. No evidence was presented. The juvenile court terminated reunification services
and set the matter for a section 366.26 hearing.
D. SECTION 366.26 REPORTS AND HEARING
The Department filed a section 366.26 report on January 9, 2024. The Department
recommended that the juvenile court terminate the parental rights of Parents and that the
permanent plan of adoption with Uncle and his wife be implemented. Minor was
developing normally and was a happy child.
As for ICWA, the Department reported that it did not apply. No response had
been received from the BIA since an email was sent on September 14, 2023; there was no
evidence that maternal relatives were members of any tribe.4 The section 366.26 hearing
was continued. In an addendum report filed on February 28, 2024, the Department
reported that there had been no response from the BIA.
Mother filed a section 388 petition on March 1, 2024, requesting that reunification
services be reinstated. She insisted she had completed parenting and anger management
4 The email sent to the BIA listed MGF’s name only as Ernest B. and not Ernest
G.B. It did list his date of birth. It also included his sister’s name, Barbara B.
6
classes. She had entered a substance abuse treatment program. She had stable housing.
The juvenile court denied the section 388 petition without a hearing.
The section 366.26 hearing was conducted on March 4, 2024. Mother was
present. The juvenile court found that ICWA did not apply. The juvenile court
terminated the parental rights of Mother and Father and freed Minor for adoption.
DISCUSSION
Mother contends remand is necessary based on the failure of the Department to
adequately perform its duty of inquiry pursuant to California law as to Father, specifically
the requirement of section 224.2, subdivision (b), to inquire of Minor’s extended paternal
family about Indian ancestry to determine whether Minor was an Indian child.
A. ICWA AND STATE LAW REQUIREMENTS
“ ‘Notice to Indian tribes is central to effectuating ICWA’s purpose, enabling a
tribe to determine whether the child involved in a dependency proceeding is an Indian
child and, if so, whether to intervene in, or exercise jurisdiction over, the matter.’ ” (In re
S.R. (2021) 64 Cal.App.5th 303, 313.) “ ‘ICWA itself does not impose a duty on courts
or child welfare agencies to inquire as to whether a child in a dependency proceeding is
an Indian child. [Citation.] Federal regulations implementing ICWA, however, require
that state courts “ask each participant in an emergency or voluntary or involuntary child-
custody proceeding whether the participant knows or has reason to know that the child is
an Indian child.” [Citation.] . . . . [¶] . . . ‘ICWA provides that states may provide “a
higher standard of protection to the rights of the parent or Indian custodian of an Indian
child than the rights provided under” ICWA.’ ” (In re J.S. (2021) 62 Cal.App.5th 678,
7
685.) “There is no federal duty to inquire of extended family members.” (In re A.C.
(2021) 65 Cal.App.5th 1060, 1069.)
Under California law, there are specific inquiry requirements. Section 224.2,
subdivision (a) provides, “The court, county welfare department, and the probation
department have an affirmative and continuing duty to inquire whether a child for whom
a petition under Section 300, 601, or 602 may be or has been filed, is or may be an Indian
child. The 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.” 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.”
Subdivision (c) of section 224.2 provides, “At the first appearance in court of each party,
the court shall ask each participant present in the hearing whether the participant knows
or has reason to know that the child is an Indian child. The court shall instruct the parties
to inform the court if they subsequently receive information that provides reason to know
the child is an Indian child.” Mother only claims on appeal that the Department did not
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fulfill their duty to inquire under section 224.2, subdivision (b), by failing to inquire of
Father’s relatives.
B. SECTION 224.2, SUBDIVISION (B), DOES NOT APPLY
The Department contends that section 224.2, subdivision (b), does not apply based
on the facts of this case. We agree that section 224.2, subdivision (b), does not apply.
There is a split of authority in the Courts of Appeal as to whether the plain
language of section 224, subdivision (b), only applies when a child is taken into custody
under section 306, and not when detained under a warrant. Some appellate courts have
found the statutory language means an agency has no initial duty to ask extended family
members about possible Indian ancestry unless the child was taken into temporary
custody under section 306. (See, e.g., In re Andres R. (2023) 94 Cal.App.5th 828, review
granted Nov. 15, 2023, S282054; In re Ja.O. (2023) 91 Cal.App.5th 672, review granted
July 26, 2023, S280572 [lead case]; and In re Robert F. (2023) 90 Cal.App.5th 492,
review granted July 26, 2023, S279743.) Other courts have found the duty of initial
inquiry applies regardless of how the child is removed from the home. (See, e.g., In re
L.B. (2023) 98 Cal.App.5th 512, 517; In re C.L. (2023) 96 Cal.App.5th 377, 386; In re
Delila D. (2023) 93 Cal.App.5th 953, review granted Sept. 27, 2023, S281447.)
The duty of inquiry in section 224.2, subdivision (b), only applies if a child is taken into
temporary custody under section 306. We follow the reasoning in In re Andres R., supra,
94 Cal.App.5th 828,5 and need not repeat the extensive examination of the issue provided
5 Despite the grant of review by the California Supreme Court, we may cite to In
re Andres R. for its persuasive value. (Cal. Rules of Court, rule 8.1115 (e)(1).)
9
in the case. 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, Minor was placed into the Department’s custody pursuant to a detention
warrant, 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).
Mother raised in her opening brief that the inadequate inquiry was as to Father’s
relatives only. Based on the fact that Minor was detained pursuant to a warrant, no
further inquiry of Father’s relatives was required under section 224, subdivision (b).
Father repeatedly denied any Indian ancestry. Remand for further inquiry under ICWA is
not necessary.
DISPOSITION
The order terminating parental rights at the section 366.26 hearing as to Minor is
affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J.
I concur:
CODRINGTON
J.
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[In re T.V.; CFS v. T.B., E083415]
RAMIREZ, J., Dissenting.
As the majority acknowledge, this court is divided on the issue whether the
manner of removal determines the obligation of a child services agency such as the San
Bernardino County Department of Children and Family Services to comply with
subdivision (b) of Welfare and Institutions Code section 224.2 (section 224.2(b)).
In In re Robert F., a panel of this court found the extended inquiry requirement set
forth in section 224.2(b) does not apply if a child is removed pursuant to a protective
custody warrant. (In re Robert F. (2023) 90 Cal.App.5th 492, 500, review granted
July 26, 2023, S279743; in accord, In D.M. (2024) 101 Cal.App.5th 1016, 1023; but see
id. at pp. 1047-1060 (dis. opn. of Raphael, J.), review granted July 24, 2024, S285537
(Fourth Dist., Div. Two); In re Andres R. (2023) 94 Cal.App.5th 828, 849; but see id. at
pp. 860-865 (conc. opn. of Slough, J.), review granted Nov. 15, 2023, S282054 (Fourth
Dist., Div. Two); In re Ja.O. (2023) 91 Cal.App.5th 672, review granted July 26, 2023,
S280572 (Fourth Dist., Div. Two).)
In In re Delila D. the majority of another panel held the manner of removal has no
bearing on the question whether a child may be an Indian child. (In re Delila D. (2023)
93 Cal.App.5th 953, 962, 965-976 (Delila D.); but see id. at pp. 977-981 (dis. opn. of
Miller, J.), review granted Sept. 27, 2023, S281447.) Delila D. emphasized the goal of
the initial inquiry requirement, including the expanded duty of inquiry of extended family
members, is to determine whether state and federal ICWA protections may apply to the
1
proceedings. (Id. at pp. 962, 965-976; accord, In re Samantha F. (2024) 99 Cal.App.5th
1062, 1068-1069; but see id. at pp. 1086-1092 (con. & dis. opn. of Fields, J.) (Fourth
Dist., Div. Two), disapproved on another ground in In re Dezi C. (Aug. 19, 2024,
S275578) ___ Cal.5th ___ [2024 Cal. Lexis 4634]; In re L.B. (2023) 98 Cal.App.5th 512,
516-518 (First Dist., Div. Four); In re C.L. (2023) 96 Cal.App.5th 377, 385-391 (Third
Dist.); In re V.C. (2023) 95 Cal.App.5th 251, 256-260 (First Dist., Div. Two),
disapproved on another ground in In re Dezi C., supra, S275578; In re Jerry R. (2023) 95
Cal.App.5th 388, 411-426 (Fifth Dist.).)
In my view, the analysis set forth in Delila D. and its progeny are persuasive and
should be embraced unless and until either our Supreme Court reaches a different
conclusion or our Legislature passes Assembly Bill No. 81 (2023-2024 Reg. Sess.),
which is intended to clarify its intent that the expanded inquiry provisions in section
224.2(b) apply in all cases, including when a child is placed in temporary custody
pursuant to warrant.
Accordingly, I would conditionally reverse the order terminating parental rights
with instructions to comply with California’s provisions designed to implement and
enhance the federal Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.)
including section 224.2(b) and California Rules of Court, rule 5.481(a)(1).
RAMIREZ
J.
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