In re J.C. CA4/2

Filed 5/16/23 In re J.C. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 J.C. et al., Persons Coming Under
the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES, E080340
Plaintiff and Respondent, (Super.Ct.No. RIJ1700505)
v. OPINION
J.C.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Kelly L. Hansen, Judge.
Conditionally reversed and remanded with directions.
Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and
Appellant.
Minh C. Tran, County Counsel, Julie K. Jarvi, Deputy County Counsel, for
Plaintiff and Respondent.
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J.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
I. Detention, Jurisdiction and Disposition, and Termination of Parental Rights
Mother has seven children. J.I.C., J.L.C., and J.M.C. are the subjects of this
appeal. In November 2021, DPSS received a referral alleging physical abuse of the
oldest sibling, 15-year-old Ja.C. Ja.C. was at the hospital, where a forensic medical exam
revealed significant injuries reportedly caused by Mother. The child had six to seven
fractured ribs, fractures on his sternum, and fresh wounds on his back and arms inflicted
by a vacuum cord.
A law enforcement officer at the hospital advised the social worker that he would
be arresting Mother. The social worker accompanied the officer to Mother’s home,
where the officer arrested Mother for physical abuse of Ja.C. Mother could not identify
any temporary caregivers for the children, and the social worker took temporary custody
of all seven of them.
DPSS filed a petition alleging that the children fell within subdivisions (a), (b),
(g), and (j) of Welfare and Institutions Code section 300. (Unlabeled statutory citations
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refer to this code.) A few days later, the court detained the children from Mother. At the
time, J.I.C. was three years old, J.L.C. was 10 years old, and J.M.C. was 13 years old.
DPSS’s investigation revealed that Mother had physically abused all seven
children, although Ja.C. suffered the most severe physical abuse. In April 2022, the court
found the allegations of the fourth amended petition to be true and took jurisdiction over
the children. The court found that DPSS had conducted a sufficient ICWA inquiry and
that ICWA did not apply.
With respect to two of the seven children, the court granted their father sole legal
and physical custody and terminated jurisdiction over them. The court adjudged the
remaining five children dependents of the court, removed them from the custody of
Mother and their respective fathers, and denied the parents reunification services. The
court denied reunification services for the fathers of J.L.C. and J.M.C. because the
fathers’ whereabouts were unknown. (§ 361.5, subd. (b)(1).) J.I.C.’s father had appeared
in the case, but the court denied him reunification services for other reasons. (See
§ 361.5, subds. (b)(10), (e)(1).)
The section 366.26 hearing as to J.I.C., J.L.C., and J.M.C. occurred in December
2022.1 The court found that the three children were likely to be adopted and terminated
1 The court did not hold a section 366.26 hearing with respect to Ja.C. and the other
remaining member of the sibling group. Ja.C. had been found gravely disabled by a
mental health disorder, and a conservatorship had been ordered under the Lanterman-
Petris-Short Act (§ 5000 et seq.). He was receiving treatment at a residential psychiatric
facility. The other sibling had been detained several times for evaluation and treatment
under section 5150, and the child was placed in a short-term residential therapeutic
program.
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parental rights. Although the court did not make an express ICWA finding, the order
terminating parental rights “was ‘necessarily premised on a current finding by the
juvenile court’” that ICWA did not apply to the children. (In re Benjamin M. (2021) 70
Cal.App.5th 735, 740 (Benjamin M.).)
II. ICWA-Related Background
The record does not contain ICWA-020 forms (Parental Notification of Indian
Status) for the parents.2 According to the detention report, the children were the subject
of a dependency case in 2017 and 2018. The juvenile court found in that prior case (in
August 2018) that ICWA did not apply to the children. The detention report contained no
indication that the social worker asked Mother about the children’s Indian status in this
case. DPSS could not locate the fathers of J.I.C., J.L.C., and J.M.C., so the social worker
did not ask them about the children’s Indian status either. The ICWA-010(A) forms
(Indian Child Inquiry Attachment) attached to the petition appeared to rely on the ICWA
inquiry conducted in the prior case. The forms indicated that the social worker was
“advised by [the] Prior Dependency Court Case” that Mother had been questioned about
the children’s Indian status. On the basis of that earlier inquiry, the social worker
checked the box indicating that she had reason to believe the children are or may be
Indian children. The ICWA-010(A) forms identified the Cherokee Nation as the relevant
tribe.
2 “[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.” (Benjamin M., supra, 70 Cal.App.5th at p. 739, fn. 1.)
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The jurisdiction/disposition report contained additional information about the
ICWA findings in the prior dependency case: The juvenile court found in June 2018 that
J.I.C. may be an Indian child, but the court concluded that ICWA did not apply because
the child was placed in Mother’s home. The social worker also reported that in the
present case she recently tried to ask Mother about the children’s Indian status and could
not; Mother was jailed and unavailable for visitation. DPSS had found J.I.C.’s father,
who was incarcerated, and the social worker mailed him a letter asking him to contact her
to discuss the proceedings. Shortly before the jurisdiction and disposition hearing, the
social worker mailed him another letter. She reportedly received no response.
Mother was present at the detention hearing and several other hearings, and the
court did not ask her about the Indian status of the children. J.I.C.’s father was present by
phone for several hearings, and the court did not ask him about the child’s Indian status
either. DPSS had contact with J.I.C.’s paternal grandmother and paternal uncle about
placement, but there is no indication that the agency asked those relatives about the
child’s Indian status. DPSS also had contact with several maternal family members about
placement, including maternal aunt, two maternal great aunts, maternal uncle, and two
people identified merely as maternal relatives. The record contains no indication that
DPSS asked those relatives about the children’s Indian status.
DISCUSSION
Mother argues that DPSS and the juvenile court failed to comply with their duty of
initial inquiry under ICWA-related state law. DPSS acknowledges that its initial ICWA
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inquiry was “incomplete” and does not oppose a conditional reversal and remand.
Mother also argues that DPSS failed to comply with its duty of further inquiry as to J.I.C.
We agree with Mother on both issues.
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,
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).)” (Ricky R., at p. 679.)
In some cases, California law requires DPSS to do more as part of its initial
inquiry. (In re Robert F. (2023) 90 Cal.App.5th 492, 500 (Robert F.).) Specifically,
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under 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,” DPSS must ask ‘“extended
family members”’ about the child’s Indian status. “Extended family members include
adults who are the child’s stepparents, grandparents, siblings, brothers- or sisters-in-law,
aunts, uncles, nieces, nephews, and first or second cousins. (25 U.S.C. § 1903(2); §
224.1, subd. (c).)” (Ricky R., supra, 82 Cal.App.5th at p. 679.)
“‘[R]eason to believe that an Indian child is involved’ triggers the duty of further
inquiry. (§ 224.2, subd. (e), 1st par.) ‘[R]eason to believe’ exists whenever the court or
DPSS has ‘information suggesting that either the parent of the child or the child is a
member or may be eligible for membership in an Indian tribe.’ (§ 224.2, subd. (e)(1).)
The required further inquiry includes interviewing the parents and extended family
members to gather the information necessary for an ICWA notice, contacting the Bureau
of Indian Affairs and State Department of Social Services to gather the names and contact
information of the pertinent tribes, contacting the tribes, and contacting any other person
who may reasonably be expected to have information regarding the child’s membership
status or eligibility. (§ 224.2, subd. (e)(2)(A)-(C).)” (Ricky R., supra, 82 Cal.App.5th at
p. 679.)
When DPSS or the court fails to comply with its duty of inquiry under state law,
we will find the error to be prejudicial and conditionally reverse 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.)
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The court and DPSS failed to comply with their duty of initial inquiry here. The
court did not ask Mother or J.I.C.’s father about the children’s Indian status when they
appeared in court. DPSS never asked the parents about the issue. The agency also failed
to ask extended family members about the children’s Indian status, despite having contact
with numerous relatives about placement. The agency triggered that requirement to ask
extended family members as part of the initial inquiry when it took the children into
temporary custody without a warrant under section 306. (§§ 224.2, subd. (b), 306, subd.
(a)(1), (2); Robert F., supra, 90 Cal.App.5th at pp. 500-501.)
Moreover, DPSS failed to discharge its duty of further inquiry with respect to
J.I.C. The agency had reason to believe that J.I.C. is an Indian child—the court in the
prior dependency case found that the child may be an Indian child. But DPSS failed to
interview the parents and extended family members to gather biographical information
and did not informally contact the relevant tribe, whether that was the Cherokee Nation
or some other tribe.
All of those ICWA errors were prejudicial. DPSS had contact information for
Mother, J.I.C.’s father, J.I.C.’s paternal extended family members, and maternal extended
family members. Those individuals thus were readily available, and their responses
would shed meaningful light on whether the children are Indian children, whatever the
outcome of the inquiry may be. (Ricky R., supra, 82 Cal.App.5th at p. 680.) Likewise,
the further inquiry of the parents, extended family members, and the relevant tribe would
shed meaningful light on whether J.I.C. is an Indian child.
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The court and DPSS could not merely rely on the 2018 findings in the prior
dependency case, nor can we rely on those findings to conclude that the errors are
harmless here. The record in the prior case is not before us. We have no evidence
concerning the inquiries made in that case beyond the bare assertion that Mother was
questioned. Mother might have information today that differs from what she had in 2018.
And assuming that DPSS contacted the Cherokee Nation years ago, the tribe might have
changed its eligibility criteria since then. Further, the duty to question extended family
members as part of the initial inquiry did not exist in 2018—that expanded duty of initial
inquiry took effect in 2019. (Stats. 2018, ch. 833, § 5; Robert F., supra, 90 Cal.App.5th
at p. 502.) The duty of further inquiry also became effective in 2019. (Stats. 2018, ch.
833, § 5; Robert F., at p. 503.) DPSS consequently had no reason to conduct many of the
inquiries now required. In short, the ICWA-related records in the prior case “are not
fungible evidence.” (In re Robert A. (2007) 147 Cal.App.4th 982, 990.)
For all of these reasons, we must conditionally reverse the order terminating
parental rights and remand for a proper ICWA inquiry.
DISPOSITION
The order terminating parental rights to J.I.C., J.L.C., and J.M.C. is conditionally
reversed. On remand, the juvenile court shall comply with the duty of initial inquiry and
order DPSS to comply with its duty of initial inquiry. (§ 224.2, subds. (b), (c).) The
court shall also order DPSS to comply with the duty of further inquiry (§ 224.2, subd. (e))
as to J.I.C. and, if applicable, the other children. Further, the court shall order DPSS to
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comply with the duty to provide notice to the pertinent tribes, if applicable. (25 U.S.C.
§ 1912(a); § 224.3) 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:
McKINSTER
Acting P. J.
MILLER
J.
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