In re R.C. CA4/2

Filed 11/29/23 In re R.C. CA4/2
See Concurring and 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 R.C., a Person Coming Under the
Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES, E080692

Plaintiff and Respondent, (Super.Ct.No. RIJ1100280)

v. OPINION

R.B.,

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Kelly L. Hansen, Judge.

Reversed.

Anna Rak, under appointment by the Court of Appeal, for Defendant and

Appellant.

Minh C. Tran, County Counsel, and Teresa K.B. Beecham and Prabhath Shettigar,

Deputy County Counsel, for Plaintiff and Respondent.

1
 Father appeals from a judgment terminating his parental rights to R.C., pursuant to

Welfare and Institutions Code1, section 366.26. The child was born with extreme

medical complications due to heroin withdrawal after being exposed to drugs in utero.

Both mother and father had a history of using heroin and methamphetamine, for which

reason mother had lost custody and failed to reunify with four older half siblings of R.C.

The Riverside County Department of Public Social Services (DPSS or the Department)

filed a dependency petition, and, at jurisdiction, mother was denied services, but services

were offered for father.

Over the reunification period, father was slow to engage in services, which were

terminated at a combined six- and 12-month review hearing where a section 366.26

hearing to select and implement a permanent plan of adoption was set. Father filed a

motion to modify the order terminating services, some of which he completed after

services were terminated, which was heard and denied at the selection and

implementation hearing. Parental rights of both parents were terminated. Father appeals.

On appeal, father argues that (1) the juvenile court erred in denying his

modification petition pursuant to section 388; and (2) the court and DPSS failed to

conduct a proper inquiry into possible Indian ancestry. We conditionally reverse.

BACKGROUND

Because mother is not a party to this appeal, we limit our references to her to those

matters needed for context.

1 All further statutory references are to the Welfare and Institutions Code unless
otherwise stated.

2
 R.C. was born in June 2021 at 32 weeks gestation with serious medical problems

related to being born prematurely with opioid withdrawal. Mother came into the

emergency room seeking treatment, telling staff she did not care about the baby, and that

they needed to save her. Mother was intubated due to breathing issues related to opioid

withdrawal, and was in an induced coma, while R.C. also suffered from respiratory

distress syndrome, as well as severe issues requiring a peripherally inserted central

catheter (PICC) line, a spinal tap, and milk consent (because mother was unable to

consent to treatment). Additionally, the baby was born with a small, poorly functioning

kidney, requiring a catheter, and had jaundice, requiring light therapy.

Mother had a long history of using opioids and methamphetamines and had lost

custody of four2 older children (unrelated to this father) due to her substance abuse. A

fifth child was stillborn. Mother identified two possible fathers, V.R. (her boyfriend) and

R.B. Father R.B. fathered the stillborn infant. R.B. also had a long history of drug abuse,

including methamphetamines and heroin, and earned money by committing theft related

offenses. He also had an extensive criminal record of drug and theft related offenses.

R.B. indicated he had been denied access to visit the infant in the hospital, so he

requested paternity testing in order to visit.

When the child was ready for discharge, DPSS obtained a protective custody

warrant and detained the child. On July 22, 2021, the Department filed a dependency

2 Two of the older four children are in legal guardianships with relatives, while
parental rights were terminated as to the other two, who were freed for adoption after
mother failed to benefit from reunification services for drug use.

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petition alleging the child came within the provisions of section 300, subdivisions (b)(1)

and (g), based on the long history of drug use by mother and father R.B., as well as

mother’s prior child welfare history that had resulted in the loss of custody of her other

children, including the termination of parental rights as to two children, and the unknown

whereabouts of alleged father V.R., who was soon dismissed and stricken from the

petition when DNA testing eliminated him as father.

At the detention hearing, the court ordered the child detained in foster care and

authorized paternity testing for the two alleged fathers. The court denied visitation to

both alleged fathers, finding visits would be detrimental because the men were alleged

fathers only.

The jurisdiction/disposition report was submitted on August 11, 2021,

recommending true findings on all the allegations, removal of R.C. from her parents’

custody, denial of reunification services to mother pursuant to section 361.5, subdivision

(b)(10), and denial of services to the alleged fathers. The report indicated that on June

14, 2021, father R.B. denied any Indian ancestry; on July 1, 2021, mother did likewise.

The report did not include any information from R.B. regarding placement, because the

social worker was unable to interview him. The report recommended denying services to

both alleged fathers because neither had made themselves available for an interview.

On October 29, 2021, in another addendum report filed prior to the jurisdiction

hearing, the social worker recommended reunification services for father R.B., whose

DNA tests established he was the biological father. However, the social worker

recommended that visits between R.B. and his daughter continue to be denied. During

4
the period between the detention and jurisdiction hearings, mother failed to submit drug

tests, participate in drug treatment, or counseling. Mother also failed to visit the baby,

although her cousin, who was seeking relative placement of R.C., did visit. Mother

attributed some of her failures to Covid-19, indicating she was required to test negative

for the virus three times before she could drug test. On October 25, 2021, the Resource

Family Approval (RFA) Unit approved the maternal cousin for placement.

The Department filed an amended petition on November 3, 2021, striking the

alleged father, V.R., and the allegation pursuant to section 300, subdivision (g), from the

petition. On December 2, 2021, the caretakers of the child sought de facto parent status.

On December 8, 2021, in another addendum report, the social worker continued to

recommend reunification services for father but requested that visits with mother be

denied. The report also noted that although the maternal cousin had been approved for

relative placement, the cousin withdrew her request for placement due to changed

circumstances. In the meantime, mother had not shown up for any drug tests and did not

participate in any services.

On January 24, 2022, yet another addendum was filed (more than six months after

the child was detained in the Department’s custody), which for the first time

recommended that father receive supervised visits. By this time, the social worker

contacted paternal relatives, including the paternal grandmother, where father was

supposed to be, learning that father had not been there for two days. The family was well

aware of the drug use by mother and father, who used on the property where the paternal

5
grandmother lived, but indicated father had gotten treatment in the past and did well until

he hooked up with mother and started using drugs again.

Eventually, father contacted the social worker and indicated he had called a

substance abuse program to deal with his habit. Father admitted he used heroin twice a

day and also used methamphetamines and marijuana. However, father had failed to show

up for a drug test when directed, and the results of a recent test had not been received.

On January 27, 2022, the court conducted a combined jurisdiction/disposition

hearing. The court made true findings on all the allegations under section 300,

subdivision (b)(1), and struck the allegation under section 300, subdivision (g). The court

removed custody from the parents, denied services for mother, but granted services for

father. The court found that ICWA did not apply. The court also granted the de facto

parent application.

In the six-month status review report, the Department recommended terminating

services for father, reducing his visits, and setting the matter for a selection and

implementation hearing under section 366.26. The report reflected that ICWA did not

apply based on the finding made at the jurisdictional/dispositional hearing and based on

an inquiry of father made on March 22, 2022, in which he denied any tribal ancestry or

membership. At this time, mother’s whereabouts were unknown, so no further inquiry

could be made of her.

Father had been charged with a new criminal offense during this reporting period,

and a hearing on an alleged violation of probation was pending. He was interested in an

in-patient treatment program, so the social worker sent him referrals. In April 2022, he

6
entered the MFI Recovery Center, but he left after approximately one week. The social

worker sent an additional referral, after which father indicated he had entered Victory

Outreach, but he left after a few weeks. While there, father tested negative for drugs on

one test, but did not show up for a second. Additional referrals were provided, and father

initiated counseling services. Father then started an outpatient drug treatment program.

In the meantime, father had visited the child three times, all of which were

appropriate. Because father had just begun drug treatment and counseling, and because

he had pending criminal charges, the social worker recommended a finding that return to

father would be detrimental and that services be terminated.

The six-month review hearing was continued because mother’s counsel declared a

conflict. Shortly thereafter, father submitted certificates of completion relating to a

relapse prevention program, a substance abuse program, and parenting classes; he also

submitted a sentencing memorandum regarding the criminal charges showing he had

been placed on summary probation.

On August 10, 2022, the Department submitted a combined six-month and 12-

month status review report, containing the same recommendations as had been made in

the prior report. The report also recommended a finding that ICWA does not apply,

although no additional inquiries appear to have been made. The report indicated father

was living with a friend awaiting placement in a sober living program. Father had

obtained full time employment at a warehouse. Father’s substance abuse program was

ongoing, and he was in compliance; however, father had only attended a few counseling

sessions, had missed a therapy session, and had just begun attending a parenting

7
education program. Father submitted a hair follicle test for controlled substances and had

visited with R.C. seven time since his visits were initiated, canceling, or failing to

schedule a visit, on five occasions. On August 22, 2022, the social worker filed an

addendum report to inform the court father’s hair follicle test was negative for all

controlled substances. The report was accompanied by two more certificates showing

father had completed substance abuse and parenting classes.

On August 25, 2022, the court conducted the review hearing; it found ICWA did

not apply, that father had made minimal progress, and that return of the child to father

would be detrimental. The court terminated reunification services and set a selection and

implementation hearing under section 366.26, reducing father’s visits to one time per

month.

On December 12, 2022, the social worker submitted a report for the section 366.26

hearing, recommending termination of parental rights of both parents. The father

maintained monthly visits, missing only one, and the caretakers were committed to

adopting the child and were open to maintaining contact between father and the child.

On January 27, 2023, father filed a section 388 request to modify a prior order (Judicial

Council Forms, form JV-180), seeking to reinstate reunification services. The petition

alleged father completed his outpatient program and was currently enrolled in recovery

services, an optional program to support recovery. In addition, he drug tested weekly and

all tests were negative. Further, he had stable housing. The court set the hearing in

connection with the pending section 366.26 hearing.

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 In response to father’s petition, the Department submitted an addendum report

recommending denial of the petition. The report confirmed father had completed the

substance abuse program and had tested negative but indicated he had completed minimal

counseling sessions and had not shown any benefit from counseling or parenting classes.

The report also acknowledged father had visited regularly but that the child was not

bonded to him: frequently the child refused to go to him at visits, and during visits, she

spent most of her time with the caretakers. The Department recommended that the

modification petition be denied.

On February 8, 2023, the court denied father’s modification petition and

terminated parental rights of both parents, freeing the child for adoption, and designating

the de facto parents as the prospective adoptive parents. On February 14, 2023, father

timely appealed.

DISCUSSION

1. Whether the Court Abused Discretion in Denying Father’s Petition to Modify
the Prior Court Order.

A juvenile court order may be changed, modified, or set aside under section 388 if

the petitioner establishes by a preponderance of the evidence that (1) new evidence or

changed circumstances exist, and (2) the proposed change would promote the best

interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 316-317.) The parent

bears the burden to show both a legitimate change of circumstances and that undoing the

prior order would be in the best interest of the child. (In re Kimberly F. (1997) 56

Cal.App.4th 519, 529 (Kimberly F.).) “Generally, the petitioner must show by a

9
preponderance of the evidence that the child’s welfare requires the modification sought.”

(In re B.D. (2008) 159 Cal.App.4th 1218, 1228.)

In evaluating whether the petitioner has met the burden to show changed

circumstances, the trial court should consider: “(1) the seriousness of the problem which

led to the dependency, and the reason for any continuation of that problem; (2) the

strength of relative bonds between the dependent children to both parent and caretakers;

and (3) the degree to which the problem may be easily removed or ameliorated, and the

degree to which it actually has been.” (Kimberly F., supra, 56 Cal.App.4th at p. 532.)

The juvenile court may also consider the reason the problem was not resolved, the

passage of time since the child’s removal, the relative strength of the bonds with the

child, the nature of the change of circumstance, and the reason the change was not made

sooner. (In re Mickel O. (2011) 197 Cal.App.4th 586, 616; see Kimberly F., supra, at

pp. 530-532.)

“To support a section 388 petition, the change in circumstances must be

substantial.” (In re Ernesto R. (2014) 230 Cal.App.4th 219, 223.) Moreover, once

reunification services are ordered terminated or bypassed, the focus shifts from

reunification to the child’s need for permanency and stability, and a presumption arises

that “continued care [under the dependency system] is in the best interest of the child.”

(In re Marilyn H. (1993) 5 Cal.4th 295, 309-310.) After reunification services are

terminated, inquiry into a child’s best interests includes consideration of his or her need

for permanency and stability. (In re J.C. (2014) 226 Cal.App.4th 503, 526-527.)

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 Further, to establish a prima facie basis for modification, the parent must show

circumstances have changed, not merely that they are in the process of changing. (In re

Casey D. (1999) 70 Cal.App.4th 38, 47.) The change “must be of such significant nature

that it requires a setting aside or modification of the challenged prior order.” (Ansley v.

Superior Court (1986) 185 Cal.App.3d 477, 485.) Showing that circumstances are in the

process of changing is insufficient because of the interest in promoting stability for the

child, a concern that is heightened in cases like this where the child is of very young age.

(In re A.S. (2009) 180 Cal.App.4th 351, 358; In re Casey D., supra, at p. 47.)

The petition is addressed to the sound discretion of the juvenile court, and its

decision will not be overturned on appeal in the absence of a clear abuse of discretion.

(In re Stephanie M., supra, 7 Cal.4th at p. 318; In re S.J. (2008) 167 Cal.App.4th 953,

959.)

We recognize the difficulty of establishing a change of a parent’s circumstances

where the problems that led to the dependency relate to chronic drug abuse, as was the

case here. (See Kimberly F., supra, 56 Cal.App.4th at p. 531, fn. 9 [“[i]t is the nature of

addiction that one must be ‘clean’ for a much longer period . . . to show real reform”]; see

also In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081 [no changed circumstances where

“recent efforts at rehabilitation were only three months old at the time of the section

366.26 hearing”].) That is due to the persistent nature of drug addiction, particularly with

drugs like heroin and methamphetamines. Relapse is common, even after months of

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sobriety, and a return to drug use can throw a child back into circumstances of neglect

and abuse.

Here, father’s efforts at rehabilitation are truly laudable, but his recovery was still

“young,” insofar as his sobriety had not been sustained long enough to show his situation

was duly changed, rather than changing. With a very young child like R.C., we must be

mindful that childhood does not wait for the parent to become adequate. (Michael G. v.

Superior Court (2023) 14 Cal.5th 609, 627; In re Marilyn H., supra, 5 Cal.4th at p. 308;

see also, In re C.W. (2019) 33 Cal.App.5th 835, 839.) Father had received 12 months of

services but had not established the sustained sobriety that would support a finding of

changed circumstances.

For this reason, while we commend father’s efforts, we conclude the juvenile court

did not abuse its discretion in denying the requested modification.

2. Whether the Court and DPSS Properly Discharged the Duty of Continuing
Inquiry into Possible Indian Ancestry.

Father also argues the Department failed to inquire of relatives whether there was

Indian ancestry. DPSS, which acknowledges that no inquiry was made of relatives,

argues there was and is no duty to inquire of relatives because the child was detained

based on protective custody warrants, so the inquiry provisions of section 224.2,

subdivision (b), were not triggered, relying upon the recent case out of our division, In re

Robert F. (2023) 90 Cal.App.5th 492, review granted July 26, 2023, S279743 (Robert

F.). We disagree with that approach and conclude the duty of inquiry begins when the

children are received by DPSS, by whatever means.

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 ICWA reflects a congressional determination to protect Indian children and to

promote the stability and security of Indian tribes and families by establishing minimum

federal standards that a state court, except in emergencies, must follow before removing

an Indian child from his or her family. (25 U.S.C. § 1902; see In re Isaiah W. (2016) 1

Cal.5th 1, 7-8.) In any “proceeding for the foster care placement of, or termination of

parental rights to, an Indian child,” the Indian custodian and the Indian child’s tribe have

the right to intervene and may petition the court to invalidate any foster care placement of

an Indian child made in violation of ICWA (25 U.S.C., §§ 1911, subd. (c), 1914; see

Welf. & Inst. Code, § 224, subd. (e)).

Under California law, the juvenile courts and the child protective agencies, “(but

not parents)[, have] an ‘affirmative and continuing duty to inquire’ whether a child in the

dependency proceeding ‘is or may be an Indian child.’” (In re Benjamin M. (2021) 70

Cal.App.5th 735, 741-742, quoting § 224.2, subd. (a).) “That duty to inquire begins with

[the] initial contact [citation] and obligates the juvenile court and child protective

agencies to ask all relevant involved individuals whether the child may be an Indian

child.” (In re T.G. (2020) 58 Cal.App.5th 275, 290, citing § 224.2, subds. (a)-(c).)

Section 224.2, subdivision (a), expressly states the duty to inquire is not limited to asking

the reporting party if they have information that the child may be an Indian child.

Section 224.2, subdivision (b), requires the department to ask extended relatives where “a

child is placed into the temporary custody of a county welfare department pursuant to

Section 306.” Section 306, subdivision (b), requires departmental inquiry into Indian

13
heritage pursuant to section 224.2, “[u]pon receiving temporary custody of a child.”

“Under both ICWA and California law, ‘“extended family member[s]”’ include the

child’s ‘grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece

or nephew, first or second cousin, or stepparent.’ [Citations.]” (In re D.S. (2020) 46

Cal.App.5th 1041, 1053; see also, In re Dominick D. (2022) 82 Cal.App.5th 560, 567.)

Upon each party’s first appearance in a dependency proceeding, the juvenile court must

ask each participant “whether the participant knows or has reason to know that the child

is an Indian child” (§ 224.2, subd. (c)), and “[o]rder the parent . . . to complete [an

ICWA-020 form].” (Cal. Rules of Court, rule 5.481(a)(2)(C).)

“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.” (§ 224.2, subd. (a).) The initial contact refers to the first in-person

contact between DPSS and the family following a referral to investigate for child abuse

or neglect. (See Child Welfare Services, Manual of Policies and Procedures, §§ 31-

125.1, 32-127.1 [describing the social worker’s investigatory duties of in-person contact

to assess risk upon receiving a referral for suspected abuse or neglect].)

Removal of a child from his parents is the true triggering event, because ICWA is

not involved in juvenile dependency proceedings where a child remains placed with his

14
parent or parents. The language of ICWA specifically states that it applies when a child

is placed in foster care or an adoptive placement: “The Congress hereby declares that it

is the policy of this Nation to protect the best interests of Indian children and to promote

the stability and security of Indian tribes and families by the establishment of minimum

Federal standards for the removal of Indian children from their families and the

placement of such children in foster or adoptive homes which will reflect the unique

values of Indian culture, and by providing for assistance to Indian tribes in the operation

of child and family service programs. (25 U.S.C. § 1902, italics added.)

Not every child is removed at the time of “initial contact.” A peace officer may

take a child or children into temporary custody without a warrant, based on probable

cause to believe the child is a person coming under the definition of a dependent child, or

when the child is in apparent need of protection from harm. (See § 305.) Once taken into

temporary custody, the peace officer must try to contact the parent or guardian, and, if the

parent or guardian cannot be contacted, the peace officer shall notify a social worker in

the county welfare department to assume custody of the child. (§ 305, subd. (a).) When

delivered to the social services agency, a social worker must 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. (§ 306, subd. (a).)

An initial contact may also occur when the social services agency receives a

referral for suspected abuse or neglect, investigates the referral, and determines that the

child has an immediate need for medical care or is in immediate danger of physical or

15
sexual abuse or the physical environment poses an immediate threat to the child’s health

or safety. In such situations, a social worker may take the child into custody and detain

him or her without a warrant. (§ 306, subd. (a)(2).)

A child may also be taken into temporary custody by means of a protective

custody warrant, where there is no emergency situation requiring immediate removal.

(§ 340.) In any of these situations, the child is “received” by the agency, and “[u]pon

receiving temporary custody of a child, the county welfare department shall inquire

pursuant to Section 224.2, whether the child is an Indian child.” (§ 306, subd. (b).)

Some recent published decisions have concluded that the duty of inquiry of

extended relatives is limited to situations in which the social services agency takes the

child into custody without a warrant. (See Robert F., supra, 90 Cal.App.5th 492, relying

upon In re Adrian L. (2022) 86 Cal.App.5th 342, 364 (conc. opn. of Kelley, J.); see In re

Ja.O. (2023) 91 Cal.App.5th 672, 677-678, review granted July 26, 2023, S280572.)

However, each of these decisions misinterprets the language of section 224.2,

subdivision (b), without considering section 306 in its entirety. The reference to section

306 in section 224.2, subdivision (b), is general and does not limit the duty of inquiry to

any specific subdivision of section 306. Instead, section 306, subdivision (b), provides,

without limitation “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.”

Yet Robert F., on which In re Ja.O. relies, incorrectly states that “Section 306

authorizes county welfare departments to take children into temporary custody ‘without a

16
warrant’ in certain circumstances. (§ 306, subd. (a)(2).)” (Robert F., supra, 90

Cal.App.5th at p. 497.) The statute contains no such language. The decision then goes

on to hold that the duty to inquire of extended family is limited to children received by

the department in that circumstance. We disagree with this analysis.

Section 306, subdivision (a)(2), is simply a description of one of the various

means in which the department assumes responsibility to temporarily place and care for a

child who is removed from his or her parents. The Legislature described situations in

which a social worker, responding to an emergency referral, initiates a contact and

determines that immediate removal of a child is necessary, from situations in which a

peace officer delivers a child to the Department. Reading the entire statute, it broadly

describes the social services agency’s authority to receive and maintain a child in

temporary custody, and its duty to inquire about possible Indian heritage. By relying on

the language of a single subsection of section 306, that is, subdivision (a)(2), to reach

their conclusions, the conclusions of Robert F. and Ja.O. ignore the rest of section 306.

Yet section 224.2, subdivision (b), refers generally to section 306. There is no language

limiting the application of section 224.2 to situations arising under section 306,

subdivision (a)(2), as the cases suggest.

Section 306, subdivision (a), covers situations in which the social worker receives

a child pending investigation, who was delivered by a peace officer. (§ 306,

subd. (a)(1).) Children removed pursuant to a warrant are similarly “received” by the

Department when a peace officer executes a protective custody warrant and delivers a

17
child to the Department. (§ 340, subd. (c).) In other words, use of language in section

306 referring to the department’s receipt of a child into its temporary care indicates a

legislative intent not to exclude or limit the application of section 306 to any single type

of situation. When a child is received by the agency, the duty of inquiry is triggered.

Because the duty to inquire of extended relatives pursuant to section 224.2,

subdivision (b), applies to children who are received by the Department by the means

described in section 306, that condition is met when a child is picked up by peace officers

pursuant to a protective custody warrant and is “delivered” to the Department, which then

“receives” the child pursuant to section 306, subdivision (a)(1).

The express language of section 306, subdivision (a)(1), covers situations in which

the Department “receives” a child who is delivered by a peace officer upon the execution

of a protective custody warrant that was issued pursuant to section 340, and does not

exclude children taken into custody pursuant to a protective custody warrant. Therefore,

children detained upon the execution of a protective custody warrant are delivered to the

social worker within the meaning of section 306, subdivision (a)(1), whereupon the duty

of inquiry into Indian ancestry is triggered.

In our view, section 306, subdivision (a)(2), authorizing a social worker to

immediately “take into and maintain temporary custody of, without a warrant” is

intended to serve the obvious purpose of permitting the social worker to act quickly in the

face of exigent circumstances, without the necessity of seeking a pre-petition warrant, or

waiting until the initial hearing on the petition, where an emergency is present. Nothing

18
in the statute reflects that the Legislature intended to limit the duty of inquiry to such

situations. Indeed, such an interpretation would directly contravene the express

provisions of ICWA itself, which applies to any removal of an Indian child from the

custody of a parent, where the child will be placed in foster or adoptive placement.

It is the delivery of the child to the Department that triggers section 306,

subdivisions (a)(1) and (b), which, in turn, trigger the duty of inquiry pursuant to section

224.2, subdivision (b). Thus, the fact the child was detained upon a warrant does not give

rise to a lesser duty of inquiry into Indian ancestry. We therefore adopt the reasoning of

In re Delila D. (2023) 93 Cal.App.5th 953, review granted September 27, 2023, S281447,

where another panel of this court determined that the duty of inquiry of extended relatives

is triggered whenever the social services agency receives a child and maintains temporary

custody.

The Department’s interpretation of section 224.2, subdivision (b), as followed in

the recent case of Robert F., would frustrate the legislative intent, which is to ensure a

continuing, full, and complete inquiry respecting possible Indian heritage of children

removed from parents’ custody, contrary to the Department’s suggestion. While neither

parent claimed any Indian ancestry at the detention hearing, this did not relieve the

Department of its duty to inquire into possible Indian ancestry as “parents may not know

their possible relationship with or connection to an Indian tribe.” (In re Y.W. (2021) 70

Cal.App.5th 542, 554; see In re Breanna S. (2017) 8 Cal.App.5th 636, 650.)

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 Here, the Department interviewed both grandmothers and other relatives in the

initial stages of the dependency.3 Asking family members about possible Indian heritage

while also inquiring of relatives about the parents’ family history, is not an undue burden.

We remand the matter to conduct an inquiry of relatives as to possible Indian heritage.

DISPOSITION

The order terminating parental rights is conditionally reversed. On remand, the

juvenile court shall order the Department to comply with the duty of initial inquiry (Welf.

& Inst. Code, § 224.2, subd. (b)) and, if and when applicable, the duty of further inquiry

(Welf. & Inst. Code, § 224.2, subd. (e)) and the duty to provide notice to the pertinent

tribes (25 U.S.C. § 1912(a); Welf. & Inst. Code, § 224.3). If the juvenile 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

RAMIREZ
P. J.
I concur:

RAPHAEL
J.

3 We are aware that the maternal grandmother is now deceased after contracting
Covid-19, but the maternal cousin, who was initially considered for relative placement, is
available.

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[In re R.C., E080692]

FIELDS, J., Concurring and Dissenting.

I fully concur in the majority’s decision in this case except its holding determining

that an inadequate ICWA inquiry occurred below and its adoption of the reasoning and

holding of this court’s decision in In re Delila D. (2023) 93 Cal.App.5th 953, review

granted September 27, 2023, S281447, regarding the scope of the ICWA inquiry required

in this case. I continue to agree with and follow this court’s decisions on the ICWA

inquiry question in In re Robert F. (2023) 90 Cal.App.5th 492, review granted July 26,

2023, S279743; In re Ja.O. (2023) 91 Cal.App.5th 672, review granted July 26, 2023,

S280572; and In re Andres R. (2023) 94 Cal.App.5th 828, 836, 840-860, review granted

November 15, 2023, S282054. Thus, I would affirm the decision of the juvenile court.

FIELDS
J.

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