Review the most recent legal developments in dependency case law. Our talented in-house Writ Team provides an in-depth analysis on In re C.L.; In re R.Q.
In re C.L. —published 10/13/2023; Third Dist.
Docket No. C097911; 96 Cal.App.5th 377
Link to case: https://www.courts.ca.gov/opinions/documents/C097911.PDF
WHEN A CHILD IS REMOVED PURSUANT TO A SECTION 340
PROTECTIVE CUSTODY WARRANT, THE DUTY TO INQUIRE OF
EXTENDED FAMILY MEMBERS AS TO THE CHILD’S NATIVE
AMERICAN ANCESTRY APPLIES
C.L. was detained from parents pursuant to a protective custody warrant.
The social worker asked the parents about Native American ancestry, and
mother reported that father may have Cherokee ancestry but that it was not
verified. At the initial hearing, the court asked both parents if the child had
Native American ancestry. Mother said she was unsure, and father said he
had Cherokee ancestry through his great-grandmother but that it was not
verified. The minute order stated ICWA may apply, but the full findings and
orders from the hearing indicated ICWA did not apply. For jurisdiction/
disposition hearing, the agency reported ICWA did not apply, and the court
found ICWA did not apply following the disposition hearing. The court
eventually terminated parental rights. Father appealed.
Conditionally reversed with directions. The duty to inquire of extended
family members about a child’s Native American ancestry applies when a
child is detained pursuant to a warrant. There is, however, a split in
authority about the issue. Early cases and California Rule of Court, rule
5.481(a)(1), require such an expanded initial inquiry whenever a child is
removed from their parents. Some courts, including the court in In re Robert
F. (2023) 90 Cal.App.5th 492, review granted July 26, 2023, S279743, later
held that there are two types of initial inquiries – an extended inquiry for
children removed without a warrant, and a narrower inquiry for children
removed with a warrant. In re Delila D. (2023) 93 Cal.App.5th 953, review
granted September 27, 2023, S281442 (Delila D.) held “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 [the] home.”
(Delila D., at p. 962.) Delila D.’s analysis is persuasive. Section 340 mandates
that a child detained via warrant be handed over to a social worker for
temporary custody, whose duties are then delineated in section 306. Section
224.2 was enacted to expand the scope of initial inquiry beyond the parents.
A.B. 3176, which enacted section 224.2, was intended to track the BIA
guidelines, which recommended the expanded initial inquiry to extended
family members in emergency situations. The federal regulations that the
BIA guidelines interpret provide that emergency proceedings are “any court
action that involves an emergency removal or emergency placement of an
Indian child.” (25 C.F.R. §§ 23.113, 23.2.) An order for the detention of a child
at an initial hearing is an “emergency removal” under federal law, which
occurs without the full protections of the ICWA, much like the emergency
removal proceedings. As such, a removal under section 340 is an emergency
proceeding under the ICWA requiring the expanded scope of initial inquiry,
as to apply a narrower inquiry would frustrate the purpose of the law. The
agency failed to conduct an initial inquiry of extended family members, which
was prejudicial, and failed to conduct a further inquiry into the father’s
claims of Cherokee ancestry. As such, the matter was conditionally reversed.
(KH)
In re R.Q.—published 10/16/23; Fourth Dist., Div. Two
Docket No. E080765; 96 Cal.App.5th 462
Link to case: https://www.courts.ca.gov/opinions/documents/E080765.PDF
WHILE WIC 361.2 DOES NOT AUTHORIZE PLACEMENT OF A CHILD
WITH A BIOLOGICAL PARENT, WIC 362 AND OTHER STATUTORY
PROVISIONS GIVE BROAD AUTHORITY TO PLACE IF IT IS IN THE
CHILD’S BEST INTEREST
R.Q. and her sister were taken into protective custody due to allegations of
physical abuse by their stepmother and presumed father’s failure to protect
them. A petition was filed that additionally alleged mother’s failure to protect
R.Q. from physical abuse, the parents’ substance abuse problems, and
mother’s untreated mental illness. At the detention hearing, mother advised
that C.H., who lived in Missouri, was R.Q.’s biological father. The child
believed presumed father K.H. to be her biological father. C.H. soon appeared
in the proceedings and advised that, while R.Q. had never lived with him, she
had visited him five to 10 times, including four overnight visits. C.H. last saw
the child at the end of the previous summer. C.H. agreed he did not have a
parental relationship with R.Q., who believed him to be her mother’s friend.
C.H. would also later report that the presumed father, mother, stepmother,
and the children had previously visited him in Missouri and that R.Q. had
become attached to him during that visit. During her next and most recent
summer visit at his home, R.Q. told C.H. that she enjoyed the visit, wanted to
visit again, and liked his home “because everyone was nice.” C.H. previously
expressed to mother his intent to travel to California to take a paternity test
and seek full custody of R.Q. At a pretrial hearing, C.H. requested telephone
or remote visits, which the juvenile court granted. A court-ordered paternity
test confirmed C.H. was the biological father. The agency provided an update
that C.H. was having weekly video visits with R.Q., who referred to him as
her “best friend.” The agency filed an amended petition alleging C.H. had
failed to protect and provide for R.Q. The parties agreed through mediation
on a modified count that C.H. had failed to establish paternity and support
R.Q. and that reunification services would be provided to him. After
continuation of the adjudication hearing, C.H. requested and obtained inperson monitored visits to take place while he was in California. The agency
later provided an update that R.Q. was bonded to and wished to reside with
C.H., and now recommended placement with C.H. At disposition, the juvenile
court removed R.Q. from mother and presumed father and found it was in
R.Q.’s best interest to be placed with services in the home of her biological
father. Presumed father appealed the order of placement with the biological
father.
Affirmed. A biological father is neither entitled to custody under WIC 361.2
nor to reunification services under WIC 361.5 if he has not attained
presumed father status prior to the termination of any reunification period.
The biological father may, however, petition the juvenile court under WIC
388 to reconsider earlier rulings based on new evidence or changed
circumstances. Nonetheless, the juvenile court has broad discretion to order
placement of a child with their biological father if it is in the child’s best
interest. WIC 362 provides the juvenile court with broad discretion to make
“any and all reasonable orders for the care, supervision, custody, conduct,
maintenance, and support of the [dependent] child.” WIC 245.5 likewise
authorizes the juvenile court to make orders to the parent of a dependent
child as “deem[ed] necessary and proper for the best interests of” the child,
including for their “care, supervision, custody, conduct, maintenance, and
support.” Additionally, WIC 361.3 requires the juvenile court to consider the
child’s “best interest” in deciding their placement. [Note: the Court treated
the biological father as a relative as defined in WIC 361.3(c)(2).] The
fundamental premise of dependency law is that all orders must serve the
child’s best interest. Here, although C.H. was a “mere biological father,” he
expressed an interest in the child as soon as the case began, personally
appeared at most of the hearings, had an established relationship with her
prior to the proceedings, regularly visited prior to the dispositional hearing,
was observed to be attentive and loving toward the child who, in turn,
expressed wanting to live with him, and the agency had positively assessed
his home by the time of the dispositional hearing. Under these facts, there
was no abuse of discretion in placing the child with her biological father.
(ML)