Review the most recent legal developments in dependency case law. Our talented in-house Writ Team provides an in-depth analysis on In re R.F., In re Andres R., In re N.F.,
In re R.F.—published 8/21/23; Fourth District, Div. Two
Docket No. E079941
Link to case: https://www.courts.ca.gov/opinions/documents/E079941.PDF
A PROSPECTIVE ADOPTIVE PARENT, OR CAREGIVER WHO
QUALIFIES AS A PROSPECTIVE ADOPTIVE PARENT, MUST BE
PROPERLY NOTICED OF THE INTENT TO REMOVE A CHILD FROM
THEIR CARE AND BE PROVIDED AN OPPORTUNITY TO OBJECT.
The juvenile court terminated parental rights to R.F. and B.F. in 2021. At the
time, the children resided with paternal grandmother (M.F.) and her
husband. On March 11, 2022, the agency filed a notice of emergency removal
for the children due to alleged methamphetamine use by M.F.’s husband. On
the same day, the agency filed proofs of notice under section 366.26(n), which
indicated that on March 11, 2022, the agency provided M.F. with oral inperson notice of the removal. The proofs of notice failed to show that the
agency gave M.F.: 1) copies of the emergency removal notices (JV-324); 2) a
form to object to removal (JV-325); 3) a form to request prospective adoptive
parent designation (JV-321). Later that month, M.F. went to the courthouse
and was told she could object to the removals. Two weeks after the removals,
she filed JV-325 forms requesting a hearing pursuant to section 366.26(n).
The juvenile court never set such a hearing. Later that year, M.F. filed
section 388 petitions asking for return of the children; the petitions asserted
she was never informed of her right to object to and request hearings on the
removals. The juvenile court denied the 388 petitions without an evidentiary
hearing on the grounds that M.F. failed to timely file her objections and that
the decision to hold a section 366.26(n) hearing was discretionary.
Reversed. When a caregiver who has been designated a prospective adoptive
parent or qualifies for such status timely objects to removal, the court must
hold an evidentiary hearing to determine whether the agency has shown
removal is in the child’s best interest. M.F. met the threshold criteria for
prospective adoptive parent designation, and thus had five court days or
seven calendar days, whichever was longer, to object to removal. However,
the agency failed to properly notify her of the removals. Pursuant to Cal.
Rules of Court, rule 5.728(c), the agency was required to provide notice of the
emergency removal by phone or personal service of the JV-324, and, if
noticing by phone, include the reasons for removal and the right to object.
Rule 5.728 further provides that “whenever possible” the agency must give
the caregiver forms JV-321 and JV-325. The proofs of notice, however, failed
to show that the agency notified M.F. of the reasons for removal or her right
to object and request a hearing. The agency failed to show why it could not
give M.F. a JV-321 and JV-325. Because the agency failed to properly notify
M.F. of the removals, the period for filing objections never commenced, and
M.F.’s objections were timely. Alternatively, the lack of notice constituted
good cause to extend the filing period, and M.F.’s objections were timely. The
juvenile court was required to hold an evidentiary hearing on the removals.
(SL)
In re Andres R.—filed 8/23/2023; Fourth Dist., Div. Two
Docket No. E079972
Link to case: https://www.courts.ca.gov/opinions/documents/E079972.PDF
[1] THE DUTY TO INQUIRE OF KNOWN RELATIVES DOES NOT APPLY
WHEN AN AGENCY TAKES A CHILD INTO PROTECTIVE CUSTODY
PURSUANT TO SECTION 340; [2] CALIFORNIA RULES OF COURT,
RULE 5.481(A) IS INCONSISTENT WITH LEGISLATIVE INTENT AND
THEREFORE DISAPPROVED.
One-year old, Andres R. witnessed a domestic violence incident between his
parents, resulting in a child welfare agency investigation. After an
unsuccessful welfare check by law enforcement, the agency took Andres R.
into protective custody pursuant to section 340. During the investigation,
mother denied having Native American ancestry, but father refused to be
interviewed. At the detention hearing, father submitted an ICWA-020 form
indicating that Andres might be eligible for membership in the Cherokee
tribe. The juvenile court detained Andres from his parents and found ICWA
may apply. Subsequently, father told the agency he had Cherokee ancestry.
The agency also interviewed the child’s paternal grandmother who denied
that she or the paternal grandfather had Native American ancestry. Prior to
the jurisdiction and disposition hearing, the agency reached out to the
Cherokee Nation and the tribe responded that Andres was not an Indian
child or member of the Cherokee Nation. At the jurisdiction and disposition
hearing, the juvenile court sustained the petition in part, removed Andres
from his parents, and found ICWA did not apply to Andres. Father appealed
the court’s jurisdictional and disposition orders, and argued the agency
violated section 224.2, subdivision (b), by failing to ask extended family
members about Andres’ potential Native American ancestry.
Affirmed. In the published portion of the case, the Court rejected father’s
assertion of ICWA error. Section 224.2, subdivisions (a) and (c) require the
agency and the juvenile court to ask the reporting party and each participant
who appears in court whether the child is an Indian child for the purposes of
ICWA. In some circumstances, California law requires the agency to conduct
an expanded inquiry of the child’s extended relatives. Specifically, section
224.2, subdivision (b), states that the agency must ask the child’s extended
family members about the child’s ancestry if the child is placed into
temporary custody pursuant to section 306. Section 306 authorizes the
agency to take a child into temporary custody without a warrant when there
are emergency circumstances, such as an immediate threat to the child’s
safety. Here, the agency detained Andres pursuant to a protective custody
warrant, not pursuant to section 306. As such, the agency was not obligated
to interview extended family members about Andres’ potential Native
American ancestry. As articulated in In re Robert F. (2023) 90 Cal.App.5th
492 and In re Ja.O. (2023) 91 Cal.App.5th 672, the plain meaning and
legislative intent of section 224.2, subdivision (b), is clear. The agency’s duty
to inquire of extended relatives is triggered when the child is taken into
temporary custody pursuant to section 306, and not when the child is taken
into protective custody via a warrant. The express language in the statute
limiting the agency’s obligation to make extended-relative inquiries to
situations where section 306 applies, is reasonable and complies with Federal
and BIA guidelines. Furthermore, California Rules of Court, rule 5.481,
which outlines the extended-relative inquiry for ICWA purposes, does not
require an expanded application of the extended-relative inquiry. While rule
5.481 omits reference to section 306, the history of amendments to the rule
demonstrates that such omission was likely unintentional. To the extent rule
5.481 expands the duty of extended-relative inquiry beyond the limits
imposed by section 224.2, subdivision (b), it is inconsistent with the
legislature’s intent, and therefore, disapproved. The concurring opinion,
which relies on the analysis articulated in In re Delila D. (2023) 93
Cal.App.5th 953, is not persuasive because its analysis of the legislative
history is unreasonable and contrives the plain meaning of the statute.
Plainly, section 224.2, subdivision (b), provides that the agency’s obligation to
inquire of extended relatives is triggered in circumstances where section 306
applies. Because Andres was not detained pursuant to section 306, the
agency was not required to conduct an extended-relative inquiry, and there
was no ICWA error. (TL)
In re N.F.—published 8/10/2023; Second District, Div. Three
Docket No. B318674
Link to Case: https://www.courts.ca.gov/opinions/documents/B318674.PDF
A SECTION 388 PETITION SEEKING THE REINSTATEMENT OF
REUNIFICATION SERVICES AFTER TERMINATION OF DEPENDENCY
JURISDITION DOES NOT TRIGGER A DUTY OF INITIAL INQUIRY
UNDER ICWA.
From the onset of dependency proceedings, mother denied Native American
ancestry. Father was deceased and mother denied being aware of possible
Indian ancestry through the paternal family. The juvenile court sustained the
petition and removed N.F. from mother. N.F. was placed with a paternal
uncle. Reunification services were offered, but a section 366.26 hearing was
set after termination of mother’s services. The paternal uncle was
subsequently declared N.F.’s legal guardian and dependency jurisdiction was
terminated. A year after dependency jurisdiction was terminated, mother
filed a section 388 petition seeking to reinstate her reunification services with
N.F. In their response to mother’s 388 petition, the agency believed there was
not a reason to know N.F. was an Indian child due to the juvenile court’s
previous ICWA findings. The juvenile court denied mother’s section 388
petition. Mother timely appealed, but did not contest the decision to deny her
section 388 petition. Instead, mother’s appeal asserted a failure to comply
with the initial duty of inquiry required under ICWA.
Affirmed. Mother argued the failure to comply with the duty of initial inquiry
under section 224.2 upon filing of her section 388 petition required reversal of
the previous legal guardianship order. Mother’s argument was found to be
unpersuasive. The juvenile court did not order a legal guardianship at the
section 388 hearing, legal guardianship was ordered a year prior. Mother had
the right to challenge the legal guardianship order and the underlying ICWA
finding, but declined to do so. By failing to appeal the legal guardianship
order in a timely manner, mother forfeited the right to challenge the court’s
implied ICWA finding made as part of that permanency order. Further,
mother’s section 388 petition was not a dependency proceeding since N.F. was
no longer a dependent of the juvenile court; the duty of initial inquiry under
section 224.2 was not triggered because the section 388 hearing was not an
Indian child custody proceeding. ICWA notice must be provided in hearings
that may culminate in an order for foster care placement, termination of
parental rights, preadoptive placement, or adoptive placement pursuant to
section 224.3, subdivision (a). The section 366.26 hearing at which the court
selected legal guardianship as N.F.’s permanent plan was an Indian child
custody proceeding; the post-permanency section 388 hearing was not. (MO)