In re Delila D. ( 2023 )

Filed 7/21/23
See dissenting opinion
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re DELILA D., a Person Coming Under
the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES, E080389
Plaintiff and Respondent, (Super.Ct.No. RIJ118579)
v. OPINION
M.T.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Dorothy McLaughlin,
Judge. Conditionally reversed with directions.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and
Appellant.
Minh C. Tran, County Counsel, Teresa K.B. Beecham and Larisa R-McKenna,
Deputy County Counsel, for Plaintiff and Respondent.
1
This case concerns a social worker’s duty to inquire whether a child involved in a
dependency proceeding “is or may be an Indian child” under the Indian Child Welfare
Act (25 U.S.C. § 1901 et seq.) (ICWA), a duty commonly referred to as the “initial
1
inquiry.” (Welf. & Inst. Code, § 224.2, subd. (a).) In 2018, our Legislature expanded this
duty as part of Assembly Bill No. 3176 (2017-2018 Reg. Sess.), which added various
new ICWA-related provisions to the Welfare and Institutions Code that became effective
January 1, 2019. (Stats. 2018, ch. 833 (A.B. 3176), § 5.)
Sponsored by a tribal coalition, the new law was designed to increase tribes’
opportunity to be involved in child custody cases involving Indian children by, among
other things, expanding the scope of the initial inquiry beyond the child’s parents. The
new law was also designed to bring California law into compliance with recent federal
ICWA regulations imposing minimum requirements to state court emergency
proceedings involving Indian children. To achieve these purposes, A.B. 3176 imposed
new ICWA-related requirements for the temporary custody and detention of Indian
children and expanded the initial inquiry to include “extended family members, others
who have an interest in the child, and the party reporting child abuse or neglect.”
(§ 224.2, subd. (b); see also §§ 306, 319.)
At issue in this appeal is whether the initial inquiry encompasses available
extended family members in every proceeding where a child is removed from home or in
1 Unlabeled statutory citations refer to the Welfare and Institutions Code.
2
only those cases where the social worker takes temporary custody of the child without a
warrant under exigent circumstances, as our court recently held in In re Robert F. (2023)
90 Cal.App.5th 492 (Robert F.). In this case, the child was initially taken into the custody
of the Riverside County Department of Public Social Services (the department) by
protective custody warrant before being detained by the juvenile court and later removed
at disposition. Reunification efforts failed, and the juvenile court ultimately terminated
parental rights and freed the child for adoption. Relying on Robert F., the department
argues that because the child wasn’t initially removed from home without a warrant, the
duty to interview available to extended family members never arose.
We conclude 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
home. Applying a narrower initial inquiry to the subset of dependencies that begin with a
temporary removal by warrant frustrates the purpose of the initial inquiry and “den[ies]
tribes the benefit of the statutory promise” of A.B. 3176. (In re S.S. (2023) 90
Cal.App.5th 694, 711 (S.S.).) The goal of the initial inquiry is to determine whether
ICWA’s protections may apply to the proceeding, and the way a child is initially
removed from home has no bearing on the question of whether they may be an Indian
child. The holding of Robert F. is, in our view, contrary to both the letter and spirit of
A.B. 3176.
3
Because the department in this case failed to ask the child’s available extended
family members whether the child has any Native American ancestry, we conditionally
reverse the order terminating parental rights and remand for the juvenile court to direct
the department to complete its investigation.
I
FACTS
The subject of this dependency is Delila D., whose mother, M.T. (mother), and
father, M.D. (father), have a history of methamphetamine use and homelessness. Before
this proceeding began, mother and father signed a caregiver’s affidavit giving mother’s
friend, Amanda, permission to care for Delila. On January 22, 2021, the department
received a referral alleging that Amanda’s boyfriend was sexually abusing Delila and her
half sibling. At the time, the half sibling was living with the maternal uncle, A.M. As part
of her investigation, the social worker interviewed the half sibling and the maternal uncle,
and both confirmed the allegations of sexual abuse.
On January 24, 2021, the social worker obtained a protective custody warrant for
Delila, and the following day, the department placed her in a confidential foster home.
Both mother and father denied having any Native American ancestry.
On January 27, 2021, the department filed a dependency petition on behalf of
Delila, alleging she fell within the meaning of section 300, subdivision (b) (failure to
protect). The juvenile court held the detention hearing the following day and found a
prima facie case to detain Delila from her parents.
4
In a jurisdiction and disposition report filed on February 18, 2021, the social
worker listed the names and contact information of seven relatives she had attempted to
notify about Delila’s detention and interview about potential placement. She had received
no response to the letters she had sent to the mailing addresses she had on file, and she
was unable to reach any of the individuals by phone, as the numbers were either wrong or
no longer in service.
On April 2, 2021, the juvenile court declared Delila a dependent under section
300, subdivision (b), removed her from her parents’ care, ordered family reunification
services for both mother and father, and found ICWA did not apply. During the
reunification period, the department placed Delila with her half sibling, E., in the home of
E.’s paternal grandmother (to whom Delila is not biologically related). Delila thrived in
the caretaker’s home, and the caretaker wanted to adopt her.
Reunification efforts were unsuccessful for both parents, and on November 22,
2022, the court held a selection and implementation hearing at which it terminated
parental rights and ordered adoption as Delila’s permanent plan.
II
ANALYSIS
Mother challenges the order terminating parental rights on the ground the court’s
prior finding that ICWA does not apply lacks evidentiary support. She argues the
department was required under section 224.2, subdivision (b) (section 224.2(b)) to ask
5
available extended family members whether Delila may have Indian ancestry and that its
failure to do so requires conditional reversal. We agree.
A. Inquiry and Notice Generally
Congress enacted ICWA in 1978 out of concern that “an alarmingly high
percentage of Indian families are broken up by the removal, often unwarranted, of their
children from them” by state agents who “fail[] to recognize the essential tribal relations
of Indian people and the cultural and social standards prevailing in Indian communities
and families.” (25 U. S. C. § 1901(4) & (5).) The statute’s purpose is to protect Indian
children and to promote the stability and security of Indian tribes and families. (25 U.S.C.
§ 1902.)
ICWA effectuates this purpose by setting minimum federal standards state courts
must follow in voluntary or involuntary custody proceedings involving Indian children.
(Ibid.; see also In re T.G. (2020) 58 Cal.App.5th 275, 287 (T.G.).) “If the Indian child
lives on a reservation, ICWA grants the tribal court exclusive jurisdiction over all child
custody proceedings, including adoptions and foster care proceedings. § 1911(a). For
other Indian children, state and tribal courts exercise concurrent jurisdiction, although the
state court is sometimes required to transfer the case to tribal court. § 1911(b). When a
state court adjudicates the proceeding, ICWA governs from start to finish.” (Haaland v.
Brackeen, 599 U.S. __, __, 2023 U.S. Lexis 2545 (slip opn., at *18) (Brackeen).)
Involuntary state court proceedings to place an Indian child in foster care or
terminate parental rights “are subject to especially stringent safeguards.” (Brackeen,
6
supra, U.S. Lexis 2545, citing 25 C.F.R. § 23.104 (2022).) For example, the party
initiating the proceeding must “notify the parent or Indian custodian and the Indian
child’s tribe” (25 U.S.C. § 1912(a)); the court cannot order a foster care placement unless
it finds “by clear and convincing evidence, including testimony of qualified expert
witnesses, that the continued custody of the child by the parent or Indian custodian is
likely to result in serious emotional or physical damage to the child” (25 U.S.C.
§ 1912(e)); and, to terminate parental rights, the court must make the same finding
“beyond a reasonable doubt” (25 U.S.C § 1912(f)).
Because ICWA applies to child custody proceedings involving an “Indian child,”
procedural rules for determining whether a child qualifies as such are crucial to the
statute’s application. ICWA defines an Indian child as either 1) a member of a tribe or 2)
a biological child of a member and eligible for membership. (25 U.S.C. § 1903(4);
§ 224.1, subd. (a).) The federal regulations implementing ICWA require state courts to
ask each “participant” in a child custody proceeding whether they “know[]” or have
“reason to know” the child is an Indian child. (25 C.F.R. § 23.107(a).) The regulations
also require state courts to direct the parties to inform the court if they receive
information providing a reason to know the child is an Indian child. (Ibid.) When the
court or department “knows or has reason to know” that an Indian child is involved, they
must send notice to any tribe to which the child belongs, or in which they may be eligible
for membership, informing the tribe of the pending proceedings and its right to intervene.
(25 U.S.C. § 1912(a); Welf. & Inst. Code, § 224.3.) Notice is “central to effectuating
7
ICWA’s purpose” because it enables the tribes to determine whether the child is an
Indian child and, if so, whether to intervene in or exercise jurisdiction over the custody
proceeding. (T.G., supra, 58 Cal.App.5th at p. 288.)
The federal regulations establish the minimum investigation a state must conduct
into a child’s possible status as an Indian child. However, ICWA allows states to require
more thorough investigations, and it directs that where states do so, the higher state
standard “shall apply.” (25 U.S.C. § 1921.) California has enacted such higher standards
for determining whether a child is an Indian child. (T.G., supra, 58 Cal.App.5th at
pp. 289-290.) This case involves only the first step in the investigation—the initial
inquiry, which the Legislature recently expanded with the enactment of A.B. 3176. (Stats.
2018, ch. 833, § 5.)
B. Section 224.2 and the Initial Inquiry
Added by A.B. 3176, section 224.2 sets out, among other things, the duty of initial
inquiry under California law. Section 224.2, subdivision (a) (section 224.2(a)) states that
both courts and social workers “have an affirmative and continuing duty to inquire
whether a child” for whom a section 300 petition is or may be filed “is or may be an
Indian child.” The duty “begins with the initial contact,” and includes, but is “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(a).)
8
Section 224.2(b) provides further guidance on the steps a social worker must take
as part of the initial inquiry. It consists of two sentences. The first provides that “[i]f a
child is placed into the temporary custody of a county welfare department pursuant to
Section 306,” the social worker “has a duty to inquire whether that child is an Indian
child.” (§ 224.2(b).) The second identifies which individuals are part of a social worker’s
initial inquiry. It states that the “[i]nquiry 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.” (Ibid.)
In addition, rule 5.481 of the California Rules of Court, which the Judicial Council
revised to implement section 224.2(b), states: “The party seeking a foster-care placement,
. . . termination of parental rights, preadoptive placement, or adoption must ask the child,
if the child is old enough, and the parents, Indian custodian, or legal guardians, extended
family members, others who have an interest in the child, and where applicable the party
reporting child abuse or neglect, whether the child is or may be an Indian child . . . .”
2
(Cal. Rules of Court, rule 5.481(a)(1) (rule 5.481).)
Read together, these provisions impose on social workers a duty of initial inquiry
that begins at first contact, lasts throughout the proceeding, and includes “but is not
limited to” the reporting party, the child’s parents and extended family members, and
2 Unlabeled citations to rules refer to the California Rules of Court.
9
others who have an interest in the child, as those individuals become available during the
case. In other words, the “duty to inquire begins with initial contact . . . and obligates the
juvenile court and child protective agencies to ask all relevant involved individuals
whether the child may be an Indian child.” (T.G., supra, 58 Cal.App.5th at p. 290, citing
§ 224.2, subds. (a)-(c), italics added.)
As we’ll explain, these provisions represent an expansion to the scope of a social
worker’s duty of initial inquiry.
C. A.B. 3176 Expanded the Scope of the Initial Inquiry
Codified in 2006 with the passage of Senate Bill No. 678 (2005-2006 Reg. Sess.),
the duty of initial inquiry was originally set out in former section 224.3. (Stats. 2006, ch.
838 (S.B. 678); In re Isaiah W. (2016) 1 Cal.5th 1, 9.) That provision stated that juvenile
courts and county welfare departments “have an affirmative and continuing duty” to
inquire whether a child involved in a dependency proceeding is or may be an Indian child
if the child had been placed in foster care or was “at risk of entering foster care.” (Isaiah
W., at p. 9; former § 224.3, subd. (a).) Though former section 224.3 did not specify which
individuals should be interviewed, our courts interpreted the provision to require inquiry
of the parents only. (See, e.g., In re C.Y. (2012) 208 Cal.App.4th 34, 42 [“The initial
inquiry . . . need only be made to the parents”]; see also In re J.K. (2022) 83 Cal.App.5th
498, 506 [noting the duty of initial inquiry “could be satisfied by asking the child’s
parents whether the child is or may be an Indian child”].)
10
As we’ve seen, under section 224.2, a social worker may no longer rely solely on
the child’s parents for information about possible Indian ancestry. Section 224.2(a)
requires social workers to make the initial inquiry of the party reporting the abuse, and
section 224.2(b) identifies several more individuals who must be interviewed, including
extended family members and any others “who have an interest in the child.” (§224.2(a)
& (b).)
The legislative history of A.B. 3176 reveals that this amendment was “tribal in
origin and purpose.” (S.S., supra, 90 Cal.App.5th at p. 699.) In November 2015, the
California Department of Justice’s Bureau of Children’s Justice created the ICWA
Compliance Task Force to gather empirical data on ICWA violations within the state and
recommend changes to California’s ICWA-implementing laws. (Cal. Health and Human
Services Agency, Enrolled Bill Rep. on Assem. Bill No. 3176 (2017-2018 Reg. Sess.)
prepared for Governor Brown (Aug. 31, 2018 & Sept. 4, 2018) p. 5 (Enrolled Bill
Report).) Made up of tribal representatives and advocates, the task force was the first of
its kind in California. (Ibid.)
The task force issued its report in 2017. Among other things, it recommended
broadening the initial inquiry to include not just a child’s parents, but their extended
family members as well. (California ICWA Compliance Task Force, Report to the
California Attorney General's Bureau of Children's Justice, 2017 [as of July 10, 2023],
archived at https://perma.cc/NYF6-VPY9 (Task Force Report) at p. 26.) The report
explained why relying on parents alone for the initial inquiry does not necessarily protect
11
the rights of the tribe: “When parents are the sole target of the initial inquiry, it should be
understood that there are a variety of reasons why relying on the parents does not
necessarily protect the child’s best interests, or the rights of the tribe. Parents may simply
not have that information, or may possess only vague or ambiguous information. [¶] The
parents or Indian custodian may be fearful to self-identify, and social workers are ill-
equipped to overcome that by explaining the rights a parent or Indian custodian has under
the law. Parents may even wish to avoid the tribe’s participation or assumption of
jurisdiction.” (Task Force Report, p. 28.)
In 2017, after the task force issued its report, tribal leaders from across the state
formed the California Tribal Families Coalition “to implement the [report’s]
comprehensive findings” and sponsor “key legislation that helps protect Native children
and tribal sovereignty.” (Enrolled Bill Report, supra, p. 6.) Comprised of 13 Tribal
Council leaders and five of the seven co-chairs of the task force, the coalition’s goal was
“to provide a strong and unified voice on behalf of tribal children.” (California Tribal
Families Coalition [as of July 10, 2023], archived at
.) The coalition was A.B. 3176’s “sponsor and source.”
(S.S., supra, 90 Cal.App.5th at p. 701; Assem. Com. on Judiciary, Rep. on Assem. Bill
No. 3176 [2017-2018 Reg. Sess.] as amended Apr. 11, 2018, pp. 1 & 10.)
As S.S. succinctly puts it, “California tribal leaders gathered narratives and data
about the failure of implementation of the Act. They issued a report that generated the
2018 amendment: the Legislature embraced the tribal proposal swiftly and without
12
opposition. The resulting law required [social workers] to ask ‘extended family members’
whether the child may be an Indian child.” (S.S., supra, 90 Cal.App.5th at p. 699.)
D. A.B. 3176 Imposed New Requirements for the Temporary Custody and
Detention of Indian Children
In addition to expanding the scope of the initial inquiry, A.B. 3176 imposed new
ICWA-related requirements for the temporary custody and detention of Indian children.
As many of the legislative materials describing A.B. 3176 observe, the changes to the
temporary custody and detention provisions were “intended to ‘conform [California law]
to changes to federal regulations” governing [ICWA].’” (Assem. Com. on Human
Resources, Rep. on Assem. Bill No. 3176 (2017-2018 Reg. Sess.) Apr. 10, 2018 Report,
p. 1; Assem. Com. On Human Services, 3d reading as amended May 25, 2018, p. 1;
Assem. Conc. in Sen. Amends., as amended Aug. 22, 2018, p. 1.)
In 2016, the federal government issued regulations applicable to emergency
proceedings involving Indian children. The regulations defined an “emergency
proceeding” as “any court action that involves an emergency removal or emergency
placement of an Indian child,” which, under California law, includes the detention
hearing under section 319. (25 C.F.R. § 23.2; Welf. & Inst. Code, § 319.) Under the
regulations, a state court may not order the emergency removal or placement of an Indian
child unless it “make[s] a finding on the record that the emergency removal or placement
is necessary to prevent imminent physical damage or harm to the child.” (25 C.F.R.
§ 23.113(b).) The regulations also extended the court’s initial inquiry obligation to
emergency proceedings. (25 C.F.R. § 23.107(a).)
13
As the Enrolled Bill Report for A.B. 3176 notes, at the time of their issuance,
these regulations represented “a departure from the existing application of ICWA in
California, where the minimum federal standards often do not get applied until the
dispositional hearing.” (Enrolled Bill Report, supra, p. 8.) To bring California law into
compliance with the 2016 regulations, our Legislature made several amendments to the
ICWA-related provisions in article 7 of the juvenile court law (§§ 305-324.5), which
governs temporary custody and detention prior to the jurisdiction hearing. (Welf. & Inst.
Code, div. 2, part 1, ch. 2, arts. 1 & 7.)
For example, A.B. 3176 added “Emergency proceeding” to the definitions in
section 224.1 and defined the term as “the initial petition hearing held pursuant to Section
319.” (§ 224.1, subd. (l); Stats. 2018, ch. 833, § 3.) A.B. 3176 added a provision to
section 319 that states that “any order detaining [an Indian] child pursuant to this section
shall be considered an emergency removal within the meaning of Section 1922 of the
federal Indian Child Welfare Act of 1978.” (§ 319, subd. (i); Stats. 2018, ch. 833, § 22.)
In addition, A.B. 3176 amended section 306, the provision authorizing social workers to
take temporary custody of children in advance of the initial petition (i.e., detention)
hearing, to require that “[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); Stats. 2018, ch. 833, § 19.)
14
If the child taken into temporary custody is an Indian child (or there is “reason to
know” they are), various provisions added by A.B. 3176 apply to both social workers and
the juvenile court. For example, leading up to the detention hearing, the social worker
must make “active efforts” to prevent the emergency removal of the Indian child from
their home and must submit a detention report containing more information than required
for non-Indian children. (§§ 306, subd. (f)(4), 319; Stats. 2018, ch. 833, §§ 19, 22.)
As another example, at the detention hearing, a higher standard applies to the
removal of Indian children than non-Indian children. A court may detain a non-Indian
child based on a finding that “[t]here is a substantial danger to the physical health of the
child or the child is suffering severe emotional damage, and there are no reasonable
means by which the child’s physical or emotional health may be protected without”
detaining the child. (§ 319, subd. (c)(1).) In contrast, with the enactment of A.B. 3176, a
court may detain an Indian child only upon a finding that detention is “necessary to
prevent imminent physical damage or harm,” and the court must “state on the record” the
facts supporting that finding. (§ 319, subd. (d); Stats. 2018, ch. 833, § 22.) And, when a
court orders the detention of an Indian child, ICWA’s placement preferences (codified in
§ 361.31) apply to the emergency placement unless the court finds “good cause” to
deviate from them. (§ 319, subd. (h)(1)(C); Stats. 2018, ch. 833, § 22.) Finally, A.B. 3176
added a provision allowing any party to request rehearing of the detention order for an
Indian child at any time “[p]rior to disposition” to present evidence to the court that the
15
emergency placement “is no longer necessary to prevent imminent physical damage or
harm to the child.” (§ 319.4; Stats. 2018, ch. 833, § 23.)
As the legislative history of A.B. 3176 shows, the impetus for expanding the scope
of the initial inquiry was different from the impetus for imposing the new ICWA-related
requirements for temporary custody and detention. A tribal coalition prompted the
expansion of the initial inquiry beyond parents, to include extended family members and
others, whereas the 2016 federal regulations prompted the new temporary custody and
detention requirements. (Enrolled Bill Report, supra, p. 8; see also S.S., supra, 90
Cal.App.5th at p. 696 [observing that the Legislature expanded the initial inquiry “at the
behest of tribes”].)
E. The Department’s Incomplete Initial Inquiry Requires Conditional Reversal
Here, the social worker failed to ask the maternal uncle whether Delila is or may
be an Indian child, despite the fact he was available from the outset of the case and she
spoke with him about other matters. Mother argues this failure is a violation of section
224.2(b)’s clear mandate to make the initial inquiry of available extended family
members. Relying on Robert F., the department argues the obligation to interview
extended family members arises only in cases that begin with the child being taken into
temporary custody without a warrant. The department argues that because Delila was
taken into custody by protective custody warrant, the social worker was not required to
interview the child’s extended family members.
16
We agree with mother. As we’ll explain, we conclude Robert F. misinterprets the
language and purpose of section 224.2(b).
1. We decline to follow Robert F.
In Robert F., Robert’s mother appealed the order terminating her parental rights on
the same ground as mother does here: that the department failed to ask available extended
family members whether Robert had Indian ancestry. (Robert F., supra, 90 Cal.App.5th
at p. 497.) Our court concluded that the duty to interview extended family members
contained in section 224.2(b) arises only if the child was initially removed from home
without a warrant under the exigent circumstances described in section 306, subdivision
(a)(2). (Robert F., at p. 504.) Based on this conclusion, we held the department was not
required to interview extended family members because Robert was not initially removed
from home without a warrant, he was removed by protective custody warrant. (Ibid.) In
other words, circumstances occurring before Robert was even detained dictated the scope
of the ICWA investigation that applied throughout his case, from disposition to
termination of parental rights.
To reach this conclusion, Robert F. interpreted the first sentence of section
224.2(b) as dictating the only circumstance under which the duty described in the second
applies. Robert F. held that section 224.2(b) “requires a county welfare department to ask
extended family members about a child’s Indian status only if the department has taken
the child into temporary custody under section 306.” (Robert F., supra, 90 Cal.App.5th at
p. 504, italics added.) In addition, Robert F. concluded that section 224.2(b)’s reference
17
to temporary custody “pursuant to [s]ection 306” is limited to circumstances where the
child is removed without a warrant. (Robert F., at pp. 500-501.)
We cannot join this reasoning for two reasons. First, we disagree that temporary
custody under section 306 is limited to circumstances where the child is removed without
a warrant. Section 306 authorizes a department to maintain a child in temporary custody
both when the child has been taken from home by a social worker or police officer under
exigent circumstances without a warrant (§ 306, subds. (a)(1) & (2)) and when the child
has been taken from home by means of a protective custody warrant issued under section
340 (§ 306, subd. (a)(1)).
When a child is removed by warrant, the taking is authorized by section 340, and
the holding or maintaining in custody is authorized by section 306, subdivision (a)(1).
That is, section 340 provides that when a child is taken from home by means of a
warrant, the child must be “delivered to” the social worker. (§ 340, subd. (c) [“Any child
taken into protective custody pursuant to this section shall immediately be delivered to
the social worker who shall investigate, pursuant to Section 309, the facts and
circumstances of the child and the facts surrounding the child being taken into custody
and attempt to maintain the child with the child’s family through the provision of
services”].) Section 306, subdivision (a)(1), in turn, authorizes the social worker to
“receive” the child and “maintain” them in temporary custody. (§ 306, subd. (a)(1).)
18
When a child is removed without a warrant, the taking is authorized by section
306, subdivision (a)(2) (for social workers) and by either section 305 or 305.6 (for police
officers). If a social worker takes a child without a warrant, section 306, subdivision
(a)(2) authorizes the social worker to “maintain” custody of the child. (See § 306, subd.
(a)(2) [permitting the social worker to both “[t]ake into and maintain temporary custody
of” a child the department removes from home without a warrant].) By contrast, if a
police officer takes a child without a warrant, section 306, subdivision (a)(1) authorizes
the social worker to “[r]eceive and maintain” the child upon delivery by the officer,
pending the detention hearing. (§ 306, subd. (a)(1).)
Regardless of whether a child is taken into custody by law enforcement and then
delivered to the department, or is taken by the department directly, it is the maintaining in
custody that triggers the need for a detention hearing. (See § 315 [“If a child has been
taken into custody under this article and not released to a parent or guardian, the
juvenile court shall hold a hearing (which shall be referred to as a ‘detention hearing’) to
determine whether the child shall be further detained”], italics added.) Whether the initial
taking involves law enforcement—and is thus termed “protective custody”—does not
alter the fact that the court is required to hold a detention hearing if the child is not going
to be released to a parent or guardian. (See In re Ethan C. (2012) 54 Cal.4th 610, 625 [“If
the child has been taken into temporary protective custody, and remains in custody at the
time the dependency petition is filed (see § 305 et seq.), the court must promptly hold a
19
detention hearing to determine whether he or she should be returned to the parent or
guardian pending the jurisdictional/dispositional hearing”].)
In this connection, we think it significant that section 224.2(b) uses the phrase
“placed into temporary custody” not “taken into temporary custody.” (§ 224.2(b).) In our
view, this word choice indicates the Legislature intended to cover children initially taken
into custody by a police officer (under section 305, 305.6, or 340) then delivered or
placed into the department’s temporary custody under section 306, subdivision (a)(1).
There is no practical difference between children taken by warrant and those taken
without a warrant, and so there is no reason to distinguish between them for ICWA
inquiry purposes. If the department decides to retain custody, both categories of children
require a detention hearing and are therefore at risk of an “emergency removal.” (§ 319).
And, because the department, not law enforcement, is charged with conducting the
ICWA investigation in a dependency proceeding, it simply makes more sense that section
224.2(b) would tie the initial inquiry to when the child is delivered to the department
under section 306, subdivision (a)(1) and not when they are initially taken from home
under section 340. We therefore conclude that section 224.2(b)’s reference to temporary
custody “pursuant to [s]ection 306” is better read as including children who, though
initially removed by protective custody warrant, are then delivered or placed into the
department’s custody pending a detention hearing.
Moreover, we are not persuaded by Robert F.’s justification for why the
Legislature would exclude from the inquiry described in section 224.2(b) children
20
removed by warrant. Robert F. reasons the Legislature did so because it “intended to
track federal guidelines for implementing ICWA,” which recommend initial inquiry of
extended family members in “emergency removal situations” only. (Robert F., supra, 90
Cal.App.5th at pp. 502-503.) The opinion concludes: “In short, in crafting the narrow
inquiry duty in section 224.2, subdivision (b) that applies to children removed [under
exigent circumstances] pursuant to section 306, the Legislature was simply creating a
duty that tracked federal guidelines for emergency removals.” (Id. at p. 503, quoting In re
Adrian L. (2022) 86 Cal.App.5th 342, 364 (conc. opn. of Kelley, J.).) This is also the
reason our dissenting colleague gives for agreeing with Robert F., reasoning that a
removal under section 306 is considered an “emergency removal” under ICWA, whereas
“a removal pursuant to an order issued under section 340 is not.” (Dis. opn. post, at p. 4.)
However, this argument misconstrues the definition of an emergency removal
under both the federal regulations and California law. Under both, the “emergency
removal” is not the social worker’s act of taking the child from home under exigent
circumstances. Rather, the emergency removal is the court’s order detaining the child at
the detention hearing, regardless of how the child came to be in the department’s custody
leading up to that hearing. (See 25 C.F.R. § 23.2 [an “emergency proceeding” is “any
court action that involves an emergency removal or emergency placement of an Indian
child”]; see also § 315 [“[i]n the case of an Indian child, the hearing pursuant to Section
319 shall be considered an emergency removal under [ICWA]”].) Thus, because A.B.
3176 imposed new requirements for the detention of Indian children and because both
21
categories of removals (by warrant and warrantless) require the court to hold a detention
hearing, we see no rational justification for interpreting section 224.2(b)’s reference to
section 306 as excluding children removed by warrant.
Moreover, the federal guidelines simply recommend that social workers interview
extended family members in emergency removal situations—they don’t recommend that
social workers do so only in such situations. (See U.S. Dept. of the Interior, Guidelines
for Implementing the Indian Child Welfare Act (Dec. 2016) at p. 28, available at
https://www.bia.gov/sites/default/files/dup/assets/bia/ois/pdf/idc2-056831.pdf
[recommending “[a]s a matter of general best practice in child welfare,” that social
workers interview extended family members in emergency removal situations both as
“possible emergency placements” and to determine whether the child may have Indian
ancestry].) But even if the guidelines did recommend that states apply a narrower initial
inquiry to children initially removed by warrant, ICWA expressly allows states to enact
higher standards than those imposed or recommended under federal law. (25 U.S.C.
§ 1921.)
This brings us to our second reason for declining to follow Robert F. Even if its
conclusion that section 306 excludes removals by protective custody warrant were
correct, we would still disagree with its conclusion that the duty described in section
224.2(b) does not apply once a child initially removed by warrant is removed from
parental custody at the disposition hearing.
22
First, section 224.2(b) does not state that the inquiry it describes applies “only if” a
child is taken into temporary custody under section 306. (See Adoption of Kelsey S.
(1992) 1 Cal.4th 816, 827 [it is a “cardinal rule” of statutory interpretation that “courts
may not add provisions to a statute”].) Section 224.2(b) does not contain the word only or
any other language suggesting an intent to limit the inquiry it describes. And where, as
here, where remedial legislation is involved, we must interpret the statute broadly to
achieve its purpose. (See In re I.F. (2022) 77 Cal.App.5th 152, 163 [the affirmative and
ongoing duty to inquire under California law serves a “remedial purpose” requiring us to
broadly construe state ICWA statutes]; see also Los Angeles County Metropolitan
Transportation Authority v. Alameda Produce Market, LLC (2011) 52 Cal.4th 1100, 1106
[courts must construe statutory provisions “in context, keeping in mind the statute’s
nature and obvious purposes”], italics added.)
Here, the obvious purpose of A.B. 3176 was to expand the scope of the initial
inquiry beyond the parents. Nothing in the text of that amendment or its legislative
history suggests an intent to apply the expanded inquiry in some cases but not others.
Indeed, A.B. 3176 itself states that it amends existing law to “revise the specific steps a
social worker . . . is required to take in making an inquiry of a child’s possible status as
an Indian child.” (Stats. 2018, ch. 833 (A.B. 3176), § 1.) Notably, the Legislature did not
say those steps apply only in the subset of dependency proceedings that begin with
warrantless removals. We think that if the Legislature intended to so limit the initial
inquiry, it would have said so.
23
Second, rule 5.481 requires social workers to make the inquiry described in
section 224.2(b) any time the department is “seeking a foster-care placement, . . .
termination of parental rights, preadoptive placement, or adoption.” (See rule 5.481(a)(1)
[directing the department, in such circumstances, to ask “extended family members [and]
others who have an interest in the child” about possible Indian ancestry].) Where, as here,
the rule is not inconsistent with the statute, we are required to follow it. (See R.R. v.
Superior Court (2009) 180 Cal.App.4th 185, 205 [“Rules of court have the force of law
and are as binding as procedural statutes as long as they are not inconsistent with
statutory or constitutional law”]; see also T.G., supra, 58 Cal.App.5th at p. 291
[concluding rule 5.481 is “entitled to judicial deference”].)
Third and perhaps most importantly, it simply doesn’t make sense to apply
different initial inquiries depending on how the child was initially removed from home,
as that procedural happenstance has nothing to do with a child’s ancestry.
For all these reasons, we conclude Robert F.’s interpretation of section 224.2(b) as
“crafting [a] narrow inquiry duty” that applies only to children initially taken into
temporary custody without a warrant contravenes the plain language and obvious purpose
of A.B. 3176. (Robert F., supra, 90 Cal.App.5th at p. 503.) We hold instead that the
Legislature enacted section 224.2(b) to impose on departments a broad duty to inquire
that applies regardless of how a child is initially removed from home.
24
The costs of broadening the inquiry are slight, as departments are already required
to identify and to contact extended family members for various reasons unrelated to
ICWA during dependency proceedings. (See S.S., supra, 90 Cal.App.5th at p. 702
[providing a list of examples of such provisions].) But the “payoff can be large for tribes,
whose children carry their cultures into the future.” (Id. at p. 705.) “The inquiry required
by the 2018 amendment is vital—literally: it can help keep cultures alive.” (Ibid.) And,
because tribal knowledge and experience tell us “there is a chance extended family
members may have otherwise-unavailable information the child has Indian ancestry,” the
importance of interviewing such individuals when they are readily available cannot be
overstated. (Ibid.)
We generally follow decisions of our own court, absent a compelling reason to
depart. (Opsal v. United Services Auto. Assn. (1991) 2 Cal.App.4th 1197, 1204; see also
Estate of Sapp (2019) 36 Cal.App.5th 86, 109.) However, there are several considerations
that compel us to depart from Robert F. First, that decision itself departed from earlier
decisions of our court holding the duty of initial inquiry in section 224.2(b) “applies in
every dependency proceeding.” (In re Ricky R. (2022) 82 Cal.App.5th 671, 678; see also
In re Benjamin M. (2021) 70 Cal.App.5th 735 (Benjamin M.) [same].) Second, Robert
F.’s interpretation is, in our view, based on a plain error of statutory construction that is
easily corrected, and the error if put into force would significantly undermine the purpose
of ICWA and the California statutes implementing ICWA. Third, the Robert F.
interpretation is of recent origin, meaning neither courts nor the public have yet placed
25
significant reliance on it. (See Sierra Club v. San Joaquin Local Agency Formation Com.
(1999) 21 Cal.4th 489, 504, 552 [“[s]tare decisis has added force when the legislature, in
the public sphere, and citizens, in the private realm, have acted in reliance on a previous
decision, for in this instance overruling the decision would dislodge settled rights and
expectations or require an extensive legislative response”], quoting Hilton v. South
Carolina Public Railways Comm’n (1991) 502 U.S. 197, 202.)
2. The department’s error was prejudicial
We conclude the department violated 224.2(b)’s clear mandate by failing to ask
the maternal uncle whether Delila may have any Indian ancestry. And, because he was
readily available throughout the proceeding and could have meaningful information about
Delila’s heritage, we conclude the violation prejudiced tribes and remand is necessary.
(Benjamin M., supra, 70 Cal.App.5th at p. 744; S.S., supra, 90 Cal.App.5th at p. 710.)
The analysis regarding the other relatives listed in the jurisdiction and disposition
report that the social worker tried to interview about placement is less straightforward.
While it’s clear the phone numbers the social worker had on file for them were not
correct, we cannot say the same about the addresses. Also, it is possible the individuals
would choose not to respond about placement but would respond to a question about
Delila’s ancestry. On remand, the juvenile court shall decide in the first instance whether
to order the department to send inquiries to those addresses or try to obtain additional
contact information about them from mother and the maternal uncle.
26
III
DISPOSITION
We conditionally reverse the order terminating parental rights and remand the
matter to the juvenile court with directions to comply with the inquiry provisions of
section 224.2. The juvenile court shall order that within 30 days of the remittitur, the
department perform its initial inquiry of Delila’s potential Indian ancestry consistent with
this opinion. If, after completing the initial inquiry, there is no reason to believe Delila is
an Indian child, the court shall reinstate its order terminating parental rights. If the inquiry
produces information substantiating Indian ancestry, the court shall vacate the order and
proceed in compliance with ICWA and related California law.
CERTIFIED FOR PUBLICATION
SLOUGH
J.
I concur:
RAPHAEL
J.
27
[In re Delila D., E080389]
MILLER, J., Dissenting
I respectfully dissent to the majority opinion finding that remand is necessary in
order for the Riverside County Department of Social Services (Department) to conduct
further inquiry of the relatives of minor, Delila D. as to whether she is an Indian child
pursuant to the guidelines of Welfare and Institutions Code 1 section 224.2, subdivision
(b). I follow this court’s previous opinions of In re Robert F. (2023) 90 Cal.App.5th 492(Robert F.) and In re Ja.O. (2023) 91 Cal.App.5th 672 (Ja.O.). Since Delila was taken
into custody pursuant to a protective warrant under section 340, the additional inquiry
requirements of section 224, subdivision (b), do not apply. I would affirm.
A protective custody removal warrant under section 340 was obtained by the
Department for Delila on January 24, 2021. Delila was detained and was placed in
protective custody in a foster home on January 25, 2021.
“There is no federal duty to inquire of extended family members.” (In re A.C.
(2021) 65 Cal.App.5th 1060, 1069.) The duty of inquiry under state law comes from
section 224.2, subdivision (b). 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
1All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
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.” The
plain language of section 224.2, subdivision (b), provides that if a child is placed into the
temporary custody of a county welfare department pursuant to section 306, there is a duty
to inquire of extended relatives about Indian ancestry.
Section 306 provides, “(a) Any social worker in a county welfare department, or in
an Indian tribe that has entered into an agreement pursuant to Section 10553.1 while
acting within the scope of his or her regular duties under the direction of the juvenile
court and pursuant to subdivision (b) of Section 272, may do all of the following: [¶]
(1) 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. [¶] (2) Take
into and maintain temporary custody of, without a warrant, a child who has been declared
a dependent child of the juvenile court under Section 300 or who the social worker has
reasonable cause to believe is a person described in subdivision (b) or (g) of Section 300,
and the social worker has reasonable cause to believe that the child has an immediate
need for medical care or is in immediate danger of physical or sexual abuse or the
physical environment poses an immediate threat to the child’s health or safety. [¶]
(b) 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.”
Section 340, subdivision (a), provides, “Whenever a petition has been filed in the
juvenile court alleging that a minor comes within Section 300 and praying for a hearing
2
on that petition, or whenever any subsequent petition has been filed praying for a hearing
in the matter of the minor and it appears to the court that the circumstances of his or her
home environment may endanger the health, person, or welfare of the minor, or whenever
a dependent minor has run away from his or her court-ordered placement, a protective
custody warrant may be issued immediately for the minor.”
“ ‘Under settled canons of statutory construction, in construing a statute we
ascertain the Legislature’s intent in order to effectuate the law’s purpose. [Citation.] We
must look to the statute’s words and give them their usual and ordinary meaning.
[Citation.] The statute’s plain meaning controls the court’s interpretation unless its words
are ambiguous.’ ” (People v. Arias (2008) 45 Cal.4th 169, 177.) “ ‘ “[I]f the statutory
language is not ambiguous, then we presume the Legislature meant what it said, and the
plain meaning of the language governs.” ’ ” (Melissa R. v. Superior Court (2012) 207
Cal.App.4th 816, 822.)
In Robert F., this court found that the plain language of section 224.2, subdivision
(b), controls and it only requires that the Department make an inquiry of extended
relatives if the child “is placed into the temporary custody of a county welfare department
pursuant to Section 306.” (Robert F., supra, 90 Cal.App.5th at p. 500.)
This court, in Robert F., followed the concurring opinion in In re Adrian L. (2022)
86 Cal.App.5th 342 (Adrian L.), a case involving a child being placed into protective
custody pursuant to section 340, subdivision (b). In his concurring opinion, Justice
3
Kelley 2, after extensive examination of the legislative history of section 224.2,
subdivision (b), and the plain language of the statute (Adrian L., at pp. 358-366),
concluded that “[p]lacing a child into ‘temporary custody of a county welfare department
pursuant to [section] 306’ is fundamentally different from taking a child into ‘protective
custody’ under section 340.” (Id. at p. 357.) “[A] removal under section 306 is
considered an ‘emergency removal’ under ICWA, but a removal pursuant to an order
issued under section 340 is not. This distinction illuminates why the legislative choice to
limit the scope of section 224.2, subdivision (b), to situations where a child is placed in
temporary custody of a county welfare agency pursuant to section 306 aligns it with
federal ICWA guidance.” As such, the requirement of section 224.2, subdivision (b) did
not apply to the case in which the child was removed under section 340 based on the
plain language of the statute. (Adrian L., at p. 357.) The Robert F. court adopted this
reasoning finding that the language of the statue was plain and controlled the
interpretation of section 224.2, subdivision (b). (Robert F., supra, 90 Cal.App.5th at p.
500.)
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, Delila was placed into the Department’s
custody pursuant to court order under section 340, subdivision (a), not through the
2 Judge Michael Kelley was sitting on assignment at the Second District Court of
Appeal when wrote his concurring opinion in In re Adrian L. Therefore, respectfully, I
use the title that is correct for his position at the time.
4
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).
The majority states that it cannot follow Robert F.’s reasoning because it disagrees
that section 306 is limited to circumstances where the child is removed without a warrant.
The majority argues that section 306 authorizes the Department to maintain a child in
temporary custody both when the child has been taken from home by a social worker or
police officer under exigent circumstances without a warrant under section 306,
subdivisions (a)(1), and (a)(2), and when the child has been taken from home by means
of a protective custody warrant issued under section 340, citing to section 306,
subdivision (a)(1)).
A similar argument was rejected in Ja.O., another opinion authored by this court.
In Ja.O., the mother argued that since section 306, subdivision (a)(1), authorizes a social
worker to take a child who has been delivered by a peace officer into temporary custody,
“it follows that whenever a peace officer takes a child into protective custody pursuant to
a warrant and then delivers the child to a social worker, the child is thereby taken into
temporary custody pursuant to section 306.” (Ja.O., supra, 91 Cal.App.5th at p. 680.)
This court rejected that argument finding that, “[s]ubdivisions (a) and (b) of section 340
provide for the issuance of protective custody warrants. Subdivision (c) of section 340
requires that ‘[a]ny child taken into protective custody pursuant to this section shall
immediately be delivered to the social worker,’ who must then conduct an investigation
‘pursuant to [s]ection 309.’ Thus, when a peace officer takes a child into protective
5
custody pursuant to a warrant and then complies with the statutory obligation to deliver
the child to the social worker, the social worker is taking custody of the child pursuant to
section 340, subdivision (c). [¶] But subdivision (a)(1) of section 306 has no application
when children are detained pursuant to a warrant under section 340, subdivision (b).
Section 306 expressly involves ‘temporary custody,’ which Article 7 defines, not
‘protective custody’ under section 340. Subdivision (a)(1) of section 306 thus applies to
situations in which an officer detains a child pursuant to one of the sections in Article 7
and the officer then delivers the child to the social worker. [¶] Moreover, if [the]
Mother’s interpretation of sections 306 and 340 were correct, then most of subdivision (c)
of section 340 would be surplusage.” (Ja.O., supra, 91 Cal.App.5th at p. 680.) The
majority is incorrect that all children are taken into temporary custody under section 306.
The majority also relies on the legislative history to insist that section 224.2,
subdivision (b), is to be interpreted broadly and that nothing in the text of that law or its
legislative history suggests an intent to apply the expanded inquiry in some cases but not
others. However, these arguments ignore that the Legislature specifically amended
section 224.2, subdivision (b), before its adoption, to add the language limiting it to
temporary custody pursuant to section 306. “ ‘In other words, the Legislature expressly
rejected having the inquiry prescribed in section 224.2, subdivision (b) apply in all cases
when a child is placed into temporary custody and limited such inquiry to cases where a
child is placed in temporary custody ‘pursuant to section 306.” ’ ” (Robert F., supra, 90
Cal.App.5th at p. 502.)
6
Further, this argument also ignores the language of section 224.2 that shows the
Legislature has restricted the requirement of inquiry to extended family members. This is
evidenced by the inclusion of section 224.2, subdivision (e), which provides for
interviewing extended family members but only when there is “reason to believe” a child
may be an Indian child. Here, the majority interprets the statutory language counter to
the plain language. I find the plain language of section 224.2, subdivision (b), and the
legislative history renders it inapplicable to the detention of Delila under section 340.
I see no reason to depart from the reasoning of our previous cases of Robert F. and
Ja.O. I would uphold the judgment.
MILLER
Acting P. J.
7