In re Andres R. ( 2023 )

Filed 8/23/23
See concurring opinion
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re ANDRES R., a Person Coming
Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES, E079972
Plaintiff and Respondent, (Super.Ct.No. RIJ2200411)
v. OPINION
A.R.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Dorothy McLaughlin,
Judge. Affirmed.
Neale B. Gold, under appointment by the Court of Appeal, for Defendant and
Appellant.
Minh C. Tran, County Counsel, Teresa K.B. Beecham and Julie K. Jarvi, Deputy
County Counsel, for Plaintiff and Respondent.
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts I and II of the Discussion.
1
A.R. (Father) appeals from the juvenile court’s dispositional order adjudging his
son a dependent of the court and removing the child from his custody. The court also
ordered reunification services for Father. On appeal, Father challenges the sufficiency of
the evidence supporting the court’s jurisdictional finding and the removal order. He also
argues that the Riverside County Department of Public Social Services (DPSS) failed to
comply with state law implementing the Indian Child Welfare Act of 1978 (ICWA)
(25 U.S.C. § 1901 et seq.). We affirm.
We partially publish this opinion in order to address some arguments concerning
our recent opinions in In re Robert F. (2023) 90 Cal.App.5th 492 (Robert F.), review
granted July 26, 2023, S279743, and In re Ja.O. (2023) 91 Cal.App.5th 672, 680 (Ja.O.),
review granted July 26, 2023, S280572. Both cases held that the expanded duty of initial
inquiry under subdivision (b) of Welfare and Institutions Code section 224.2 (§ 224.2(b))
applies only if the child was taken into temporary custody without a warrant. (Unlabeled
statutory citations are to the Welfare and Institutions Code.) We continue to agree with
that holding.
BACKGROUND
I. Detention
Father’s one-year-old son, Andres R., came to DPSS’s attention in May 2022,
when D.P. (Mother) called law enforcement to report domestic violence. Mother
reported that Father put her in a headlock and choked her. She freed herself from the
headlock and tried to call law enforcement, but Father grabbed her phone and threw it.
2
He then drove off. Mother put Andres and his two half-siblings in her car, which
contained only one car seat, and chased Father’s car. She called law enforcement during
that chase. Andres and his half-siblings witnessed the altercation but were not injured.1
Mother refused an emergency protective order.
The social worker went to the family’s hotel room the following day. The family
had been living at the hotel for two years. The front desk agent described Father as mean
and aggressive with staff. A hotel guest said that he heard screaming inside the family’s
room the night before and again that morning. The social worker heard voices and a
television inside the family’s room, but no one answered the door for over an hour, so the
social worker called law enforcement to conduct a welfare check. Father opened the door
when the officers knocked on it, but he attempted to close it when he saw them.
Although Father resisted the officers, they eventually arrested him. Mother closed the
hotel room door and refused to open it when the officers were dealing with Father.
Father yelled to Mother that she should not open the door or come outside. One of the
officers got a room key from hotel staff and tried to open the door, but the key did not
work. The social worker later discovered that the parents had removed the batteries from
the key reader on the door.
Mother came out of the hotel room after the officers took Father away. She told
the social worker that Father was upset the day before because paternal grandfather had
been killed. Father “got in her face,” put her in a headlock, and choked her. She had red
1 Mother is not a party to this appeal, nor are the fathers of Andres’s half-siblings.
3
marks on both sides of her neck. She allowed Father to return to the hotel room after the
incident because she loved him and he lived there. She described Father as a good man
and a good father, and she said that yesterday was the first time “he ha[d] ever done
anything like this.”
Andres’s half-sister, who was nearly six years old, told the social worker that
Father was mad and threw Mother across the bed. He also hit Mother with his fist, which
the child demonstrated by making a fist. Mother looked scared. The child could not
remember what anyone had said. She told the social worker that she had seen Father hit
Mother before. Andres’s half-brother, who was nearly four years old, seemed not to
understand the social worker’s questions and made no statements. Father refused to be
interviewed for the detention report.
The social worker also reported on the condition of the family’s hotel room and
included photographs with the detention report. Trash and other things were all over the
floor, and the room was very dark because the lights did not work. The social worker
tripped twice as she was trying to navigate the room and asked Mother to open the
curtains. The window had two large cracks in it, and the mirrored closet door was also
cracked. The parents had divided the room by hanging a tarp across it. There were piles
of boxes, bags, and other objects against every wall and a makeshift wall and a tall pile of
items behind the couch. A makeshift fan was hanging from the ceiling in the bathroom,
and the floor in there was also littered with trash, including acrylic paint bottles. The
counter in the kitchenette area was covered with items, including a blade within the
4
children’s reach. The social worker asked Mother to clean up the room as much as
possible so that the children did not trip or hurt themselves.
Mother told the social worker that she did not have any Indian ancestry.2 The
worker was unable to ask Father about Indian ancestry because of his refusal to be
interviewed.
DPSS applied for a protective custody warrant for the removal of the children
under section 340, and the court issued the warrant on the same day. DPSS also filed a
petition under section 300, subdivision (b)(1), alleging in relevant part that (1) the parents
neglected Andres’s health and safety because the family’s residence (the hotel room) was
“found in deplorable conditions,” (2) Father abused controlled substances, (3) the parents
engaged in ongoing acts of domestic violence in Andres’s presence, and (4) Father had a
criminal history, including an arrest and/or conviction for felony inflicting corporal injury
on a spouse.
At the detention hearing in June 2022, Mother requested that the court issue an
emergency protective order restraining Father. Her counsel stated that she did not agree
to one earlier because she did not understand the request, but Mother was now “more
than happy to do whatever” DPSS requested. Father objected to the request for an
emergency protective order. He argued that the order was unnecessary because (1) he
was in custody, and (2) the altercation was an isolated incident. Father’s counsel
2 “[B]ecause ICWA uses the term ‘Indian,’ we do the same for consistency, even
though we recognize that other terms, such as ‘Native American’ or ‘indigenous,’ are
preferred by many.” (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1
(Benjamin M.).)
5
indicated that Father might have Cherokee ancestry, and Father filed Judicial Council
form ICWA-020 (Parental Notification of Indian Status) indicating that Andres might be
eligible for membership in the Cherokee tribe.
The court detained Andres from the parents and issued a temporary restraining
order (TRO) protecting Mother from Father. Additionally, the court found that ICWA
may apply to Andres.
II. Jurisdiction and Disposition
DPSS again interviewed Andres’s half-sister and Mother in preparation for the
jurisdiction and disposition hearings. The half-sister reported that she saw Father “roll[]”
Mother “all over the bed” and choke Mother. Mother asserted that Father had never “laid
a hand on” her before the choking incident and that he was upset because paternal
grandfather had been murdered. She again asserted that Father had always been good to
her and the children.
Father’s counsel did not permit DPSS to interview him about the domestic
violence allegations. However, Father answered questions about his social history and
background. Father claimed to have Cherokee ancestry. Paternal grandmother reported
that neither she nor paternal grandfather had Indian ancestry. Father said that he would
do whatever was necessary to have Andres returned to his care. When the social worker
asked about placement, Father responded: “‘I don’t like that they’re trying to keep the
kids together. I feel like my son was taken from me because of her [Mother] and her
kids.’” He wanted DPSS to place Andres with paternal grandmother or paternal aunt.
6
Paternal grandmother was willing to care for Andres and his half-siblings, so DPSS
submitted a resource family referral on her behalf. After Father was released from
custody, he had supervised visitation with Andres twice per week.
DPSS gave Father referrals for housing assistance, random drug testing, substance
abuse treatment programs, parenting education, and domestic violence services at a
mental health agency. Father drug tested negative and provided proof of enrollment in
parenting education, anger management, and counseling services. He also provided a
letter from a substance abuse treatment program stating that he did not meet the medical
requirements for treatment.
At the jurisdiction hearing in July 2022, the parents requested that the court set the
matter for contest, so the court continued the hearing. With respect to the TRO, Mother
asked the court to allow the TRO to expire. The court granted that requested, and the
TRO expired that day.
Father continued to visit Andres twice per week for two hours and was engaging
in domestic violence services. He had taken three random drug tests with negative results
and failed to appear for a fourth test. DPSS was waiting for Father’s substance abuse and
parenting education providers to confirm his attendance at those programs.
DPSS contacted the Cherokee Nation and asked whether the parents, paternal
grandparents, or Andres were enrolled members of the tribe or eligible to enroll. The
tribe responded that Andres was not an Indian child in relation to the Cherokee Nation.
7
DPSS amended the petition to allege the family’s residence was “unsafe,” rather
than in deplorable conditions. The agency also amended the allegation about Father’s
criminal record to state that he had an arrest and/or conviction for misdemeanor inflicting
corporal injury on a spouse, rather than an arrest and/or conviction for the felony offense.
The contested jurisdiction and disposition hearing occurred in August 2022.
Father’s counsel argued that the court should find the allegations of unsafe living
conditions to be untrue because Father was not living at the hotel and went there only to
help with Andres or to pick up the child. He also argued that there was no evidence to
support the substance abuse allegation. Counsel noted that Father had pled to
misdemeanor inflicting corporal injury on a spouse, but he did not offer any specific
arguments with respect to the domestic violence allegations.
The court struck the substance abuse allegation. But it found true the allegations
that (1) the family’s residence was unsafe, (2) the parents were engaged in ongoing
domestic violence, and (3) Father had a misdemeanor conviction for spousal abuse. (The
court also found true that Mother had an extensive criminal history and neglected the
medical and educational needs of Andres and his half-siblings.) The court took
jurisdiction over Andres on the basis of the sustained allegations.
As for disposition, DPSS had placed Andres with paternal grandmother a few days
before the hearing. Father stated that he approved of Andres’s placement with paternal
grandmother and that he was “submitting on family reunification services.”
8
The court made the required findings under section 361, subdivision (c)(1), by
clear and convincing evidence and adjudged Andres a dependent of the court. It removed
Andres from the parents’ physical custody and ordered reunification services for both of
them. The court found that DPSS had made reasonable efforts to eliminate the need for
removal. The court also found that ICWA did not apply to Andres.
DISCUSSION
I. Sufficient Evidence to Support the Jurisdictional Finding
Father argues that there was insufficient evidence to support the court’s
jurisdictional finding under section 300, subdivision (b)(1). We disagree.
Section 300, subdivision (b)(1)(A), authorizes a juvenile court to take jurisdiction
over a child if the “child has suffered, or there is a substantial risk that the child will
suffer, serious physical harm or illness” as a result of the “failure or inability of the
child’s parent or guardian to adequately supervise or protect the child.” The statutory
definition requires DPSS to demonstrate three elements by a preponderance of the
evidence: “(1) neglectful conduct, failure, or inability by the parent; (2) causation; and
(3) serious physical harm or illness or a substantial risk of serious physical harm or
illness.” (In re L.W. (2019) 32 Cal.App.5th 840, 848.)
Section 300 generally requires proof that the child is subject to the defined risk of
harm at the time of the jurisdiction hearing, but the court need not wait until the child is
seriously injured to take jurisdiction. (In re N.M. (2011) 197 Cal.App.4th 159, 165; In re
Rocco M. (1991) 1 Cal.App.4th 814, 824.) “The court may consider past events in
9
deciding whether a child presently needs the court’s protection.” (In re N.M., supra, at
p. 165.) A parent’s “‘[p]ast conduct may be probative of current conditions’ if there is
reason to believe that the conduct will continue.” (In re S.O. (2002) 103 Cal.App.4th
453, 461.) Domestic violence between a child’s parents may support a jurisdictional
finding “‘if there is evidence that the violence is ongoing or likely to continue and that it
directly harmed the child physically or placed the child at risk of physical harm.’” (In re
L.O. (2021) 67 Cal.App.5th 227, 239.)
A challenge to the sufficiency of the evidence supporting a jurisdictional finding
requires us to determine if substantial evidence, contradicted or not, supports it. (In re
I.J. (2013) 56 Cal.4th 766, 773.) We draw all reasonable inferences from the evidence to
support the finding and review the record in the light most favorable to the court’s
determination. (Ibid.) We do not reweigh the evidence or exercise independent
judgment but merely determine whether the evidence is sufficient to support the finding.
(Ibid.)
As a preliminary matter, DPSS urges us to reject Father’s challenge because he
does not challenge the jurisdictional findings based on Mother’s conduct. When the
juvenile court takes jurisdiction on multiple grounds, we may affirm the court’s finding
of jurisdiction if any single ground is supported by substantial evidence. (In re I.J.,
supra, 56 Cal.4th at p. 773.) We “‘need not consider whether any or all of the other
alleged statutory grounds for jurisdiction are supported by the evidence.” (Ibid.)
However, we will address the merits of a challenge to any jurisdictional finding that
10
forms the basis for dispositional orders also challenged on appeal. (See In re D.P. (2023)
14 Cal.5th 266, 278.) That is the case here: Father challenges the dispositional order
removing Andres from his custody, which is based on the sustained allegations of
domestic violence and unsafe living conditions. We therefore reject DPSS’s argument.
We also reject DPSS’s argument that Father forfeited his substantial evidence
challenge by failing to specifically contest the allegations of domestic violence. At the
jurisdiction hearing, Father’s counsel opened by stating that Father’s “general denials
continue.” Counsel made specific arguments about the allegations of unsafe living
conditions and the substance abuse allegation. Counsel then stated that Father was
“submit[ting] on jurisdiction . . . with those arguments.” But none of that forfeited
Father’s substantial evidence challenge. “[W]hen a parent submits or acquiesces on a
particular record, ‘the court must nevertheless weigh evidence, make appropriate
evidentiary findings and apply relevant law to determine whether the case has been
proved.’” (In re Javier G. (2006) 137 Cal.App.4th 453, 464.) And “[e]ven if the parent
does not contest the state of the evidence, he or she preserves the right to challenge it as
insufficient.” (Ibid.) Father thus preserved his substantial evidence challenge.
As for the merits of the challenge, the record contains substantial evidence
supporting the court’s jurisdictional finding. According to Mother, Father choked her,
put her in a headlock, and threw her phone. The social worker observed red marks on
Mother’s neck the day after the altercation. Andres’s half-sister reported that Father
threw Mother across the bed and hit her with his fist. The half-sister had seen Father hit
11
Mother on other occasions. Although Father had engaged in some domestic violence
services by the time of the jurisdiction hearing, there was no information about his
progress in those services. And Father refused to discuss the domestic violence
allegations with DPSS. There was thus no evidence about what had caused Father to be
violent from his perspective, whether he had any meaningful insights about the violence,
or whether he had effectively resolved the issue. Instead, Father demonstrated a lack of
insight about the issue when DPSS asked about placement—he said that he felt Andres
was taken from him because of Mother and her children. Moreover, the parents appeared
to be together still. Mother allowed Father to return to the hotel room just after the
altercation. She eventually asked the court for a TRO but then asked the court to let the
TRO expire. At the time of the jurisdiction hearing, both parents were still using the
hotel room as their mailing address. On this record, the court could reasonably infer that
domestic violence between the parents was likely to continue in the absence of court
supervision.
The court could also reasonably infer that the violence between the parents placed
Andres at substantial risk of serious physical harm. He and his half-siblings were present
during the altercation and could have easily been injured when Father threw Mother
across the bed and threw her cell phone. (In re Heather A. (1996) 52 Cal.App.4th 183,
194 [children were at risk of physical harm from domestic violence “since, for example,
they could . . . be accidentally hit by a thrown object, by a fist, arm, foot or leg, or by [the
victim] falling against them”].) Andres also could have been injured when Mother put
12
the children in the car and chased after Father. The court did not need to wait until
Andres was actually injured to take steps to protect him.
In sum, substantial evidence supports the court’s jurisdictional finding based on
domestic violence between the parents. We need not consider whether the evidence of
unsafe living conditions also supported jurisdiction.3 (See In re D.P., supra, 14 Cal.5th
at pp. 283-284 [validity of one jurisdictional finding against a parent renders moot any
challenges to other jurisdictional findings against the same parent].)
II. Sufficient Evidence to Support the Removal Order
Father also challenges the sufficiency of the evidence to support the order
removing Andres from his custody. The argument lacks merit.
To order a child removed from their parents’ physical custody, the juvenile court
must find by clear and convincing evidence that (1) there “would be a substantial danger
to the physical health, safety, protection, or physical or emotional well-being” of the child
in the parents’ home, and (2) “there are no reasonable means by which the [child’s]
physical health can be protected without” removal. (§ 361, subd. (c)(1).) We review
those findings for substantial evidence (In re R.T. (2017) 3 Cal.5th 622, 633), taking into
account the level of confidence that the “clear and convincing” standard demands
(Conservatorship of O.B. (2020) 9 Cal.5th 989, 995). The question before us “is whether
3 In any event, Father’s only argument with respect to the living conditions is that
the parents were no longer living in the hotel room. Father does not cite to the record for
that assertion, and our review of the record discloses no support for the claim. As noted,
the parents were still using the hotel room as their mailing address. If they were living
elsewhere or their living conditions had changed, the record does not reflect that.
13
the record as a whole contains substantial evidence from which a reasonable fact finder
could have found it highly probable that the fact was true.” (Id. at pp. 995-996.) We
“view the record in the light most favorable to the prevailing party below and give due
deference to how the trier of fact may have evaluated the credibility of witnesses,
resolved conflicts in the evidence, and drawn reasonable inferences from the evidence.”
(Id. at. p. 996.)
DPSS again urges us to conclude that Father forfeited his substantial evidence
challenge. The agency reasons that Father forfeited the issue by “submitting on family
reunification services.” DPSS relies on case law holding that a parent forfeited her
challenge to removal by submitting on the social worker’s recommendation to remove the
children. (In re Richard K. (1994) 25 Cal.App.4th 580, 587-591.) We are not persuaded.
Father did not say that he was submitting on the social worker’s recommendation (which
was removal), nor did he say that he was submitting on removal. His submission could
reasonably be construed as an agreement to participate in reunification services only if
the court removed Andres from his custody. We also note that in general substantial
evidence challenges are not forfeited by failure to raise them in the trial court. (In re R.V.
(2012) 208 Cal.App.4th 837, 848; In re Javier G., supra, 137 Cal.App.4th at p. 464.) In
the absence of an unequivocal statement that Father was submitting on removal or on
DPSS’s recommendation, we decline to find that Father forfeited his challenge to the
removal order.
14
On the merits, however, Father’s substantial evidence challenge fails. He argues
that there was insufficient evidence of a substantial danger to Andres because Father was
engaged in services and his attack on Mother was a one-time event. The argument
ignores all of the contrary evidence and reasonable inferences supporting the removal
order. Andres’s half-sister had seen Father hit Mother before the most recent incident.
Father attacked Mother in Andres’s presence. Andres was only one year old and likely
would have been unable to protect himself from any unintended consequences of such an
attack, like an object thrown in his direction. Further, Father’s mere participation in
services did not show that there was no danger to Andres. There was no evidence that
Father was benefitting from the domestic violence services, given the lack of information
about his progress and his failure to discuss the issue with DPSS. And the court could
reasonably infer that domestic violence remained a danger, because the parents were still
in a relationship and living together. They were using the same hotel address for
purposes of this case, and Mother asked the court to let the TRO expire. On the whole,
substantial evidence supports the conclusion that Father’s violence against Mother posed
a substantial danger to Andres’s physical or emotional well-being.
Substantial evidence also supports the conclusion that there were no reasonable
means to protect Andres short of removal. Father proposes alternative means that he
claims would have sufficiently protected Andres. He suggests that the court could have
placed Andres in his custody on condition that he live with Andres at paternal
grandmother’s home, or the court could have allowed Mother to retain custody. Father
15
also suggests that the court could have issued a mutual stay-away order and ordered
unannounced home visits by DPSS.
But the record supports a reasonable inference that alternative means would not
have sufficiently protected Andres. First, section 361 requires the court to consider two
options as reasonable means to protect the child: (1) removing an offending parent from
the home, and (2) allowing a nonoffending parent to retain physical custody, so long as
that parent presents a plan showing that they can protect the child from future harm.
(§ 361, subd. (c)(1)(A)-(B).) Neither parent was nonoffending in this case, and even if
they were, neither parent presented a plan about how they would protect Andres from
future harm.
Second, placing Andres in Father’s custody would have required Father to
cooperate fully with DPSS, and Father overlooks the evidence that he and Mother were
not fully cooperative with DPSS. When the social worker first visited the family home,
the parents refused to open the door for over an hour. They took the batteries out of the
key reader on the door so that the social worker and officers could not enter with the key
provided by hotel staff. Father eventually opened the door and resisted the officers’
attempts to get him out of the room. Once they did so, Father yelled for Mother to
remain in the room. She only came out after the officers took Father away. Father
refused to be interviewed at all for the detention report, and he refused to answer
questions about the primary issue in this case—domestic violence—for the jurisdiction
and disposition report.
16
Third, without any information from Father about the domestic violence or from
his service provider about Father’s progress, the court could not know whether the same
issue would arise even if Father were living apart from Mother. Under all of these
circumstances, the court reasonably concluded that there were no reasonable means to
protect Andres short of removal.
Father also argues that the record does not contain sufficient evidence that DPSS
made reasonable efforts to prevent or eliminate the need for removal. (§ 361, subd. (e)
[“The court shall make a determination as to whether reasonable efforts were made to
prevent or to eliminate the need for removal of the minor from his or her home . . .”].) In
particular, he claims that DPSS failed to adequately investigate or propose alternatives to
removal like those he proposes on appeal.
Section 361 requires reasonable efforts, not perfect efforts, and substantial
evidence shows that DPSS’s efforts were reasonable here. (In re H.E. (2008) 169
Cal.App.4th 710, 725 [“reasonable efforts, like reasonable services, need only be
reasonable under the circumstances, not perfect”].) After the detention hearing, DPSS
provided Father with referrals for housing assistance, substance abuse treatment, drug
testing, parenting education, and domestic violence services. The agency also facilitated
visitation between Father and Andres. But given Father’s refusal to address the domestic
violence with DPSS, the suggestion that the agency should have done more to investigate
placement in his home is not reasonable. The court therefore did not err by finding that
DPSS made reasonable efforts.
17
For all of these reasons, we conclude that substantial evidence supports the court’s
removal order.
III. No ICWA Error
Father argues that DPSS failed to comply with its duty under state law to ask
extended family members whether Andres might be an Indian child within the meaning
of ICWA. He further argues that the error was prejudicial, so we must conditionally
reverse the dispositional order and remand for DPSS to conduct a proper inquiry. We
disagree.
DPSS and the juvenile court have an “‘affirmative and continuing duty to inquire’
whether a child in a dependency proceeding ‘is or may be an Indian child.’” (In re Ricky
R. (2022) 82 Cal.App.5th 671, 678 (Ricky R.), quoting § 224.2, subd. (a).) “The duty to
inquire consists of two phases—the duty of initial inquiry and the duty of further
inquiry.” (Ibid.) Father’s argument concerns the duty of initial inquiry.
“The duty of initial inquiry applies in every dependency proceeding.”
(Ricky R., supra, 82 Cal.App.5th at p. 678.) DPSS’s “duty to inquire begins with the
initial contact, including, but not limited to, asking the party reporting child abuse or
neglect whether the party has any information that the child may be an Indian child.”
(§ 224.2, subd. (a).) In addition, “[f]ederal regulations require state courts to ask each
participant ‘at the commencement’ of a child custody proceeding ‘whether the participant
knows or has reason to know that the child is an Indian child.’ (25 C.F.R. § 23.107(a)
(2022).)” (Ricky R., at pp. 678-679.) Similarly, “[s]tate law requires the court to pursue
18
an inquiry ‘[a]t the first appearance in court of each party’ by asking ‘each participant
present in the hearing whether the participant knows or has reason to know that the child
is an Indian child.’ (§ 224.2, subd. (c).)” (Id. at p. 679.)
In some cases, California law requires DPSS to do more as part of its initial
inquiry. Specifically, under section 224.2(b), “[i]f a child is placed into the temporary
custody of a county welfare department pursuant to section 306,” DPSS must ask
“extended family members” about the child’s Indian status.4
Section 306 authorizes a social worker to take a child into temporary custody
“without a warrant” in emergency situations, namely, when “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.” (§ 306, subd. (a)(2).) Peace officers
may also take children into temporary custody without a warrant when similar exigent
circumstances exist (§§ 305, 305.6, subd. (a)), and section 306 also permits the social
worker to “[r]eceive and maintain, pending investigation,” temporary custody of a child
“who has been delivered by a peace officer.” (§ 306, subd. (a)(1) (§ 306(a)(1)).) By
contrast, section 340 provides for the issuance of protective custody warrants, and on a
4 The provision states in full: “If a child is placed into the temporary custody of a
county welfare department pursuant to [s]ection 306 or county probation department
pursuant to [s]ection 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 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.” (§ 224.2(b).)
19
weaker showing than is required for a warrantless detention under section 306. (§ 340,
subd. (b)(2); Robert F., supra, 90 Cal.App.5th at pp. 500-501; In re Adrian L. (2022) 86
Cal.App.5th 342, 357 (conc. opn. of Kelley, J.) (Adrian L.).) Section 340 also “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.’” (Ja.O., supra, 91 Cal.App.5th at p. 680.)
Father contends that DPSS was required to ask various extended family members
about Andres’s Indian status as part of the agency’s initial inquiry. But DPSS took
Andres into protective custody pursuant to a warrant. The child was not placed into
temporary custody pursuant to section 306, so the expanded duty of initial inquiry under
section 224.2(b) did not apply. (Robert F., supra, 90 Cal.App.5th at pp. 497-498, 500,
504.) For that reason, Father has not shown ICWA-related error by either DPSS or the
juvenile court.
That conclusion follows from a straightforward application of Robert F., in which
this court held that the expanded duty of initial inquiry under section 224.2(b) applies
only if the child was placed into temporary custody without a warrant. (Robert F., supra,
90 Cal.App.5th at pp. 497, 504.) In re Delila D. (2023) 93 Cal.App.5th 953 (Delila D.)
recently declined to follow Robert F. and held that “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.” (Id. at p. 962.) For the reasons given below,
20
we do not find Delila D.’s analysis persuasive. Nor are we persuaded by the additional
arguments in the concurring opinion.
A. Section 306(a)(1) Does Not Apply to Removals Pursuant to Warrants
Delila D. claims that when a peace officer takes a child into protective custody
pursuant to a warrant and delivers the child to a social worker (§ 340, subds. (b)-(c)), the
social worker receives and maintains temporary custody of the child under section
306(a)(1), so the expanded duty of initial inquiry under section 224.2(b) applies. (Delila
D., supra, 93 Cal.App.5th at pp. 971-972.) We discussed that claim in Ja.O. and rejected
it for various reasons, including that it would render most of subdivision (c) of section
340 surplusage. (Ja.O., supra, 91 Cal.App.5th at pp. 679-680; see People v. Valencia
(2017) 3 Cal.5th 347, 357 [“‘[a] construction making some words surplusage is to be
avoided’”].) The majority opinion in Delila D. never cites Ja.O. and does not address its
analysis.
Moreover, Delila D. subtly misdescribes and consequently misinterprets the
language of section 306(a)(1). According to Delila D., section 306(a)(1) “authorizes the
social worker to ‘receive’ the child and ‘maintain’ them in temporary custody.” (Delila
D., supra, 93 Cal.App.5th at p. 971.) But that is not what section 306(a)(1) says. Rather,
section 306(a)(1) authorizes the social worker to “[r]eceive and maintain, pending
investigation, temporary custody of a child who is described in Section 300, and who has
been delivered by a peace officer.” (Italics added.) Thus, under the plain language of
section 306(a)(1), “temporary custody” is what the social worker receives and maintains
21
but does not initiate. Consequently, the child must already be in temporary custody
before the child is delivered by the peace officer.
The only statutes that authorize peace officers to take children into “temporary
custody” are sections 305, 305.6, and 625, all of which concern taking children into
“temporary custody” without a warrant. (§ 305 [“Any peace officer may, without a
warrant, take into temporary custody a minor” under specified circumstances]; § 305.6
[“Any peace officer may, without a warrant, take into temporary custody a child” under
specified circumstances]; § 625 [“A peace officer may, without a warrant, take into
temporary custody a minor” under specified circumstances].) In contrast, section 340
concerns the issuance of a “protective custody warrant,” pursuant to which a child is
taken into “protective custody.” (§ 340, subds. (a)-(c).)
Delila D. does not articulate any reason to think that the Legislature’s decision to
use different terms—“temporary custody” and “protective custody”—in those statutory
provisions was arbitrary or meaningless. It was not. When section 306(a)(1) was
originally enacted in 1971, it was codified as section 625.5. (Stats. 1971, ch. 641, § 4;
see Notes, Deering’s Ann. Welf. & Inst. Code, foll. § 306 [noting that § 306 is derived
from former § 625.5].) Protective custody warrants did not exist in 1971. Instead, at that
time the juvenile court law provided for the issuance of arrest warrants for dependent
minors. (Former § 663; Stats. 1963, ch. 1761, § 4.) But then-section 625.5 did not say
anything about social workers receiving children who were arrested pursuant to warrants.
Rather, then-section 625.5 provided, just as section 306(a)(1) provides now, that the
22
social worker could “receive and maintain, pending court hearing, temporary custody of a
minor under 18 who is described in Section 600, and who has been delivered by the
probation officer.”5 If the Legislature had wanted then-section 625.5 to apply to children
arrested pursuant to warrants in addition to children taken into “temporary custody”
without warrants, it would have said so. The relevant statutory language, now codified in
section 306(a)(1), has been reenacted without substantive change ever since, always
referring to “temporary custody” alone. (See Stats. 1976, ch. 1068, §§ 7, 25 [repealing
former § 625.5 and reenacting its provisions as § 306].) There is no reason to believe that
the meaning of “temporary custody” has changed.
Moreover, there is a fundamental difference between being arrested pursuant to a
warrant and being taken into temporary custody without a warrant: An individual
arrested pursuant to a warrant must be brought before a court (Pen. Code, §§ 814, 848),
but both in 1971 and today, a child taken into temporary custody without a warrant may
be released without first having been brought before a court (former §§ 514 [Stats. 1971,
ch. 641, § 2], 626 [Stats. 1963, ch. 1486, § 1], 628 [Stats. 1971, ch. 1729, § 2]; §§ 307,
309). Thus, a warrantless detention is temporary in a way that an arrest pursuant to a
5 At the time, the same set of statutes governed delinquency and dependency cases.
(In re Malinda S. (1990) 51 Cal.3d 368, 380, fn. 11.) Former section 600 described
children within the jurisdiction of the dependency court. (Stats. 1971, ch. 1729, § 1.) In
addition, at that time another statute provided that a peace officer who took a child into
temporary custody must either release the child (with or without a notice to appear before
the probation officer) or deliver the child to the probation officer. (Former § 626; Stats.
1963, ch. 1486, § 1.) That appears to be why former section 625.5 referred to temporary
custody of a child delivered by a “probation officer” even though former section 625
authorized a “peace officer” (not a “probation officer”) to take a child into temporary
custody in the first place (Stats. 1971, ch. 1730, §§ 1, 2).
23
warrant is not—a child taken into custody without a warrant can be released at any time,
but someone arrested pursuant to a warrant must be held until they are brought before a
court (or the time to do so expires (Pen. Code, § 825)). Accordingly, it made sense for
the Legislature in 1971 to use the term “temporary custody” in then-section 625.5 (now §
306(a)(1)) to refer only to the “temporary custody” (i.e., warrantless removal) authorized
by then-section 625 (Stats. 1971, ch. 1730, §§ 1, 2) (now § 305).
When the Legislature amended section 340 in 1987 to replace arrest warrants with
“protective custody” warrants, the Legislature did not amend section 306(a)(1) to include
“protective custody.” (Stats. 1987, ch. 1485, §§ 13, 29.) Rather, section 306(a)(1)
continued and continues to refer only to “temporary custody,” that is, to the warrantless
removals authorized and referred to as “temporary custody” elsewhere in the code. But
in 2002, when the Legislature enacted then-section 305.5 (now § 305.6) to create a new
basis for peace officers to remove children without a warrant, the Legislature used the
term “temporary custody,” thereby bringing such removals within the scope of section
306(a)(1). (Stats. 2002, ch. 920, § 2.)
The history of those enactments confirms that the Legislature chooses its words
with care. When the Legislature authorized law enforcement to conduct warrantless,
predetention removals in child welfare cases, it referred to them as “temporary custody,”
distinguishing them from arrest pursuant to arrest warrants. When the Legislature
authorized child welfare agencies to receive children detained by law enforcement, it
used the term “temporary custody” and said nothing about arrest, thus limiting the
24
authorization to warrantless removals. (Children arrested pursuant to arrest warrants
would presumably be brought before a court, which would then make orders concerning
their custody.) When the Legislature created a new and different warrant process, it used
the term “protective custody,” thus distinguishing it from arrest but also distinguishing it
from the “temporary custody” of warrantless removal. But when the Legislature later
created a new and different basis for warrantless removal, it again used the term
“temporary custody,” bringing the new form of warrantless removal within the scope of
the prior authorization for social workers to receive and maintain temporary custody of
children detained by law enforcement without a warrant.
For all of these reasons, we conclude that Delila D.’s claim that section 306(a)(1)
applies to removals pursuant to warrants is inconsistent with the plain language of the
statute. Section 306(a)(1) applies and has always applied only to the “temporary
custody” of a warrantless predetention removal, not to the “protective custody” of
removal pursuant to a protective custody warrant.
In addition, we conclude that Delila D.’s reasoning in support of its position is
unsound. Delila D. appears to reason that section 306(a)(1) must encompass removals
pursuant to protective custody warrants because otherwise there would be no statutory
directive for detention hearings for children removed pursuant to warrants. (Delila D.,
supra, 93 Cal.App.5th at p. 972.) We find the argument unpersuasive because (1) if it
were sound, then it would be just as problematic for Delila D.’s interpretation as for
25
Robert F.’s, but also (2) it is unsound because there is an independent statutory
requirement for detention hearings for children removed pursuant to warrants.
Delila D.’s argument is based on section 315, which states that “[i]f 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; see Delila D.,
supra, 93 Cal.App.5th at p. 972.) Sections 315 and 306 are in article 7 of the juvenile
court law, but section 340 (providing for protective custody warrants) is in article 8.
(Welf. & Inst. Code, div. 2, pt. 1, ch. 2, arts. 7, 8.) Thus, even under Delila D.’s
interpretation of the statutes, a child who is removed pursuant to a warrant is taken into
custody under article 8 (not article 7) and is then maintained in custody under article 7.
(Delila D., at p. 971 [“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)”].) Consequently, Delila D.’s interpretation gives rise to the same
putative problem as Robert F.’s—section 315 does not require detention hearings for
children taken into custody pursuant to protective custody warrants, because such
children are not taken into custody under article 7.
But there actually is no problem, because section 315 is not the only statutory
directive to hold a detention hearing. Section 290.1 requires a detention hearing
regardless of whether the child is taken into custody under article 7 or article 8. Section
290.1 provides that if the “social worker determines that the child shall be retained in
26
custody,” then the worker shall immediately file a dependency petition with the clerk of
the juvenile court, “who shall set the matter for hearing on the detention hearing
calendar.” The concurring opinion states that section 290.1 is not a directive to hold a
detention hearing, but it does not address that mandatory language requiring the matter to
be set for a detention hearing. (Conc. opn., post, at pp. 4-5.)
In sum, we are not persuaded by Delila D.’s claim that section 306(a)(1) applies to
children taken into custody pursuant to protective custody warrants. Delila D. fails to
address Ja.O.’s arguments against that claim, and Delila D.’s own argument in support of
the claim is, in our view, unsound.
B. The Duty Imposed by Section 224.2(b) Is Limited to Warrantless Removals
Delila D. concludes that even if section 306 concerns only warrantless removals,
the duty of inquiry under section 224.2(b) is not limited to such removals because 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.” (Delila D., supra, 93 Cal.App.5th at p. 974.)
Delila D. further asserts that, in addition to not containing the word “only,” section
224.2(b) does not contain “any other language suggesting an intent to limit the inquiry it
describes” (Delila D., at p. 974), even though section 224.2(b) begins with the words “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.” Thus, according
to Delila D., when the Legislature said “If the following condition is met, the social
worker has a duty of inquiry,” what the Legislature meant was “If the following condition
27
is met, the social worker has a duty of inquiry, but if the condition is not met, the social
worker still has the same duty of inquiry anyway.”
That interpretation is not reasonable. The first clause of the provision—if a child
is placed into the temporary custody of the child welfare department pursuant to section
306 or the probation department pursuant to section 307—sets forth the condition that
triggers the duty described in the remainder of the provision. Section 224.2(b) does not
describe any other conditions that trigger that duty. (Nor do any other parts of the
statutory scheme describe another condition that triggers it.) Thus, the duty is triggered
only by the stated condition, because the Legislature did not articulate any others. No
other commonsense reading of the provision is possible. (Busker v. Wabtec Corp. (2021)
11 Cal.5th 1147, 1157 [we must give statutory language “its plain and commonsense
meaning”].)
Other parts of the statutory scheme illustrate the point: The duty of further inquiry
is triggered “[i]f the court, social worker, or probation officer has reason to believe that
an Indian child is involved in a proceeding.” (§ 224.2, subd. (e).) The word “only” does
not appear in subdivision (e) of section 224.2, but the provision cannot be reasonably
interpreted as requiring further inquiry in every case, regardless of whether there is
reason to believe that an Indian child is involved. Likewise, the duty to provide notice to
the tribes is triggered “[i]f the court, a social worker, or probation officer knows or has
reason to know . . . that an Indian child is involved.” (§ 224.3, subd. (a).) Subdivision
(a) of section 224.3 does not contain the word “only,” but the provision cannot be
28
reasonably interpreted as requiring notice in every case, regardless of whether there is
reason to know that an Indian child is involved.
Like the provisions regarding further inquiry and notice, the first sentence of
section 224.2(b) specifies the circumstances triggering the duty described in the
remainder of the provision. Section 224.2(b) cannot reasonably be interpreted as
requiring inquiry of extended family members regardless of whether the child was placed
into temporary custody under section 306 or 307.
That said, section 224.2(b) does not mean that social workers are allowed to ask
extended family members about Indian ancestry only if the child was placed into
temporary custody under section 306 or 307. Rather, social workers are allowed to
inquire of extended family whenever they wish. Moreover, the “affirmative and
continuing duty to inquire” under subdivision (a) of section 224.2 will sometimes require
inquiry of at least some extended family members, depending upon the circumstances of
the case. (Robert F., supra, 90 Cal.App.5th at pp. 503-504.) In both of those ways, the
introductory clause in the first sentence of section 224.2(b) does not limit extended
family member inquiry at all—extended family member inquiry is always permitted and
sometimes independently required. The introductory clause in section 224.2(b) means
only that section 224.2(b) itself does not require inquiry of all available extended family
members in every case.
Delila D. does not explain what purpose the first sentence of section 224.2(b)
serves if it does not specify the circumstances in which the expanded duty of initial
29
inquiry described in the second sentence is triggered. It is not there to impose the duty of
initial inquiry on child welfare departments: The Legislature already imposed that duty
when it codified the “affirmative and continuing duty to inquire” in 2006. (Former
§ 224.3, subd. (a); Stats. 2006, ch. 838, § 32; In re W.B. (2012) 55 Cal.4th 30, 53.) Nor is
it there to specify when the duty of initial inquiry arises: Subdivision (a) of section 224.2
already provides that it “begins with the initial contact.”
Moreover, it is “not appropriate to treat the second sentence of section[ 224.2(b)],
as a generic definition of ‘inquiry’ that the Legislature intended to govern all ICWA
inquiries, not just ones referenced in the immediately preceding sentence.” (Adrian L.,
supra, 86 Cal.App.5th at pp. 367-368, fn. omitted (conc. opn. of Kelley, J.).) The
statutory scheme “includes a set of generally applicable definitions.” (Id. at p. 368, citing
§ 224.1.) If the Legislature had intended the second sentence of section 224.2(b) to
prescribe what must be done for every inquiry, then “one would expect that the term
would have been defined as such in the generally applicable definitions.” (Ibid.) And if
the Legislature did not believe that “inquiry” warranted treatment as a formally defined
term but still wanted comprehensive extended family member inquiry to be universally
required, then the Legislature would have included it “in one of the inquiry provisions
that applies in every case (e.g., § 224.2, subd. (a)), rather than placing it immediately
following the narrow mandate of the first sentence” of section 224.2(b). (Adrian L., at
p. 368 (conc. opn. of Kelley, J.).)
30
Delila D. effectively deletes the conditional language in section 224.2(b) because
the provision was enacted as part of remedial legislation, Assembly Bill No. 3176 (2017-
2018 Reg. Sess.) (Assembly Bill 3176), and we should construe such legislation broadly
to achieve its purpose. (Delila D., supra, 93 Cal.App.5th at p. 974.) But the principle
that we should construe remedial legislation broadly is not a license to ignore the plain
language of the statute. “Even where legislation is remedial in character and subject to a
liberal construction to effectuate its purpose, the qualifying requirements of the
legislation must still be enforced.” (Messenger Courier Assn. of Americas v. California
Unemployment Ins. Appeals Bd. (2009) 175 Cal.App.4th 1074, 1093.)
Delila D. also cites the Legislative Counsel’s digest of Assembly Bill 3176 for the
proposition that the “obvious purpose” of the bill was to expand the scope of the initial
inquiry beyond the parents. (Delila D., supra, 93 Cal.App.5th at p. 974.) The digest does
not support Delila D.’s interpretation of section 224.2(b). The digest stated that
Assembly Bill 3176 “would revise the specific steps a social worker, probation officer, or
court is required to take in making an inquiry of a child’s possible status as an Indian
child.” (Stats. 2018, ch. 833.) Consistent with that description, Assembly Bill 3176
revised the duty of inquiry under California law in a number of ways. The bill added the
requirement that “[a]t the first appearance in court of each party, the court shall ask each
participant present in the hearing” about the child’s potential Indian ancestry. (Stats.
2018, ch. 833, § 5; § 224.2, subd. (c).) It also added the duty of the court and the social
worker to “make further inquiry” if there is reason to believe that an Indian child is
31
involved, and it prescribed a number of steps for that further inquiry. (Stats. 2018, ch.
833, § 5; § 224.2, subd. (e).) And it added the provision at issue here, the duty of the
child welfare department to inquire of extended family members and others if the child is
placed into the department’s temporary custody pursuant to section 306. (Stats. 2018, ch.
833, § 5; § 224.2(b).) It is true that all of those amendments revised (and expanded) the
steps that the social worker or court must take in making an ICWA inquiry. But it is
unclear why that means we should ignore the limiting language of section 224.2(b).
Delila D. also relies on certain statements in the California ICWA Compliance
Task Force, Report to the California Attorney General’s Bureau of Children’s Justice.
(Delila D., supra, 93 Cal.App.5th at p. 967.) The task force report does not shed light on
the Legislature’s intent with respect to section 224.2(b), because there is no evidence in
the legislative history that the Legislature considered the task force report when enacting
Assembly Bill 3176. That point was made and extensively documented in In re Ezequiel
G. (2022) 81 Cal.App.5th 984, 1011-1012 and reiterated in the concurring opinion in
Adrian L., supra, 86 Cal.App.5th at page 370 (conc. opn. of Kelley, J.), but Delila D.
never addresses it.
For all of these reasons, we continue to agree with Robert F. and Ja.O. that the
expanded duty of initial inquiry imposed by section 224.2(b) is triggered only by
warrantless removals, and we are not persuaded by Delila D.’s contrary reasoning.
32
C. The Federal Guidelines Recommend Extended Family Inquiry for Warrantless
Removals
Delila D. rejects Robert F.’s conclusion that the Legislature intended section
224.2(b) “to track federal guidelines for implementing ICWA (the Bureau of Indian
Affairs (BIA) guidelines), which recommend initial inquiry of extended family members
in emergency situations but not in all cases.” (Robert F., supra, 90 Cal.App.5th at p. 502;
Delila D., supra, 93 Cal.App.5th at p. 973.) The BIA guidelines state: “It is
recommended that the State agency ask the family and extended family whether the child
is a Tribal member or whether a parent is a Tribal member and the child is eligible for
membership as part of the emergency removal and placement process.” (U.S. Dept. of
the Interior, Guidelines for Implementing the Indian Child Welfare Act (Dec. 2016) (BIA
guidelines), at p. 28, available at
<https://www.bia.gov/sites/default/files/dup/assets/bia/ois/pdf/idc2-056831.pdf>.) Delila
D. asserts that Robert F. “misconstrues the definition of an emergency removal under
both the federal regulations and California law.” (Delila D., at p. 973.) Delila D. further
asserts that an “emergency removal is the court’s order detaining the child at the
detention hearing.” (Ibid.) We are not persuaded, because Delila D. fails to identify any
error in Robert F.’s interpretation of the guidelines and does not provide an alternative
interpretation.
Neither ICWA itself nor the federal regulations implementing it contain a
definition of the term “emergency removal,” and Delila D. cites none. (See 25 C.F.R.
33
§ 23.2 (2023).) The regulations define the term “emergency proceeding,” but it just
“means and includes any court action that involves an emergency removal or emergency
placement of an Indian child.” (25 C.F.R. § 23.2 (2023).) That definition thus
presupposes that the concept of an emergency removal is prior to and independent of the
concept of an emergency proceeding—if an emergency removal were simply a removal
ordered at an emergency proceeding, then the definitions would be circular.
The BIA guidelines recommend inquiry of extended family members for
emergency removals. (BIA guidelines, at p. 28.) The question is what the guidelines
mean by the term “emergency removal,” which the guidelines (like the federal
regulations) do not define. Another section of the guidelines, entitled “Threshold for
removal on an emergency basis,” appears to provide the answer. (Id. at p. 23, boldface
omitted.) The first paragraph of that section states that removal at an emergency
proceeding—which by definition must be a court action (25 C.F.R. § 23.2 (2023))—is
allowed “only if the child faces ‘imminent physical damage or harm.’” (BIA guidelines,
at p. 23.) The second paragraph of the same section explains that a state official may take
a child into custody “without court authorization or parental consent only in emergency
circumstances,” which “[c]ourts have defined . . . as ‘circumstances in which the child is
immediately threatened with harm,’ including when there is an immediate threat to the
safety of the child, when a young child is left without care or adequate supervision, or
where there is evidence of serious ongoing abuse and the officials have reason to fear
imminent recurrence.” (Id. at pp. 23-24.) That paragraph thus appears to define an
34
emergency removal (as opposed to an emergency proceeding, which itself is defined in
terms of emergency removal) as follows: It is a removal without court authorization (and
hence without a warrant) that is justified by an immediate threat to the child’s safety.
The standard for warrantless removals under California law is in accord. (See § 305,
subd. (a) [“the minor has an immediate need for medical care, or the minor is in
immediate danger of physical or sexual abuse, or the physical environment or the fact
that the child is left unattended poses an immediate threat to the child’s health or safety”];
§ 306, subd. (a)(2) [“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”].)
Because the BIA guidelines define an emergency removal as a warrantless
removal justified by an immediate threat of harm, when the guidelines recommend
extended family member inquiry for emergency removals, they are recommending it for
warrantless removals.
Delila D. does not offer an alternative interpretation of the BIA guidelines’
recommendation. Instead, Delila D. notes that according to section 315, the detention
hearing is considered an emergency removal under ICWA when the case involves an
Indian child. (Delila D., supra, 93 Cal.App.5th at p. 973.) But again, the question is
what the BIA guidelines mean by the term “emergency removal” when the guidelines
recommend extended family member inquiry for emergency removals. State law tells us
nothing about that. Delila D.’s argument therefore fails to persuade.
35
In sum, Robert F.’s interpretation of the BIA guidelines as recommending
extended family member inquiry for warrantless removals appears to be well supported,
Delila D. does not identify any error in Robert F.’s interpretation, and Delila D. does not
offer an alternative interpretation.
D. The Federal Guidelines’ Recommendation Is Reasonable
Delila D. reasons that “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.” (Delila D., supra, 93
Cal.App.5th at p. 975.) We have previously addressed that point too: “[B]ecause
warrantless detentions trigger various time-sensitive ICWA-related requirements that are
otherwise inapplicable (§ 306, subd. (d)), it makes sense in such cases to expand the duty
of initial inquiry—confirming whether the child in such a case is an Indian child is
particularly urgent.” (Ja.O., supra, 91 Cal.App.5th at p. 681, citing Robert F., supra, 90
Cal.App.5th at pp. 501-502.) Moreover, as already explained, the Legislature created an
expanded duty of initial inquiry for warrantless detentions because that is what the
federal guidelines recommend. (Robert F., at pp. 502-503.) And there is a sensible
reason for the recommendation in the BIA guidelines.
Congress enacted ICWA because of a rising concern in the mid-1970’s about
“child welfare practices that resulted in the separation of large numbers of Indian children
from their families and tribes.” (Mississippi Band of Choctaw Indians v. Holyfield (1989)
490 U.S. 30, 32.) The long history of the “widespread removal of Indian children from
36
their families and communities” dates back to the 1800’s, when the federal government
established Indian boarding schools. (Jacobs, Remembering the “Forgotten Child”: The
American Indian Child Welfare Crisis of the 1960s and 1970s (2013), 37 Am. Indian Q.
136, 139 (hereafter Jacobs); U.S. Dept. of Interior, Office of Asst. Secretary–Indian
Affairs, Federal Indian Boarding School Initiative Investigative Report (May 2022)
(Indian Boarding School Report) pp. 3, 6.) A force called the “Indian police” supported
the forcible removal of Indian children and their placement in boarding schools. (Indian
Boarding School Report, at p. 29.) For instance, in the late 1800’s, one federal agent
described how the Indian police abducted Apache children. (Ibid.) The chiefs had
declared that there were no children suitable for boarding school in their camps, so the
Indian police “‘visit[ed] the camps unexpectedly,’” chased and seized the children, and
took them away, “‘willing or unwilling.’” (Ibid.) Decades later, a witness described
“‘kid-catching’” on a Navajo reservation. The Navajos hid “their children at the sound of
a truck,” so “stockmen, Indian police, and other mounted men” were sent to round up the
Navajo children. (Coolidge, “Kid Catching” on the Navajo Indian Reservation in The
Destruction of American Indian Families (Unger edit., 1977) p. 18.) The children were
“caught, often roped like cattle, and taken away from their parents.” (Ibid.) Such
“‘child-snatching was a common practice until the 1930’s.’” (Lacey, The White Man’s
Law and the American Indian Family in the Assimilation Era (1986) 40 Ark. L. Rev. 327,
359 (hereafter Lacey).)
37
“[T]he increased fostering and adoption of Indian children in the 1960s and 1970s
represent[ed] both a direct legacy” of the earlier boarding school policy “and a new
reiteration of Indian child removal.” (Jacobs, supra, 37 Am. Indian Q. at p. 139.) Social
workers often took Indian children from their homes without due process or “an
adjudicatory process at all.” (H.R.Rep. No. 95-1386, 2d Sess., p. 11 (1978) (House
Report), reprinted in 1978 U.S. Code Cong. & Admin. News, at p. 7533; Lacey, supra,
40 Ark. L. Rev. at p. 376.) In the lead-up to ICWA, one witness before a federal
commission testified: “‘I can remember (the welfare worker) coming and taking some of
my cousins and friends. I didn’t know why and I didn’t question it. It was just done and
it had always been done.’” (House Report, supra, at p. 8 & fn. 2, 1978 U.S. Code Cong.
& Admin. News, at pp. 7530-7531.)
That long and dark history of removing Indian children without due process or any
kind of court involvement or oversight provides a sensible reason to recommend a more
expansive ICWA inquiry when today’s social workers remove children without court
authorization. Under the Fourth and Fourteenth Amendments, removals without court
authorization require parental consent or exigent circumstances. (Ja.O., supra, 91
Cal.App.5th at p. 679.) That is, without parental consent, there must be “‘reasonable
cause to believe that the child is in imminent danger of serious bodily injury and that the
scope of the intrusion is reasonably necessary to avert that specific injury.’” (Ibid.)
Often, such exigent circumstances arise when the parents are not present. Indeed,
parental absence is one of the criteria for warrantless removal under both the BIA
38
guidelines and California law. (BIA guidelines, at p. 24 [warrantless removal is
permitted “when a young child is left without care or adequate supervision”]; § 305,
subd. (a) [warrantless removal is authorized if “the fact that the child is left unattended
poses an immediate threat to the child’s health or safety”].) The BIA reasonably
recommended that when warrantless, emergency removals occur, the ICWA inquiry
should not be limited to the (often absent) parents but must be directed to whatever
extended family members are available.6
E. Rule 5.481(a)(1) of the California Rules of Court Conflicts with Legislative
Intent
Delila D. disagrees with Robert F. because rule 5.481(a)(1) of the California Rules
of Court requires inquiry of “extended family members” and does not limit that duty to
cases in which a child is placed into temporary custody pursuant to section 306 or 307.
(Delila D., supra, 93 Cal.App.5th at pp. 966, 975.) But the history of the amendments
that added that language to the rule shows that the Judicial Council intended merely to
conform the rule to section 224.2(b). The invitation to comment on the proposed
amendments stated that the amendments would add “extended family members and
6 We also note that Delila D.’s argument on this point—“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”
(Delila D., supra, 93 Cal.App.5th at p. 975)—appears to be a non sequitur. As the
foregoing discussion illustrates, circumstances such as the absence of the parents can
have consequences for the appropriate ICWA inquiry even if they have no bearing on a
child’s ICWA status—the presence or absence of the parents is irrelevant to the ultimate
determination of whether the child is an Indian child within the meaning of ICWA.
39
others who have an interest in the child, including a party reporting child abuse or
neglect, to those who must be asked whether or not the child may be an Indian child.”
(Judicial Council of Cal., Tribal Ct.–State Ct. Forum, and Family and Juvenile Law
Advisory Com., Invitation to comment SPR19-42 (2019), p. 4.)7 The invitation to
comment cited section 224.2(b) as the sole authority for that amendment. (Id. at p. 4, fn.
6.)
When the Judicial Council later considered and approved the amendments to the
rule, the report to the Judicial Council from the relevant advisory committees described
the amendments in the same way: The report explained that the amendments would add
extended family members and others who have an interest in the child, including the
reporting party, to those who must be asked about potential Indian ancestry, and the
report again cited section 224.2(b) as the sole authority for that amendment. (Judicial
Council of Cal., Tribal Ct.–State Ct. Forum, and Family and Juvenile Law Advisory
Com. Rep., Appendix B, p. 270 & fn. 1.)8
“The Judicial Council may promulgate rules for juvenile proceedings. (§ 265.)
But where a rule is inconsistent with the legislative intent, it will be disapproved.” (In re
Jesus J. (1995) 32 Cal.App.4th 1057, 1060.) The Legislature expressly limited the
expanded duty of initial inquiry to cases in which a child is placed into temporary
7 The invitation to comment is available at https://www.courts.ca.gov/documents/
spr19-42.pdf.
8 The report to the Judicial Council is available at https://jcc.legistar.com/
View.ashx?M=F&ID=7684873&GUID=52B4C6B1-F704-458F-BF42-EB1AA4F82000.
40
custody pursuant to section 306 or 307. (§ 224.2(b).) The Judicial Council intended to
conform the rule of court to section 224.2(b) but neglected to incorporate the limitation
imposed by the statute. To the extent that rule 5.481(a) of the California Rules of Court
applies the expanded duty of initial inquiry beyond the limits imposed by the Legislature,
it is inconsistent with legislative intent and is disapproved. (In re Jesus J., supra, at
p. 1060 [because the Legislature “expressly delineated the circumstances which allow a
juvenile court to dismiss a petition,” a rule allowing for dismissal in other circumstances
“is inconsistent with legislative intent and hereby disapproved”].)
F. Robert F. Does Not Conflict with Prior Precedent
Delila D. states that earlier decisions of our court held that “the duty of initial
inquiry in section 224.2(b) ‘applies in every dependency proceeding.’” (Delila D., supra,
93 Cal.App.5th at pp. 975-976, quoting Ricky R., supra, 82 Cal.App.5th at p. 678.)
Delila D. concludes that Robert F. departed from that prior case law, so that is a
compelling reason not to follow Robert F. (Delila D., at pp. 975-976.) The argument is
meritless.
Until Robert F., no opinion of this court had ever addressed the meaning and
effect of the limiting language in section 224.2(b), and no opinion of this court had
considered whether section 224.2(b) applies if a child is taken into protective custody
pursuant to a warrant or applies only if a child is taken into temporary custody under
section 306 or 307. There thus was no contrary precedent from this court. (Sonic-
Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1160 [“‘it is axiomatic that cases
41
are not authority for propositions not considered’”]; Fairbanks v. Superior Court (2009)
46 Cal.4th 56, 64 [“a judicial decision is not authority for a point that was not actually
raised and resolved”]; Canales v. City of Alviso (1970) 3 Cal.3d 118, 127, fn. 2
[“‘Questions which merely lurk in the record, neither brought to the attention of the court
nor ruled upon, are not to be considered as having been so decided as to constitute
precedents’”].) The only precedent contrary to Robert F. is Delila D.
G. Robert F. Does Not Undermine ICWA
Finally, Delila D. concludes that Robert F.’s interpretation of section 224.2(b)
“would significantly undermine the purpose of ICWA and the California statutes
implementing ICWA.” (Delila D., supra, 93 Cal.App.5th at p. 976.) We are not
persuaded.
Before Assembly Bill 3176, ICWA-related California law already exceeded the
requirements of federal law. (E.g., In re G.C. (2013) 216 Cal.App.4th 1391, 1400; In re
A.B. (2008) 164 Cal.App.4th 832, 838; In re Alice M. (2008) 161 Cal.App.4th 1189,
1202.) As modified by Assembly Bill 3176, ICWA-related California law exceeds those
requirements still further. (E.g., In re M.W. (2020) 49 Cal.App.5th 1034, 1043-1044;
Assem. Com. on Judiciary, Rep. on Assem. Bill No. 3176 (2017-2018 Reg. Sess.), as
amended Apr. 11, 2018, p. 10 [“In this bill, California has a higher standard for
determining if a child may be an Indian child and requires that further inquiry must be
undertaken for those children”].) That remains true under Robert F. Delila D. does not
explain how a case under which California law is more protective of Indian children,
42
families, and tribes than required by federal law could nonetheless “undermine the
purpose of ICWA.” (Delila D., supra, 93 Cal.App.5th at p. 976.) Not every
disagreement about the extent to which California law exceeds federal requirements
presents a conflict between undermining ICWA and furthering it.
The legislative history of Assembly Bill 3176 illustrates the point. As Delila D.
explains, the California Tribal Families Coalition sponsored Assembly Bill 3176.
(Assem. Com. on Judiciary, Rep. on Assem. Bill No. 3176 (2017-2018 Reg. Sess.), as
amended Apr. 11, 2018, at p. 1.) The coalition and numerous tribes supported the bill as
introduced. (Assem. Com. on Human Services, Rep. on Assem. Bill No. 3176 (2017-
2018 Reg. Sess.), as introduced Apr. 2, 2018, at p. 10.) That original version of the bill
described a much more restrictive duty of inquiry than the enacted legislation as
interpreted by Robert F. (Assem. Bill 3176 as introduced Feb. 16, 2018, § 5, pp. 17-18.)
The original bill did not include the broad language stating that the affirmative and
continuing duty to inquire applies to any child for whom a section 300 petition may be or
has been filed, and the bill did not impose a duty to inquire that begins at initial contact.
(Id. at p. 17.) While the bill required the court to ask each participant in a child custody
proceeding about a child’s Indian status, it also stated that “the duty to inquire begins
once there is a reason to know that the child is an Indian child.” (Id. at pp. 17-18.) And
the bill did not expressly require initial inquiry of extended family members under any
circumstances. (Ibid.)
43
If the characterization of Robert F. as undermining the purpose of ICWA were
accurate, then the tribes themselves sponsored and supported a proposal (namely, the
original version of Assembly Bill 3176) that undermined the purpose of ICWA (because
it was more restrictive than Robert F.). That is not plausible. Rather, the tribes
sponsored and supported a proposal that enhanced ICWA enforcement and exceeded
federal requirements, even though it did not go as far as the version of the bill that was
ultimately enacted. The disagreement between Robert F. and Delila D. is similar.
Neither case undermines ICWA. They merely disagree about the extent to which
California law exceeds federal requirements.
H. The Concurring Opinion’s Analysis Is Not Persuasive
The concurring opinion disagrees with Robert F. and Ja.O. for the reasons
articulated in Delila D. (conc. opn., post, at p. 1), which we have already addressed. The
concurring opinion also adds a few points warranting separate treatment.
First, the concurring opinion argues that “the language and historical context of
section 340” refute Ja.O.’s surplusage analysis (conc. opn., post, at pp. 5-6), but the
legislative history cited by the concurring opinion actually supports our view that section
306(a)(1) does not apply to removals pursuant to protective custody warrants. To review,
subdivision (c) of section 340 requires the social worker to investigate “pursuant to
section 309” when the child has been taken into protective custody under section 340.
(§ 340, subd. (c); Ja.O., 91 Cal.App.5th at p. 680.) Section 309 imposes certain
investigative duties on social workers with respect to children in temporary custody under
44
article 7 of the juvenile court law, which includes section 306 but not section 340.
(§ 309, subd. (a); Welf. & Inst. Code, div. 2, pt. 1, ch. 2, art. 7.) Thus, if children in
protective custody under section 340 were in temporary custody within the meaning of
section 306(a)(1), then there would be no need for section 340 to specify that the social
worker must conduct a section 309 investigation. (Ja.O., supra, 91 Cal.App.5th at p.
680.) Rather, section 309 would already apply, because it applies to every child in
temporary custody under section 306. (Ja.O., at p. 680.)
Former section 340 consisted solely of what is now subdivision (a), which
permitted the juvenile court to issue a protective custody warrant when a dependency
petition had already been filed. (Stats. 1987, ch. 1485, § 29.) The Legislature amended
section 340 in 2017 to add both subdivision (b)—authorizing the court to issue a
protective custody warrant without the filing of a dependency petition (§ 340, subd.
(b))—and subdivision (c)—making section 309 applicable to children who are taken into
protective custody pursuant to protective custody warrants (§ 340, subd. (c)). (Stats.
2017, ch. 262, § 1.) A legislative committee report on the 2017 bill explained that by
enacting subdivision (c), the Legislature intended to subject children removed pursuant to
protective custody warrants to the “same provisions and restrictions currently in place for
a child in temporary custody.” (Sen. Com. on Judiciary, Rep. on Assem. Bill 1401, as
amended Apr. 19, 2017, at p. 5.)
The concurring opinion asserts that the legislative committee report undermines
Ja.O.’s argument concerning the interpretation of section 306(a)(1), but we are not
45
persuaded. On the contrary, the report supports Robert F. and Ja.O. and undermines
Delila D. The report does not state that section 309 applies to children taken into custody
pursuant to protective custody warrants because such children are in temporary custody
under section 306(a)(1). Rather, the report takes the opposite view—it is necessary to
enact a new provision making section 309 applicable. The report thus confirms the
distinction between protective custody under section 340 and temporary custody under
section 306.9
Second, the concurring opinion rejects Ja.O.’s claim that it makes sense to expand
the duty of initial inquiry for warrantless detentions because of the time-sensitive ICWA-
related requirements applicable to such detentions under section 306, subdivision (d).
(Conc. opn., post, at pp. 3-4; see Ja.O., supra, 91 Cal.App.5th at p. 681.) In support of its
position, the concurring opinion reasons that Assembly Bill 3176 did not just add
requirements to section 306—it also added new ICWA-related requirements to section
9 We note that there is an additional problem with Delila D.’s interpretation of
section 306(a)(1) and section 224.2(b). If Delila D. were right that section 306(a)(1)
applies to children taken into protective custody pursuant to protective custody warrants,
then the expanded duty of initial inquiry under section 224.2(b) would apply to all
children taken into custody (with or without warrants) before the detention hearing, but it
would not apply to children who are first detained by the court at the detention hearing,
never having been taken into custody previously. Delila D. obviates the need to explain
that differential treatment by arguing that because section 224.2(b) does not contain the
word “only,” it applies to all children regardless of whether they were taken into
temporary custody under section 306 or 307. (Delila D., supra, 93 Cal.App.5th at p.
974.) But if Delila D.’s argument concerning the absence of the word “only” fails, as we
argue it does (ante, pp. 27-29), then Delila D.’s interpretation of section 306(a)(1) and
section 224.2(b) leads to differential treatment that is at least as hard to explain as the
differential treatment under Robert F. and Ja.O.
46
319, which govern the detention of Indian children at the initial hearing. (Conc. opn.,
post, at pp. 3-4.)
It is true that Assembly Bill 3176 made changes to section 319 (and many other
parts of the statutory scheme). But the point made in Ja.O. is that the time-sensitive
requirements imposed by subdivision (d) of section 306 apply only if the “social worker
takes or maintains an Indian child into temporary custody under subdivision (a)” of
section 306, and that differential treatment of cases in which the child is taken into
temporary custody without a warrant provides a sensible reason for treating the initial
inquiry differently in such cases. (Ja.O., supra, 91 Cal.App.5th at p. 681.) It is irrelevant
that Assembly Bill 3176 also made changes to section 319 that do not themselves support
treating warrantless cases differently. Ja.O. never claimed that every change made by
Assembly Bill 3176 supports treating warrantless cases differently.10
Third, the concurring opinion denies that the history of removing Indian children
from their families without due process or court oversight provides a sensible reason for
the BIA to recommend extended family member inquiry when warrantless, emergency
10 The concurring opinion also argues that the time-sensitive requirements of
subdivision (d) of section 306 apply to all children taken into custody before the
detention hearing, with or without warrants, so those requirements do not support
differential treatment. (Conc. opn., post, at p. 3.) But the argument is based entirely on
Delila D.’s claim that children taken into protective custody pursuant to protective
custody warrants are in temporary custody under section 306(a)(1). (Conc. opn., post, at
p. 3.) The concurring opinion’s argument therefore is of no consequence. If Delila D. is
right about section 306(a)(1), then there is no differential treatment to explain. But if
Robert F., Ja.O., and our opinion today are right about section 306(a)(1), then the
requirements of subdivision (d) of section 306 apply only in warrantless cases and thus
do make sense of the Legislature’s decision to treat such cases differently.
47
removals occur. (Conc. opn., post, at pp. 7-8.) That appears to be a policy disagreement
between the concurring opinion and the BIA, and perhaps between the concurring
opinion and the Legislature (for following the BIA’s recommendation). But the issue
dividing Robert F. and Delila D. is a question of statutory interpretation. Our role is to
“follow the Legislature’s intent, as exhibited by the plain meaning” of the statutory
language, not to pass on the wisdom or policy underlying the legislation. (California
Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627,
632.) And as we held in Robert F., the language of section 224.2(b) “is plain and
therefore controls.” (Robert F., supra, 90 Cal.App.5th at p. 500.) The holdings of Robert
F. and Ja.O. were not based on our own policy preferences. Rather, they were based on
analysis of the statutory language, related provisions of the statutory scheme, and the
legislative history, including the BIA guidelines. Now, in response to Delila D.’s
assertion that “it simply doesn’t make sense to apply different initial inquiries depending
on how the child was initially removed from home” (Delila D., supra, 93 Cal.App.5th at
p. 975), we have provided reasons (in addition to those stated in Ja.O.) for the BIA’s
recommendation and the Legislature’s decision to follow it. Those reasons make sense of
the BIA’s recommendation and the Legislature’s decision, regardless of the concurring
opinion’s view that the reasons are not particularly strong.
On a related point, the concurring opinion asserts that even if the history of
removing Indian children without court oversight were an adequate reason for the
Legislature’s decision to treat warrantless removals differently, that rationale would
48
apply only until the court becomes involved at the detention hearing. (Conc. opn., post,
at p. 8.) But there is at least one sensible reason for the Legislature’s decision to make
the expanded duty of initial inquiry last throughout the proceedings instead of terminating
at the detention hearing: If the duty ended at the detention hearing, then it would be
virtually impossible for courts to enforce it. Thus, by creating an expanded duty of initial
inquiry that both applies if a child is taken into temporary custody without a warrant and
lasts throughout the dependency case, the Legislature followed the BIA guidelines’
recommendation, did justice to the heightened concerns (including parental absence) that
warrantless removals pose, and made the duty susceptible of judicial enforcement.
Fourth, the concurring opinion asserts that the first sentence of section 224.2(b)
does not limit or define the initial inquiry. (Conc. opn., post, at p. 6.) Instead, the
concurring opinion claims that the first sentence “is intended to frontload a social
worker’s investigative duties in cases where the child is removed from home prior to the
filing of a dependency petition.” (Id. at pp. 6-7.) To the extent that means the first
sentence merely tells the child welfare department when to begin its inquiry, the
interpretation is not reasonable. The first sentence of section 224.2(b) does not contain
any language related to timing. The sentence does not, for instance, state that the child
welfare department must inquire when or as soon as the child is placed into the
temporary custody of the department under section 306 or that the department must
inquire of extended family members before the initial petition hearing or detention
hearing. Nor does the sentence contain language similar to subdivision (c) of section
49
224.2, which requires the court to inquire “[a]t the first appearance in court of each
party.” And as already explained, subdivision (a) of section 224.2 does state when the
duty to inquire arises—it “begins with the initial contact.” For all of these reasons, the
plain language of the statute does not support the concurring opinion’s apparent
suggestion that the purpose of the first sentence of section 224.2(b) is merely to specify
the timing of (“frontload”) the social worker’s duty of inquiry.
For all of the foregoing reasons, we conclude that Robert F. correctly interpreted
section 224.2(b). Neither Delila D. nor the concurring opinion persuades us to the
contrary. DPSS did not take Andres into temporary custody pursuant to section 306.
Accordingly, the expanded duty of initial inquiry under section 224.2(b) did not apply.
DISPOSITION
The dispositional order is affirmed.
CERTIFIED FOR PARTIAL PUBLICATION
MENETREZ
J.
I concur:
FIELDS
J.
50
[In re Andres R., E079972]
Slough, J., Concurring.
I write separately because I do not agree with the majority’s interpretation of the
1
ICWA duty of initial inquiry described in Welfare and Institutions Code section 224.2,
subdivision (b) (section 224.2(b)) (unlabeled statutory citations refer to this code).
Following our court’s recent holdings in In re Robert F. (2023) 90 Cal.App.5th 492,
review granted July 26, 2023, S279743 and In re Ja.O. (2023) 91 Cal.App.5th 672,
review granted July 26, 2023, S280572 (Ja.O.), my colleagues conclude the provision,
which requires social workers to ask available extended family members whether the
child “is or may be an Indian child” within the meaning of ICWA, applies in only those
cases which begin with a warrantless removal before the initial petition hearing. (Maj.
opn., ante, at p. 2.) For the reasons articulated in In re Delila D. (2023) 93
Cal.App.5th 953 (Delila D.), I respectfully disagree and continue to construe the inquiry
described in section 224.2(b) as applying any time a child is removed from home.
Section 224.2(b) was enacted as part of Assembly Bill No. 3176 (2017-2018 Reg.
Sess.) (A.B. 3176), which added several new ICWA-related provisions to the Welfare
and Institutions Code that became effective January 1, 2019. (Stats. 2018, ch. 833, §§ 1-
39.) Our Legislature’s dual purposes in enacting A.B. 3176 were to (1) increase tribes’
opportunity to be involved in child custody cases involving Indian children and (2) bring
California law into compliance with 2016 federal ICWA regulations imposing minimum
1 Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA).
1
requirements to state court emergency proceedings involving Indian children. (In re S.S.
(2023) 90 Cal.App.5th 694, 699-702; 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) pp. 1-2 (Enrolled Bill Report).)
To achieve these goals, A.B. 3176 imposed new ICWA-related substantive
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(b); see also §§ 306,
319; Stats. 2018, ch. 833, §§ 1-39.) After A.B. 3176 went into effect, the Judicial Council
revised rule 5.481 of the California Rules of Court to implement the expanded duty of
initial inquiry. That rule now provides that “[t]he 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.” (Cal.
Rules of Court, rule 5.481(a)(1) (rule 5.481).)
In my view, section 224.2(b) and rule 5.481 create a clear mandate: where a child
has been removed from home or is at risk of being removed from home, the social worker
must ask available extended family members whether the child is or may be an Indian
child. Under the majority’s view, however, the inquiry described in section 224.2(b)
applies only in cases where the child was initially removed from home without a warrant.
2
The majority reasons that it makes sense to impose such a dichotomy in
dependency proceedings “because warrantless detentions trigger [the] time-sensitive
ICWA-related requirements” in section 306, subdivision (d) that are “otherwise
inapplicable” to children removed by protective custody warrant. (Ja.O., supra, 91
Cal.App.5th at p. 681.) Thus, “confirming whether [a child removed without a warrant] is
an Indian child is particularly urgent.” (Ibid.)
The time-sensitive requirement in section 306, subdivision (d) to which Ja.O.
refers requires social workers to immediately notify the tribe if they know or have reason
to believe the child they have taken into temporary custody falls within the tribe’s
exclusive jurisdiction under ICWA. (§ 306, subd. (d).) I disagree that this requirement
does not apply to children removed by warrant and held in the department’s custody
before the detention hearing. As Delila D. explained, such children fall within section
306, subdivision (a)(1) as soon as they are delivered to the social worker upon execution
of the protective custody warrant. (See Delila D., supra, 93 Cal.App.5th at pp. 971-972
[concluding children removed by warrant are held in the department’s temporary custody
leading up to the detention hearing].) So, section 306, subdivision (d) does apply to
children removed by warrant and doesn’t justify importing different treatment into our
interpretation of section 224.2(b).
Moreover, A.B. 3176 did not add new ICWA-related requirements to section 306
alone. It also added ICWA-related provisions to section 319, which governs the detention
of children at the initial petition hearing. (Stats. 2018, ch. 833, § 22.) For example, as
3
amended, section 319 provides that if a court “knows or there is reason to know the child
is an Indian child,” it may not detain the child at the initial petition hearing unless it
“finds that detention is necessary to prevent imminent physical damage or harm” and
“state[s] on the record the facts supporting this finding.” (§ 319, subd. (d); Stats. 2018,
ch. 833, § 22.) As Delila D. explained, because section 319 governs all detention
hearings, even those involving children who were removed by warrant, A.B. 3176’s
amendments to that provision will apply if there is reason to know a child removed by
warrant is an Indian child. (Delila D., supra, 93 Cal.App.5th at pp. 970-971.)
My colleagues characterize this reasoning from Delila D. as unsound because, in
their view, section 315 does not provide the statutory directive to hold a detention hearing
for a child removed by warrant, but section 290.1 does. (Maj. opn., ante, at pp. 26-27.) I
disagree. Section 290.1 is a notice provision, as indicated by its placement in article 5.5
of the juvenile court law, which governs “Notices in Dependent Child Proceedings.”
(Welf. & Inst. Code, div. 2, pt. 1, ch. 2, art. 5.5.)2 The provision does not apply to courts
and does not direct courts to hold a detention hearing. Rather, it applies to social workers
and sets out the steps they must take to provide notice of the hearing. (§ 290.1.) Because
section 315 is the only statutory directive requiring the court to hold a detention hearing,
it necessarily applies to both categories of children. (§ 315 [providing that if a child has
been taken into custody and not released to a parent or guardian, “the juvenile court shall
2 Unlabeled citations to articles refer to the juvenile court law. (Welf. & Inst.
Code, div. 2, pt. 1, ch. 2.)
4
hold a hearing (which shall be referred to as a ‘detention hearing’) to determine whether
the child shall be further detained”], italics added.)
For related reasons, I also disagree with the surplusage argument articulated in
Ja.O. According to Ja.O., “[i]f subdivision (a)(1) of section 306 referred to a child taken
into protective custody under section 340, then there would be no need to specify [in
section 340, subdivision (c)] that the social worker conduct a section 309 investigation.”
(Ja.O., supra, 91 Cal.App.5th at p. 680.) I believe the language and historical context of
section 340 demonstrate that the reference to section 309 is not surplusage but instead
functions as a necessary cross-reference to the temporary custody and detention
provisions in article 7.
To explain, the provision at issue—section 340, subdivision (c)—was enacted by
Assembly Bill No. 1401, an amendment that authorized courts to issue protective custody
warrants before a dependency petition is filed on behalf of the child. (§ 340, subd. (b);
stats. 2017, ch. 262 (A.B. 1401), § 1.) As originally enacted, section 340 authorized
courts to issue a protective custody warrant only after the filing of the petition. (Former
§ 340.) For that reason, section 340 is located in article 8, which is entitled
“Commencement of Proceedings” and governs the aspects of proceedings related to the
filing of dependency petitions. (Welf. & Inst. Code, div. 2, pt. 1, ch. 2, art. 8.)
Before the enactment of A.B. 1401, the only way a social worker could maintain
custody of a child prior to filing a dependency petition on the child’s behalf was if the
social worker believed removal was necessary to protect the child from immediate
5
danger. (§§ 305, 305.6, 306, subd. (a)(2).) A.B. 1401 thus added an additional
circumstance under which a social worker is authorized to maintain custody of a child
prior to the filing of a dependency petition. (§ 340, subd. (b); Stats. 2017, ch. 262 (A.B.
1401), § 1.)
The legislative history of that amendment shows, in conferring this new authority
on courts, the Legislature wanted to ensure that children removed by warrant prior to the
filing of a dependency petition were subject to the “same provisions and restraints
currently in place for a child in temporary custody.” (Sen. Jud. Com., Rep. on Assem.
Bill No. 1401, Apr. 19, 2017, p. 5.) One way to make that intention clear would be to add
A.B. 1401 to article 7. Another option would be to add A.B. 1401 to the pre-existing
warrant provision in article 8 and include cross-references to article 7 to make clear that
children removed by warrant are subject to the same protections as children removed
under exigent circumstances.
I believe this is precisely what the Legislature had in mind when it included a
reference to section 309 in section 340, subdivision (c). By referencing section 309—and
by including the phrase “delivered to the social worker” (which I interpret as a reference
to section 306, subdivision (a)(1))—the Legislature was conveying its intent that children
removed by warrant be subject to the provisions of article 7. For all these reasons, I think
the majority is wrong to interpret the first sentence of section 224.2(b) as imposing a
condition or limitation on the inquiry described in the second sentence. Given the
substantive changes A.B. 3176 made to article 7, I believe first the sentence is intended to
6
frontload a social worker’s investigative duties in cases where the child is removed from
home prior to the filing of a dependency petition. The need to determine whether a child
who may be detained at the initial petition hearing is an Indian child or falls under a
tribe’s exclusive jurisdiction is as urgent for children removed by warrant as it is for
children removed under exigent circumstances.
Moreover, that need does not diminish in urgency once a case moves past the
initial petition hearing stage. If anything, it becomes even more important to determine
whether ICWA applies once a child has been adjudged a dependent and removed from
parental custody at disposition, as the possibility of permanently separating the child
from their family is more concrete than at the initial petition stage. As Delila D. pointed
out, the majority’s holding leads to the irrational result that the manner of initial removal
dictates the scope of the initial inquiry throughout the entire proceeding. (Delila D.,
supra, 93 Cal.App.5th at p. 975.) Even if there were a rationale for treating the two
categories of children differently for inquiry purposes before the detention hearing, the
majority does not explain why that rationale would continue to matter once a case
progresses beyond the temporary custody and detention stage.
The majority opinion reasons that the disturbing historical examples of social
workers removing Native American children from their families without “any kind of
court involvement or oversight provides a sensible reason to recommend a more
expansive ICWA inquiry when today’s social workers remove children without court
authorization.” (Maj. opn., ante, at p. 38.) Because the current legal landscape is not the
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same as it was pre-ICWA, and because the temporary custody and detention provisions in
article 7 protect children from removal without court oversight, I disagree. But even if I
did find this rationale convincing, it would apply only until the detention hearing, at
which point the court does become involved. From that point forward, there is no reason
to treat children removed without a warrant differently for ICWA purposes.
Indeed, pre-detention circumstances are irrelevant under rule 5.481, which
requires social workers to make the initial inquiry of extended family members whenever
they seek to remove the child from home during a dependency proceeding. (Rule
5.481(a)(1).) The majority would disapprove of this rule of court to the extent it is
inconsistent with their view of section 224.2(b)—that is, to the extent it requires inquiry
of extended family members in cases where the child was not initially removed without a
warrant. (Maj. opn., ante, at p. 41.)
But as I hope my reasoning shows, rule 5.481 is easily harmonized with section
224.2(b). The first sentence of section 224.2(b) provides that the obligation to inquire of
available extended family members arises as soon as a child is placed into temporary
custody (i.e., before the proceeding commences), and rule 5.481 makes clear that
obligation also applies to any child removed during the proceeding.
I therefore conclude that the department is obligated to ask available extended
family members whether Andres is or may be an Indian child. However, because this
case is ongoing, I would not reverse the juvenile court’s finding that ICWA does not
apply but would instead affirm, as the majority does, and direct the department to
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discharge its duty going forward. (In re S.H. (2022) 82 Cal.App.5th 166, 179 [“So long as
proceedings are ongoing and all parties recognize the continuing duty of ICWA inquiry,
both the Agency and the juvenile court have an adequate opportunity to fulfill those
statutory duties”]; accord, In re Dominick D. (2022) 82 Cal.App.5th 560, 566.)
SLOUGH
Acting P. J.
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