94 Cal.App.5th 828
Cal. Ct. App.2023Background
- One‑year‑old Andres was present when Father allegedly choked Mother and threw her phone during a May 2022 incident; Mother and a minor half‑sister reported prior incidents of Father hitting Mother.
- DPSS welfare check at the family’s long‑term hotel room revealed hazardous, cluttered conditions and security‑key tampering; parents initially resisted contact and Father was arrested at the scene.
- DPSS obtained a protective custody warrant under Welf. & Inst. Code § 340 and filed a dependency petition (§ 300(b)(1)) alleging unsafe residence, ongoing domestic violence, and Father’s spousal‑abuse conviction; the juvenile court detained Andres and issued a TRO.
- Mother told the social worker she had no Indian ancestry; Father indicated possible Cherokee ancestry and submitted an ICWA parental form; DPSS contacted the Cherokee Nation, which said Andres was not an Indian child for that tribe.
- At the contested hearing the court sustained allegations of unsafe living conditions, ongoing domestic violence, and Father’s misdemeanor spousal abuse, took jurisdiction, removed Andres from parental custody, ordered reunification services, and found ICWA did not apply.
- Father appealed, challenging (1) sufficiency of evidence for jurisdiction and removal, and (2) whether DPSS complied with ICWA inquiry duties (specifically whether § 224.2(b)’s extended‑family inquiry applied when removal was by § 340 warrant).
Issues
| Issue | Plaintiff's Argument (DPSS) | Defendant's Argument (Father) | Held |
|---|---|---|---|
| Sufficiency of jurisdictional finding under § 300(b)(1) (domestic violence/unsafe conditions) | Substantial evidence (Mother’s account, child witness, visible injuries, hazardous hotel conditions, parents still together) supports jurisdiction. | Father contended evidence was insufficient—incident isolated, he wasn’t living at hotel, and denials preserved. | Court affirmed: substantial evidence supports jurisdiction based on ongoing domestic violence placing the child at risk. |
| Sufficiency of removal order under § 361(c)(1) (clear and convincing standard) | Removal necessary because Father’s violence placed one‑year‑old at substantial danger and no reasonable alternatives existed given parents’ conduct and lack of reliable assurances. | Father argued risk was isolated, he was participating in services, and less‑restrictive placements or conditions could protect Andres. | Court affirmed: clear and convincing evidence supported removal and that reasonable means short of removal were not available. |
| ICWA initial‑inquiry duty under Welf. & Inst. Code § 224.2(b): must DPSS ask extended family when child removed by § 340 protective‑custody warrant? | § 224.2(b)’s expanded initial inquiry applies only when a child is taken into temporary custody without a warrant (warrantless removals); here removal was by warrant, so § 224.2(b) did not apply. | Father argued DPSS failed to ask extended family as § 224.2(b) requires; expanded inquiry applies whenever a child is removed, regardless of warrant. | Court held § 224.2(b) is triggered only by warrantless temporary custody removals; no ICWA error here. |
| Validity of California Rule of Court 5.481(a)(1) vs. statute (§ 224.2(b)) | (Respondent) Judicial Council intended rule to conform to § 224.2(b)’s limited duty; rule’s broader language cannot override statutory limitation. | (Father/concurring view) Rule 5.481 and § 224.2(b) should be read to require extended‑family inquiry when a child is removed from home, including warrant removals. | Court concluded rule 5.481 overbroad to extent it requires broader inquiry than statute; to that extent inconsistent with legislative intent and disapproved. |
Key Cases Cited
- In re Robert F., 90 Cal.App.5th 492 (Cal. Ct. App. 2023) (interprets § 224.2(b) to apply only to warrantless temporary‑custody removals)
- In re Ja.O., 91 Cal.App.5th 672 (Cal. Ct. App. 2023) (aligns with Robert F.; discusses time‑sensitive ICWA requirements for warrantless removals)
- In re Delila D., 93 Cal.App.5th 953 (Cal. Ct. App. 2023) (contrary view: § 224.2(b) initial inquiry applies to removals regardless of warrant; disagreed with here)
- In re D.P., 14 Cal.5th 266 (Cal. 2019) (one valid jurisdictional ground suffices to support dispositional orders)
- In re I.J., 56 Cal.4th 766 (Cal. 2013) (standard of review for sufficiency of evidence in dependency proceedings)
- In re R.T., 3 Cal.5th 622 (Cal. 2017) (removal order review standard and consideration of clear‑and‑convincing evidence)
- Conservatorship of O.B., 9 Cal.5th 989 (Cal. 2020) (context on appellate review under clear‑and‑convincing standard)