93 Cal.App.5th 953
Cal. Ct. App.2023Background
- Minor Delila D. was taken into protective custody by warrant (Welf. & Inst. Code § 340) on Jan. 24, 2021, placed in foster care, and a dependency petition was filed; parents denied Native American ancestry.
- The social worker interviewed some relatives about abuse (including the maternal uncle) but did not ask available extended family members about possible Indian ancestry.
- The juvenile court detained Delila, later found her a dependent, reunification failed, and parental rights were terminated (selection for adoption).
- The legal dispute centers on the scope of the statutory “initial inquiry” under Welf. & Inst. Code § 224.2(b) (amended by A.B. 3176): whether it requires asking available extended family members about Indian ancestry in every dependency (including when removal occurred by protective custody warrant), or only when the child was taken without a warrant.
- The Court of Appeal held the § 224.2 initial inquiry is a single, broad duty that includes available extended family members regardless of how the child was removed; it conditionally reversed and remanded for the department to complete the inquiry within 30 days.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of § 224.2(b) initial inquiry: must social workers ask available extended family about Indian ancestry in all dependencies? | Mother: § 224.2(b) requires asking extended family whenever the department has custody or is seeking placement/termination — i.e., in every dependency regardless of removal method. | Department: following In re Robert F., § 224.2(b) applies only when the child is placed into temporary custody pursuant to § 306 (i.e., warrantless removals); protective-custody warrant removals under § 340 are excluded. | The court held the initial inquiry includes available extended family members regardless of whether the child was removed by warrant or without a warrant; Robert F. was wrongly interpreted. |
| Meaning of “placed into temporary custody pursuant to § 306” — does it exclude children delivered under § 340? | Mother: § 224.2(b) should apply when the department assumes custody under § 306, which includes children delivered to the department after a warrant. | Department: § 306 is limited to warrantless takings; delivery under § 340 is distinct and not covered. | Court: § 224.2(b) covers children who are placed into the department’s temporary custody (including those delivered after a § 340 protective-custody warrant); statutory text and purpose support inclusion. |
| Remedy for failure to interview available extended family: does the omission require reversal/remand? | Mother: failure to ask an available maternal uncle (who had contact with the case) prejudiced tribes and requires conditional reversal and further inquiry. | Department: no inquiry was required (per Robert F.), so no prejudice. | Court: violation of § 224.2(b) prejudiced tribal interests here; conditionally reversed termination order and remanded for the department to complete the § 224.2 inquiry. |
| Precedent effect: must the court follow In re Robert F.? | Mother: Robert F. misinterpreted § 224.2(b) and should not control. | Department: courts should follow Robert F. and related decisions (Ja.O.). | Court: declined to follow Robert F., concluding it misconstrued the statute and conflicts with A.B. 3176’s purpose; followed broader line of cases requiring expansive inquiry. |
Key Cases Cited
- In re Robert F., 90 Cal.App.5th 492 (Cal. Ct. App. 2023) (held earlier that § 224.2(b) duty to ask extended family arises only where child was taken into custody under § 306 without a warrant)
- In re S.S., 90 Cal.App.5th 694 (Cal. Ct. App. 2023) (interpreting A.B. 3176’s expansion of the initial inquiry and emphasizing tribal interests)
- In re T.G., 58 Cal.App.5th 275 (Cal. Ct. App. 2020) (discussing state ICWA implementation and higher state standards)
- In re Isaiah W., 1 Cal.5th 1 (Cal. 2016) (background on the initial inquiry duty in prior statutory scheme)
- In re Adrian L., 86 Cal.App.5th 342 (Cal. Ct. App. 2022) (concurring analysis distinguishing § 306 and § 340 custodial paths)
- In re Ethan C., 54 Cal.4th 610 (Cal. 2012) (procedural rules for detention hearings following custodial removal)
- In re Benjamin M., 70 Cal.App.5th 735 (Cal. Ct. App. 2021) (holding initial inquiry applies broadly in dependency proceedings)
- In re Ricky R., 82 Cal.App.5th 671 (Cal. Ct. App. 2022) (same)