95 Cal.App.5th 388
Cal. Ct. App.2023Background
- Three children (ages 10, 9, 2) were taken from their parents and delivered to a county social worker after execution of protective custody warrants under Welfare & Institutions Code § 340; a § 300 dependency petition was filed.
- Mother told the agency she possibly had Cherokee and Navajo ancestry; mother filed ICWA-020 forms asserting possible tribal affiliation; father denied Indian ancestry.
- Agency completed some tribe-notice mailings and returned responses from tribes; the juvenile court ultimately found ICWA did not apply and terminated parental rights under § 366.26.
- Parents appealed, arguing the agency failed to perform a proper, adequate, and duly diligent ICWA inquiry (Welf. & Inst. Code § 224.2(b); Cal. Rules of Court, rule 5.481), especially as to extended family members.
- The court confronted a split of California Court of Appeal authority: Robert F. and Ja.O. (holding the § 224.2(b) duty of broad inquiry does not apply where children were removed by § 340 warrant) versus Delila D. (holding it does); the panel here follows Delila D.
Issues
| Issue | Plaintiff's Argument (Agency) | Defendant's Argument (Parents) | Held |
|---|---|---|---|
| Whether the broad ICWA inquiry obligation in § 224.2(b) (including asking extended family) applies when children are taken into protective custody by warrant under § 340 and then delivered to the county | Agency: § 224.2(b) only applies to children placed into county temporary custody pursuant to § 306; removals by warrant under § 340 are not § 306 placements, so the broader inquiry (extended family) is not triggered (relying on Robert F. and Ja.O.) | Parents: A child taken by § 340 warrant and delivered to a social worker is received and maintained in the county’s temporary custody under § 306(a)(1); § 224.2(b) therefore applies and triggers the expanded inquiry | Held: § 224.2(b) applies. A child taken by § 340 warrant and delivered to a social worker is within § 306(a)(1) custody, so the county must conduct the broad inquiry (court follows Delila D. and rejects Robert F./Ja.O.) |
| Whether the agency in this case conducted a proper, adequate, and duly diligent ICWA inquiry and documented efforts per rule 5.481(a)(5) | Agency: Inquiry was sufficient — mother provided tribal leads, notices were sent, prior dependency had found ICWA inapplicable, and agency interviewed relatives on the maternal side | Parents: Agency failed to question or document inquiry of numerous identified extended relatives (agency listed 48 relatives and had addresses for 44) and made no adequate documented effort to contact them | Held: Agency failed to perform and document an adequate inquiry/due diligence. The error was prejudicial; conditional reversal and limited remand ordered for compliance with § 224.2 and rule 5.481 |
Key Cases Cited
- In re Robert F., 90 Cal.App.5th 492 (Cal. Ct. App. 2023) (held § 224.2(b) not triggered for children removed by § 340 warrant; relied on in agency’s defense; later reviewed)
- In re Ja.O., 91 Cal.App.5th 672 (Cal. Ct. App. 2023) (followed Robert F.; held broad § 224.2(b) inquiry not required for § 340 warrant removals)
- In re Delila D., 93 Cal.App.5th 953 (Cal. Ct. App. 2023) (concluded § 224.2(b) applies to children taken by § 340 warrants and delivered to the department; court here follows this view)
- In re K.H., 84 Cal.App.5th 566 (Cal. Ct. App. 2022) (explained duties of inquiry, documentation, and remedial nature of ICWA-related statutory obligations)
- In re E.C., 85 Cal.App.5th 123 (Cal. Ct. App. 2022) (held agency’s inadequate ICWA inquiry can require remand; discussed due diligence and prejudice)
- In re Adrian L., 86 Cal.App.5th 342 (Cal. Ct. App. 2022) (concurring opinion provided reasoning later adopted by Robert F. and Ja.O.; argued § 224.2(b) does not cover § 340 warrant removals)
- In re Benjamin M., 70 Cal.App.5th 735 (Cal. Ct. App. 2021) (discussed term usage and background on ICWA inquiry issues)
- In re Isaiah W., 1 Cal.5th 1 (Cal. 2016) (California Supreme Court discussion of ICWA’s purpose and notice requirements)
- In re A.R., 11 Cal.5th 234 (Cal. 2021) (explained prejudice standard and that parents are not burdened with agency’s ICWA duties)