90 Cal.App.5th 492
Cal. Ct. App.2023Background
- In Oct 2019 DPSS received abuse allegations against Father; Mother had been incarcerated since at least 2015.
- DPSS obtained a juvenile court protective custody warrant under Welfare & Institutions Code §340; Robert was removed after Father’s arrest.
- DPSS filed a §300 petition; Father and later Mother denied any Indian ancestry; Father completed an ICWA-020.
- The juvenile court detained Robert, ordered continued ICWA inquiry, later found ICWA did not apply, and removed the child from parental custody.
- DPSS placed Robert with paternal relatives; the record does not show DPSS asked extended family about Indian ancestry.
- Mother appealed termination of parental rights, arguing DPSS failed its initial ICWA inquiry by not asking extended family members under Welf. & Inst. Code §224.2(b).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DPSS violated its initial ICWA inquiry duty by not asking extended family members under §224.2(b) | Mother: §224.2(b) required DPSS to ask extended family about Indian ancestry and it failed to do so. | DPSS: §224.2(b) applies only when a child is placed in temporary custody under §306 (warrantless emergency removals); Robert was removed via a §340 protective custody warrant, so §224.2(b) was not triggered—only the general duties under §224.2(a) and (c) applied. | The court affirmed: §224.2(b)’s expanded duty to ask extended family applies only to §306 temporary (warrantless) custody; it does not apply to removals under §340, so DPSS did not fail its initial inquiry duty. |
Key Cases Cited
- In re Adrian L., 86 Cal.App.5th 342 (concurring opinion explaining §224.2(b) applies only to §306 warrantless temporary custody)
- In re Ricky R., 82 Cal.App.5th 671 (describing the duty of initial and further ICWA inquiry)
- In re Benjamin M., 70 Cal.App.5th 735 (noting that a termination order is necessarily premised on a current ICWA determination)