99 Cal.App.5th 1062
Cal. Ct. App.2024Background
- Minor child, Samantha F., was removed from parental custody by the Riverside County Department of Public Social Services (the Department) via protective custody warrant due to concerns including parental substance abuse and domestic violence.
- Both parents denied Indian ancestry; the court record does not indicate the Department asked extended family about possible Indian heritage.
- Samantha was placed with her paternal grandmother, and various paternal relatives attended court hearings.
- The juvenile court terminated Father’s parental rights after approximately a year of reunification services.
- Father appealed, arguing (1) the Department failed its initial ICWA inquiry duty, and (2) he was wrongly denied an evidentiary hearing on his section 388 petition (request for reinstatement of reunification services).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| ICWA initial inquiry—duty to ask extended family if child removed by warrant | Father: Department’s ICWA duty included inquiry of extended family regardless of removal method | Department: Only required when removed without a warrant | Held for Father: Duty to inquire of extended family applies regardless of removal method; Department's inquiry was insufficient, requiring reversal and remand |
| Denial of evidentiary hearing on section 388 petition | Father: Denied right to present evidence on changed circumstances | Department: Court had discretion to summarily deny and no hearing required | Held for Father: Summarily denying without hearing and opportunity to present evidence violated due process; must remand for hearing |
| Interpretation of "temporary custody" versus "protective custody" | Father: Terms are overlapping; removal by warrant also leads to temporary custody | Department: Only children removed without warrant are in temporary custody | Held for Father: Statutes, regulations, and legislative history indicate no intent to differentiate initial inquiry duty by removal method |
| Application of federal ICWA law | Father: Federal law supports inquiry of extended family in all pre-petition removals | Department: Federal guidance only applies to warrantless removals | Held for Father: No distinction in federal law; all pre-petition removals are emergency removals triggering the same inquiry duties |
Key Cases Cited
- In re Benjamin M., 70 Cal.App.5th 735 (Cal. Ct. App. 2021) (clarifies initial ICWA inquiry duties and harmless error analysis)
- In re D.F., 55 Cal.App.5th 558 (Cal. Ct. App. 2020) (establishes affirmative, continuing ICWA inquiry duties)
- In re Lesly G., 162 Cal.App.4th 904 (Cal. Ct. App. 2008) (due process requires evidentiary hearing once a prima facie section 388 showing is made)
- In re S.J., 167 Cal.App.4th 953 (Cal. Ct. App. 2008) (section 388 petition standards explained)