In re Adrian L. ( 2022 )

Filed 12/14/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re ADRIAN L., B318627
a Person Coming Under the (Los Angeles County
Juvenile Court Law. Super. Ct. No. 19CCJP01922)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
SUSIE R.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Robin R. Kesler, Judge Pro Tempore. Affirmed.
Emery El Habiby, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Sally Son, Deputy County
Counsel, for Plaintiff and Respondent.
_____________________
Susie R. (Mother) appeals from the juvenile court order
terminating her parental rights to her child Adrian L. pursuant
to Welfare and Institutions Code section 366.26.1 She contends
the Los Angeles County Department of Children and Family
Services (DCFS) did not comply with its duty under section 224.2,
subdivision (b) to inquire of extended family members, including
maternal grandmother, paternal grandmother, and paternal
aunt, regarding Adrian’s potential status as an Indian child as
defined in the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C.
§ 1901 et seq.). Thus, she argues, DCFS did not “adequately
1 Subsequent unspecified statutory references are to the
Welfare and Institutions Code.
Mother’s notice of appeal and the introduction of her
opening brief state she also appeals the juvenile court’s order
denying her section 388 petition. Because Mother does not
provide any argument relating to this order, however, the issue
has been waived on appeal. (Nelson v. Avondale Homeowners
Assn. (2009) 172 Cal.App.4th 857, 862 [“Appellate briefs must
provide argument and legal authority for the positions taken.
‘When an appellant fails to raise a point, or asserts it but fails to
support it with reasoned argument and citations to authority, we
treat the point as waived’ ”]; In re Marriage of Falcone & Fyke
(2008) 164 Cal.App.4th 814, 830 [“We are not bound to develop
appellants’ arguments for them. [Citation.] The absence of
cogent legal argument or citation to authority allows this court to
treat the contentions as waived”].)
2
investigate[ ]” Adrian’s Indian status, and we should reverse the
juvenile court’s order terminating Mother’s parental rights and
remand the matter for ICWA compliance.
DCFS argues we should hold that any error in failing to
interview extended family members was harmless because the
record does not demonstrate that any such inquiry would bear
meaningfully on the question of whether Adrian is an Indian
child.2
In light of the facts in the record, which include the
parents’ denials of Indian affiliation, as well as extensive efforts
by Mother, Mother’s counsel, extended family members, and
minor’s counsel, to have Adrian placed with the extended family
members, we conclude additional inquiry would not have yielded
information that was likely to bear meaningfully on the question
of whether Adrian is an Indian child. Accordingly, any failure to
inquire of extended family members was harmless. We thus
affirm.
2 DCFS also argues substantial evidence supports the
juvenile court’s determination that ICWA did not apply to
Adrian. Because we affirm on the basis that any ICWA inquiry
error was harmless, we do not consider this alternative
argument.
3
FACTUAL AND PROCEDURAL BACKGROUND3
A. Petition and Non-detention
In February 2019, Mother, newborn Adrian, and maternal
grandmother resided together in Duarte, California. Adrian L.
Sr. (Father), lived in Las Vegas, Nevada.
On February 13, 2019, DCFS received a referral relating to
Adrian. The referral concerned Mother’s history of substance
abuse and her failure to reunify with Adrian’s three older half-
siblings, who were dependents of the juvenile court and receiving
permanent placement services. On March 15, 2019, a foster care
provider finalized adoption of these siblings.
On March 25, 2019, DCFS filed a petition on behalf of
Adrian pursuant to section 300, subdivisions (b)(1) and (j).
At the March 26, 2019, detention hearing, the juvenile
court found a prima facie case that Adrian was a child described
under section 300 and, finding services were available to prevent
detention, ordered Adrian released to Mother under DCFS
supervision. The juvenile court also found Adrian Sr. to be the
presumed father.
B. Jurisdiction and Disposition
On May 15, 2019, the juvenile court held a combined
jurisdictional and dispositional hearing. At the hearing, the
juvenile court sustained an amended count under section 300,
subdivision (b)(1), relating to Mother’s substance abuse. It
3 This appeal turns on issues relating to the sufficiency of
DCFS’s ICWA inquiry. Thus, we provide only a brief summary of
the dependency proceedings and focus on facts relevant to the
ICWA inquiry.
4
ordered Adrian removed from Father’s custody and released to
Mother with the provision of family maintenance services.4
Through September 2020, Mother and Adrian moved
between maternal grandmother’s home and inpatient substance
abuse programs or sober living residences.
C. Proceedings Following Subsequent and
Supplemental Petitions and Detention
Adrian remained with Mother until October 2, 2020, when
the juvenile court granted DCFS’s request for an expedited
removal order pursuant to section 340, subdivision (b). DCFS
filed a subsequent petition alleging Mother had mental and
emotional problems, including suicidal ideation, as well as a
supplemental petition seeking foster placement due to Mother
testing positive for amphetamine and methamphetamine.
On October 9, 2020, the juvenile court ordered Adrian
detained from Mother. Additionally, it ordered DCFS to assess
the maternal grandmother, paternal grandmother, and paternal
aunt for placement.5 In the meantime, DCFS placed Adrian with
a foster mother.
On January 20, 2021, Mother entered a no contest plea,
and the juvenile court sustained allegations of suicidal ideation
4 Father did not receive family reunification services
because he was in jail at the time. Father, who died during the
pendency of the dependency proceedings, is not a party to this
appeal.
5 In January 2021, DCFS reported the paternal
grandmother and paternal aunt were not interested in caring for
Adrian because they were currently caring for Father’s other
children.
5
and recent substance abuse. The juvenile court ordered DCFS to
assess maternal grandmother for placement. The following day,
Mother reported to the social worker that she no longer wanted to
participate in a particular outpatient substance abuse program,
and she wanted a family member to adopt Adrian.
In an April 7, 2021, last minute information (LMI), DCFS
reported that Father died after he had been stabbed multiple
times at the maternal grandmother’s home in February 2021.
Mother was arrested for his homicide.
In the LMI, DCFS also reported its findings relating to
relative placement. DCFS recommended against placing Adrian
with maternal grandmother because she had allowed Father to
have unmonitored contact with Adrian in violation of court orders
and was not forthcoming about Father’s whereabouts. Also, the
maternal uncles who lived in maternal grandmother’s home
hosted parties, which had the effect of triggering Mother to
relapse into drug use. Further, maternal grandmother worked
full time, and thus maternal uncles would have had to care for
Adrian. The social worker noted she had observed one of the
maternal uncles “high” and smelling of marijuana.
On April 7, 2021, the juvenile court ordered DCFS to
interview Mother, maternal grandmother, and maternal uncle
about Adrian’s placement and to assess placement of Adrian
“with any appropriate relative.” It also ordered monitored
visitation for maternal grandmother and a maternal uncle.
In a May 18, 2021, LMI, DCFS reported its most recent
findings relating to relative placement. Mother wanted Adrian
placed with the same legal guardian with whom Adrian’s two
minor half-siblings were placed. Maternal grandmother and
maternal uncle renewed their desire to have Adrian placed with
6
them. Also, a paternal aunt, Veronica G. (Veronica), who lived
with paternal grandparents, had visited Adrian since his birth,
and had acted as a monitor for Adrian’s visits with Father,
sought to have Adrian placed with her.6 DCFS also reported that
another paternal aunt, Claudia M. (Claudia), expressed interest
in caring for Adrian, whom she had met for the first time at
Father’s funeral.
In July 2021, DCFS approved Veronica for placement.
Because she worked three jobs and had other children in the
home during the summer, Veronica was unable to commit to
taking Adrian to continued developmental assistance services
and could not immediately provide a date on which she would
begin to host him overnight. DCFS reported it would conduct a
further assessment relating to placement with Veronica. The
foster mother continued to express interest in having Adrian
placed with her.
At the August 5, 2021, six-month review hearing, the
juvenile court found Mother’s progress had not been substantial,
terminated family reunification services, and scheduled a section
366.26 permanency planning hearing.
On August 10, 2021, Mother filed a notice of intent to file a
writ petition contesting the juvenile court’s order scheduling a
section 366.26 hearing. Mother did not file the writ petition,
however, and it was deemed non-operative.
On September 10, 2021, minor’s counsel filed a walk-on
request with the juvenile court as well as a section 388 petition.
Minor’s counsel stated, “DCFS has stopped overnight visits with
6
Veronica had a criminal history, but she obtained an
exemption that would allow her to have Adrian placed with her.
7
the paternal aunt [Veronica], who I understood was moving
toward placement with the minor. I was not provided with an
explanation and ha[ve] since been in contact with the aunt, who
states she was not given an explanation and has been working
toward placement with the minor . . . . The child is in foster care
and is in need of a permanent plan that includes a relative before
the next court date if she is to be considered.” Minor’s counsel
argued, “[s]ection 361.3 provides that preferential consideration
be given to relative placements.” Minor’s counsel requested that
the juvenile court, “[r]einstate overnight visits and placement
assessment for the paternal aunt.”
On October 29, 2021, Veronica sent a letter to the juvenile
court, challenging DCFS’s characterization of her lack of ability
and interest in providing a home to Adrian.
In a report filed November 2, 2021, DCFS repeated its
reasons for concluding that maternal grandmother’s home was
not a good option for placement. As to Veronica, DCFS reported
she would request time off from work to ensure Adrian’s needs
were met. However, she was unwilling to take Adrian to visit
maternal relatives or Mother in jail. DCFS concluded that,
notwithstanding Veronica’s current commitment to provide all
the required care for Adrian, Adrian, who had special
developmental needs, “would not receive the same committed and
detailed care” in Veronica’s home as he did with the foster mother
with whom he had lived since October 2020. Moreover, Adrian’s
doctor reported concern that Adrian would “regress” if removed
from the caregiver and placed with Veronica. Thus, DCFS
recommended Adrian remain placed with the foster mother.
On November 4, 2021, minor’s counsel withdrew the section
388 petition.
8
On November 24, 2021, Mother’s counsel filed a section 388
petition, noting her successful completion of multiple programs.
She requested that Adrian reside with the maternal grandmother
while Mother remained incarcerated or, in the alternative, that
Mother’s family reunification services be reinstated.
On November 29, 2021, the parties appeared before the
juvenile court for the section 366.26 hearing. At that time, the
juvenile court denied Mother’s section 388 petition without a
hearing on the basis that Mother did not present new evidence or
changed circumstances. The juvenile court also denied a pro se
section 388 petition filed by Claudia, who continued to request
that Adrian be placed with her. The juvenile court continued the
section 366.26 hearing to February 7, 2022.
On February 7, 2022, the juvenile court found Adrian was
adoptable and no exception to termination of parental rights
applied and terminated parental rights to Adrian.
D. ICWA Proceedings
On March 25, 2019, DCFS filed an Indian Child Inquiry
Attachment form with the original section 300 petition. DCFS
reported it had inquired of Mother as to any possible Indian
ancestry on February 19, 2019, and Mother denied any such
ancestry.
On March 26, 2019, Mother denied Indian ancestry on her
parental notification of Indian status (ICWA-020) form.7 At the
7 The ICWA-020 form advises parents, “If you get new
information that would change your answers, you must let your
attorney, all the attorneys on the case, and the social worker . . .
know immediately and an updated form must be filed with the
court.”
9
detention hearing that day, the juvenile court asked Mother
whether Father had any Indian heritage. Mother responded,
“No.” The juvenile court found no reason to know ICWA applied
as to Mother and deferred the determination of ICWA status for
Father’s appearance.
On October 9, 2020, Father’s counsel executed an ICWA-
020 form on Father’s behalf. Reflected on that form is Father’s
denial that Adrian had Indian ancestry. On the same day,
Father and his counsel were present in court. The juvenile court
reviewed Father’s ICWA-020 form out loud, noting Father
indicated “no Indian ancestry as far as he knows.” Neither
Father nor his counsel corrected the juvenile court.
On January 20, 2021, the court ordered a case plan for each
parent, which included a checked box indicating that the juvenile
court found ICWA did not apply to Mother or to Father.8
On November 29, 2021, the juvenile court found ICWA did
not apply to the case.
On February 14, 2022, Mother filed a timely notice of
appeal.
DISCUSSION
The juvenile court and DCFS “have an affirmative and
continuing duty to inquire whether a child for whom a [section
300] petition . . . has been filed, is or may be an Indian child.”9
8 Father’s death occurred in February 2021.
9 An “Indian child” is an unmarried person under 18 years
of age who is (1) a member of a federally recognized Indian tribe
or (2) is eligible for membership in a federally recognized tribe
and is the biological child of a member of a federally recognized
10
(§ 224.2, subd. (a).) Additionally, section 224.2, subdivision (b)
states, that “[i]f a child is placed into the temporary custody of a
county welfare agency pursuant to [s]ection 306 . . . the county
welfare department . . . has a duty to inquire whether that child
is an Indian child. Inquiry includes, but is not limited to, asking
the child, parents, legal guardian, Indian custodian, extended
family members, others who have an interest in the child, and
the party reporting child abuse or neglect, whether the child is, or
may be, an Indian child and where the child, the parents, or
Indian custodian is domiciled.”10
Mother argues that DCFS breached its duty of inquiry
under section 224.2, subdivision (b), to inquire of extended family
members “like the maternal grandmother, paternal grandmother,
and paternal aunt whether Adrian might have Indian ancestry.”
She contends that the failure to conduct this “first-step inquiry”
was prejudicial.
We disagree. As our prior decisions make clear, DCFS’s
failure to inquire of extended family members does not result in
automatic reversal. (See In re A.C. (2022) 75 Cal.App.5th 1009;
tribe. (25 U.S.C. § 1903(4) & (8); see § 224.1, subd. (a) [adopting
federal definitions], subd. (b) [expanding the age range stated in
the federal definition to include persons over 18, but under 21,
years of age].)
10 Under ICWA, the term “extended family member” is
“defined by the law or custom of the Indian child’s tribe or, in the
absence of such law or custom, shall be a person who has reached
the age of eighteen and who is the Indian child’s grandparent,
aunt or uncle, brother or sister, brother-in-law or sister-in-law,
niece or nephew, first or second cousin or stepparent.” (25 U.S.C.
§ 1903(2).)
11
In re S.S. (2022) 75 Cal.App.5th 575; In re Darian R. (2022) 75
Cal.App.5th 502.) Instead, we must examine the record and
reverse or remand only if that review shows prejudice because
there was “information that was likely to bear meaningfully upon
whether the child is an Indian child.” (In re Darian R., supra, at
p. 509, quoting In re Benjamin M. (2021) 70 Cal.App.5th 735,
744.)
The appellate record does not demonstrate that inquiring of
maternal grandmother, paternal grandmother, or paternal aunt
would have yielded information likely to bear meaningfully on
the court’s ICWA determination.
Mother had at least three opportunities to advise the
juvenile court that Adrian was possibly an Indian child. First,
DCFS interviewed Mother pre-petition about Adrian’s possible
Indian heritage. Second, Mother also filled out an ICWA-020
form prior to her first court appearance. Although the only box
on the form that Mother checked stated, “I have no Indian
ancestry as far as I know,” she opted not to check other boxes on
the form which inquired (1) if she was a member or eligible for
membership in any Indian tribe, (2) if Adrian was a member or
eligible for membership in any Indian tribe, and (3) if Mother’s
parents, grandparents or other lineal ancestors is or were
members of any Indian tribe.11
11 We emphasize this because the test for whether ICWA
applies does not turn on whether a child has “Indian ancestry,”
although that is often used as a shorthand reference for the
subject of factual inquiries that may bear on the ultimate
question whether a child is or may be an “Indian child.” Our
colleagues in Division Three recently made the point succinctly in
12
Third, the juvenile court asked Mother whether Father had
any Indian ancestry. In each instance, Mother denied any Indian
affiliation.
On the day of his first appearance, Father also filed an
ICWA-020 form in which he denied any Indian ancestry. When
the juvenile court noted Father’s denial in court, Father and his
counsel did not correct the juvenile court.
The existence of parental denials of Indian ancestry,
including denials on Judicial Council forms, does not, standing
alone, establish a lack of prejudice. We consider such denials
along with the rest of the record to determine if the failure to
In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1009 (“it is
important to note that ‘ICWA does not apply simply based on a
child or parent’s Indian ancestry.’ [Citation.] Instead, the
‘definition of “Indian child” ’ is ‘based on the child’s political ties
to a federally recognized Indian Tribe, either by virtue of the
child’s own citizenship in the Tribe, or through a biological
parent’s citizenship and the child’s eligibility for citizenship’ ”).
The point is nuanced but particularly salient in light of the
current equal protection challenge to ICWA pending before the
United States Supreme Court, in which the parties are sharply
divided on the question of whether ICWA makes impermissible
racial classifications or permissible distinctions based on political
affiliations. (See Brackeen v. Haaland (5th Cir. 2021) 994 F.3d
249, cert. granted Feb. 28, 2022, No. 21-376, ___U.S. ___ [142
S.Ct. 1205, 212 L.Ed.2d 215]; compare brief for petitioner State of
Texas (May 26, 2022) 2022 WL 1785628 at p. *19 [“ICWA violates
the Constitution’s equal-protection guarantee by categorizing
children based on genetics and ancestry”] with Merits Brief for
the Federal Parties (Aug. 1, 2022) 2022 WL 3449156 at p. *61
[“whether a child is an ‘Indian child’ under ICWA[ citation], turns
on the child’s connection to an Indian tribe—the paradigmatic
example of a ‘political rather than racial’ classification”].)
13
make ICWA inquiries of other family members deprived the
juvenile court of information “likely to bear meaningfully upon
whether the child is an Indian child.” (In re Darian R., supra, 75
Cal.App.5th at p. 509.)
Here, the record does not disclose a reason to conclude that
inquiring of maternal grandmother, paternal grandmother, or
paternal aunt would have yielded different information. Mother
and Father were close to their respective families. Mother and
(to a lesser extent) Father resided with maternal grandmother
and maternal uncles at various times throughout the
proceedings. Father maintained a relationship with his sister,
Veronica, who also lived with paternal grandparents as well as
Father’s two other children. Thus, it is unlikely maternal
grandmother, paternal grandmother, or paternal aunt had
knowledge of Adrian’s possible tribal affiliation superior to
Mother’s and Father’s disclaimer of any such ancestry. (Cf. In re
A.C., supra, 75 Cal.App.5th at p. 1016 [where Mother herself had
been a product of foster care and “may not have known her
cultural heritage”]; In re Y.W. (2021) 70 Cal.App.5th 542, 554
[remanding for ICWA inquiry in matter where appealing parent
was adopted and estranged from her parents].)
Further, as this court observed in In re S.S., supra, 75
Cal.App.5th 575, because preference is given to placing an Indian
child with extended family (25 U.S.C. § 1915(a) & (b)), there is a
strong incentive to bring to the juvenile court’s attention facts
suggesting that a child is an Indian child. (In re S.S., supra, at
p. 582.) Here, Mother and her counsel repeatedly (and
unsuccessfully) urged the juvenile court to place Adrian with
maternal grandmother. Further, paternal aunt, Veronica (with
whom paternal grandparents lived), engaged in significant efforts
14
to have Adrian placed with her. Minor’s counsel, to some extent,
aided Veronica in this endeavor, arguing to the juvenile court
that the dependency statutes favor placement with relatives. Yet
neither Mother, her attorney,12 maternal grandmother, Veronica,
or minor’s counsel indicated that Adrian may be an Indian child.
That they did not so do implies the extended family members are
unaware of facts that would bear meaningfully upon the issue.
Although In re S.S., supra, 75 Cal.App.5th at page 582
focused on the incentive to bring forth information regarding a
child’s potential status as an Indian child based on the placement
preference for extended family members, there are other
incentives for a parent and the parent’s relatives to bring ICWA
information to the attention of the court that also warrant
consideration in connection with our harmless error assessment.
Of particular relevance here is the fact that “[i]n cases in
which the ICWA applies, the juvenile court cannot order that the
Indian child be placed in foster care unless it finds by clear and
convincing evidence that the evidence, including expert
testimony, establishes that continued custody by the parent or
12 Los Angeles County local court rule 7.17 requires
parents’ attorneys to ask their clients whether they have a reason
to believe their child is an Indian child and to make every effort
to assist in confirming the child’s Indian status. (Super. Ct. L.A.
County, Local Rules, rule 7.17(a), (e)(3).) Moreover, the rule
requires parents’ counsel to “have a complete familiarity with the
facts of the case by reviewing the court file.” (Id., rule 7.17(e)(5).)
Thus, we may reasonably infer that Mother’s attorney would
have been aware of the placement preferences for Indian children
and motivated to assist in Mother’s efforts to have Adrian placed
with relatives. This lends further support to our conclusion that
Mother fails to show prejudice.
15
Indian custodian is likely to cause the child serious emotional or
physical damage [25 U.S.C. § 1912(e)]. This finding must be
made at the disposition hearing.” (Seiser & Kumli, 1 Cal.
Juvenile Courts Practice & Procedure (2022) § 2.125; see In re
Austin J. (2020) 47 Cal.App.5th 870, 882.) Thus, in 2021, when
Mother was facing the prospect that the court would consider
removing Adrian from her care at the disposition hearing, she
would have had the benefit of this higher standard of proof if
there were “reason to know” Adrian was an Indian child.13
Additionally, when termination of parental rights is sought,
the evidence, including expert testimony, must establish beyond
a reasonable doubt that the continued custody of the Indian child
by the parent or Indian custodian is likely to result in serious
emotional or physical damage to the child. (25 U.S.C. § 1912(f);
§ 366.26, subd. (c)(2)(B)(ii).) California requires this finding
supporting the termination of parental rights be made “at the
hearing terminating parental rights.” (§ 366.26, subd.
(c)(2)(B)(ii).) This enhanced burden of proof that DCFS would
have faced if there had been reason to know Adrian was an
Indian child, provided additional incentive for Mother and her
family members to bring forward information bearing on whether
Adrian was an Indian child.
In sum, our review of the record as a whole does not
disclose that unquestioned extended family members were likely
to have had information that would have borne meaningfully on
13“When there is reason to know that the child is an
Indian child, the court shall treat the child as an Indian child
unless and until the court determines . . . that the child does not
meet the definition of an Indian child as used in [s]ection 224.1
and the federal [ICWA].” (§ 224.2, subd. (i)(1).)
16
whether Adrian is an Indian child. Accordingly, any ICWA
inquiry error under section 224.2, subdivision (b) was harmless.
DISPOSITION
The juvenile court’s order is affirmed.
CERTIFIED FOR PUBLICATION
KELLEY, J.*
We concur:
CHANEY, J.
BENDIX, Acting P. J.
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
17
KELLEY, J., Concurring.
I concur in the majority opinion which concludes that any
Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et
seq.) inquiry error in this case is harmless because it did not
prejudice the juvenile court’s ultimate finding that ICWA did not
apply. I write separately because I conclude that DCFS did not
in fact fail to make statutorily required ICWA inquiries.
The foundation of Susie R.’s (Mother) appeal is her
contention that the Los Angeles County Department of Children
and Family Services (DCFS) was required to interview extended
family members about Adrian L.’s potential Indian status under
Welfare and Institutions Code1 section 224.2, subdivision (b).
The subdivision states, “If a child is placed into temporary
custody of a county welfare department pursuant to [s]ection 306
. . . , the county welfare department . . . has a duty to inquire
whether that child is an Indian child. Inquiry includes, but is not
limited to, asking . . . extended family members. . . .” (Ibid.)
Mother claims this error, which in her view occurred at the outset
of the case in 2019, and thereafter remained uncured,
undermined the juvenile court’s subsequent decisions predicated
on a finding that ICWA did not apply, including the ultimate
order issued on February 7, 2022, terminating parental rights.
Mother’s contention that DCFS violated section 224.2,
subdivision (b) is based on a reading of that provision that is
inconsistent with the plain language of the text. It also conflicts
with the Legislature’s express rejection of language that would
1Subsequent unspecified statutory references are to the
Welfare and Institutions Code.
have supported Mother’s contention that DCFS had a duty to ask
extended family members about Indian ancestry under the
circumstances present in this case. Finally, Mother’s claim of
error is inconsistent with the federal ICWA guidance upon which
our Legislature modeled the narrower ICWA inquiry duty it
created in section 224.2, subdivision (b).2
To begin the analysis, it is helpful to emphasize a few
aspects of the procedural history of this case. During DCFS’s
initial investigation, it did not remove Adrian from his parents.
Nor did it seek to detain him when it filed the original section
300 petition. The juvenile court conducted a detention hearing on
March 26, 2019, and did not detain him from Mother at that
time. The court took jurisdiction over the child based on Mother’s
waiver at a later hearing held on May 15, 2019. Yet, throughout
these early proceedings in the juvenile court, and then for
another year thereafter, Adrian remained in Mother’s custody.
On October 2, 2020, DCFS sought an expedited ruling on
its application for an order authorizing removal of Adrian
pursuant to the procedures for obtaining a protective custody
warrant in section 340, subdivision (b).3 The juvenile court
ultimately issued the requested protective custody warrant.
2 Mother and DCFS have submitted supplemental letter
briefs addressing the statutory construction issues in this case in
response to our invitation to do so. Both Mother and DCFS state
section 224.2, subdivision (b) requires DCFS to ask extended
family members about a child’s Indian status no matter how the
child came into DCFS’s temporary custody.
3 Section 340, subdivisions (a) and (b) permit the juvenile
court to issue a protective custody warrant as follows:
2
Why do these facts matter in resolving the ICWA inquiry
question in this case? They matter because the statute we are
asked to apply very clearly says that they matter.
A. Under the Plain Language of Section 224.2,
Subdivision (b), There Was No Requirement to
Question Extended Family Members
The analysis begins with the statutory language. Section
224.2, subdivision (b) provides as follows: “If a child is placed
into the temporary custody of a county welfare department
pursuant to [s]ection 306 . . . , the county welfare department . . .
has a duty to inquire whether that child is an Indian child.
Inquiry includes, but is not limited to, asking the child, parents,
legal guardian, Indian custodian, extended family members,
others who have an interest in the child, and the party reporting
child abuse or neglect, whether the child is, or may be, an Indian
“(a) Whenever a petition has been filed in the juvenile court
alleging that a minor comes within [s]ection 300 and praying for
a hearing on that petition, or whenever any subsequent petition
has been filed praying for a hearing in the matter of the minor
and it appears to the court that the circumstances of his or her
home environment may endanger the health, person, or welfare
of the minor, or whenever a dependent minor has run away from
his or her court-ordered placement, a protective custody warrant
may be issued immediately for the minor.” “(b) A protective
custody warrant may be issued without filing a petition under
[s]ection 300 if the court finds probable cause to support all of the
following: [¶] (1) The child is a person described in [s]ection 300.
[¶] (2) There is a substantial danger to the safety or to the
physical or emotional health of the child. [¶] (3) There are no
reasonable means to protect the child’s safety or physical health
without removal.”
3
child and where the child, the parents, or Indian custodian is
domiciled.” (Italics added.)
Section 306 provides in relevant part: “(a) Any social
worker in a county welfare department, . . . while acting within
the scope of his or her regular duties under the direction of the
juvenile court and pursuant to subdivision (b) of [s]ection 272,
may do all of the following: [¶] (1) Receive and maintain,
pending investigation, temporary custody of a child who is
described in [s]ection 300, and who has been delivered by a peace
officer.[4] [¶] (2) Take into and maintain temporary custody of,
without a warrant, a child who has been declared a dependent
child of the juvenile court under [s]ection 300 or who the social
worker has reasonable cause to believe is a person described in
subdivision (b) or (g) of [s]ection 300, and the social worker has
reasonable cause to believe that the child has an immediate need
for medical care or is in immediate danger of physical or sexual
abuse or the physical environment poses an immediate threat to
the child’s health or safety.” As caselaw recognizes, “[s]ection
306, subdivision (a)(2) empowers a social worker to take a child
into temporary custody under certain circumstances, without a
warrant, if the child is in immediate danger.” (M.L. v. Superior
Court (2009) 172 Cal.App.4th 520, 527.)
Despite the large number of recent appeals based on
DCFS’s failure to make inquiries of “extended family members,”5
4Section 305 also permits a peace officer to take temporary
custody of a child without a warrant in certain circumstances.
5In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1001
observed that in a 12-month period, at least 100 cases have been
remanded for such further inquiry after termination of parental
4
no case appears to have confronted the question of why the
prefatory clause in section 224.2, subdivision (b) should be
interpreted as meaning something other than what it plainly
says—that the inquiry obligation expressed in this subdivision is
triggered when the child is “placed into the temporary custody of
a county welfare department pursuant to [s]ection 306.” (Ibid.)
A fundamental tenet of statutory construction is that we
begin by examining the words of the statute. “[T]he language
used in a statute or constitutional provision should be given its
ordinary meaning, and ‘[i]f the language is clear and
unambiguous there is no need for construction, nor is it necessary
to resort to indicia of the intent of the Legislature (in the case of a
statute) or of the voters (in the case of a provision adopted by the
voters).’ [Citation.] To that end, we generally must ‘accord[ ]
significance, if possible, to every word, phrase and sentence in
pursuance of the legislative purpose,’ and have warned that ‘[a]
construction making some words surplusage is to be avoided.’
[Citation].” (People v. Valencia (2017) 3 Cal.5th 347, 357.) “ ‘ “ ‘If
the language is clear, courts must generally follow its plain
meaning unless a literal interpretation would result in absurd
consequences the Legislature did not intend.’ ” ’ ” (Brennon B. v.
Superior Court (2022) 13 Cal.5th 662, 673.) These principles
fully apply in dependency cases. “ ‘ “[I]f the statutory language is
not ambiguous, then we presume the Legislature meant what it
said, and the plain meaning of the language governs.” ’
rights. This does not include the cases where the juvenile court
orders were affirmed because the initial inquiry error was found
not to be prejudicial.
5
[Citations].” (Melissa R. v. Superior Court (2012) 207
Cal.App.4th 816, 822 (Melissa R.).)
Accordingly, the initial question in this case is: Was
Adrian “placed into the temporary custody [of DCFS] pursuant to
[s]ection 306” at the outset of the juvenile court proceeding?
Clearly, he was not. He was not removed from Mother at all
prior to, or in connection with, the filing of the original section
300 petition in March 2019. He remained in her care for more
than 17 months thereafter. Thus, the specific ICWA inquiry
prescribed by section 224.2, subdivision (b) was not implicated at
the outset of this case.6
But what about later when DCFS sought to remove Adrian
from Mother’s custody in October 2020? Was the duty to question
6 Of course, this does not mean that there was no duty of
ICWA inquiry. In fact, two provisions applied. First, the general
duty of inquiry specified in section 224.2, subdivision (a) was fully
applicable. That subdivision states, “The court, county welfare
department, and the probation department have an affirmative
and continuing duty to inquire whether a child for whom a
petition under [s]ection 300, 601, or 602 may be or has been filed,
is or may be an Indian child. The duty to inquire begins with the
initial contact, including, but not limited to, asking the party
reporting child abuse or neglect whether the party has any
information that the child may be an Indian child.” (Ibid.)
Significantly, this provision omits any mention of a specific
obligation to ask extended family members about ICWA, and
Mother does not assert there was a failure to undertake this
general inquiry under section 224.2, subdivision (a). Second,
section 224.2, subdivision (c) requires specific ICWA inquiries of
the “parties” and “participants” at the initial dependency
hearings. Again, Mother does not contend the juvenile court or
DCFS failed to conduct these inquiries.
6
“extended family members” described in section 224, subdivision
(b) triggered then? The answer also appears to be “no.”
There can be no dispute that Adrian was not placed into
DCFS’s temporary custody “pursuant to section 306” in October
2020. Instead, DCFS acted under an entirely different procedure
that authorizes the juvenile court to issue protective custody
warrants—namely, the warrant procedure pursuant to section
340, subdivision (b). Based upon a showing that Mother had
relapsed into methamphetamine use and demonstrated mental
instability in the form of suicidal thoughts, DCFS obtained a
court order that authorized removal of Adrian from Mother’s
custody. Section 306 played no role in this removal.
Placing a child into “temporary custody of a county welfare
department pursuant to [section] 306” is fundamentally different
from taking a child into “protective custody” under section 340.
Beyond the obvious feature that one process requires a court
order and the other does not, these provisions are found in
entirely different articles of the Juvenile law.7 The two
provisions also have different standards that must be met to
justify removal. Section 306 requires “imminent physical damage
or harm” before a child may be removed without a warrant (id.,
subd. (c)), but section 340 does not have such a strict standard
(id., subds. (a), (b)). Under section 340, a court may issue a
warrant without a prior filing of a section 300 petition where
“[t]here is a substantial danger to the safety or to the physical or
7Section 306 is part of article 7 which is entitled
“Dependent Children—Temporary Custody and Detention.”
Section 340 is part of article 8 which is entitled “Dependent
Children—Commencement of Proceedings.”
7
emotional health of the child.” (Id., subd. (b)(2), italics added.) It
thus requires neither imminent nor physical harm. As discussed,
post, this difference is significant under federal ICWA law
because a removal under section 306 is considered an “emergency
removal” under ICWA, but a removal pursuant to an order issued
under section 340 is not. This distinction illuminates why the
legislative choice to limit the scope of section 224.2, subdivision
(b) to situations where a child is placed in temporary custody of a
county welfare agency pursuant to section 306 aligns it with
federal ICWA guidance.
The limitation expressed in section 224.2, subdivision (b)
through the phrase when “a child is placed into the temporary
custody . . . pursuant to [s]ection 306” is the kind of express
statutory limitation that courts have not hesitated to find “clear
and unambiguous, rendering it unnecessary to resort to any
extrinsic aids.” (Melissa R., supra, 207 Cal.App.4th at p. 822.)
Melissa R. concerned section 361.5, subdivision (b)(10), which
permits a court to bypass a parent from reunification services
where the parent “had failed to reunify with [a] sibling or half
sibling after the sibling or half sibling had been removed from
that parent . . . pursuant to [s]ection 361.” (§ 361.5, subd. (b)(10);
Melissa R., supra, at p. 822.) In Melissa R., the sibling with
whom the parent had failed to reunify was removed from the
parent in Wisconsin, “not ‘pursuant to [s]ection 361.’ ” (Melissa
R., supra, at p. 822.) The court held that the limitation
“pursuant to section 361” was clear and had to be enforced. It
thus found section 361.5, subdivision (b)(10) did not apply.
(Melissa R., supra, at p. 822.) “The plain language of the statute
is limited to cases involving the removal of a sibling or half
sibling from the parent ‘pursuant to [s]ection 361.’ . . . The
8
Legislature did not include any language that would permit the
extension of this provision to a circumstance in which a sibling
was previously removed pursuant to the dependency law of
another jurisdiction, whether or not that law is comparable to
section 361.” (Ibid.) In addition to the clarity of the statutory
language being construed in Melissa R., the court also noted that
the Legislature “knew how to write in language” that would have
given the provision the broader scope that the agency sought to
read into it. (Id. at p. 823 [examples of the Legislature expanding
the scope of a statute to other jurisdictions by using language
such as “by any court of competent jurisdiction”], italics omitted.)
The same is true here. First, there are other provisions
regarding ICWA inquiry that are not restricted in the same
manner as section 224.2, subdivision (b). For example, the
general duty of inquiry in section 224.2, subdivision (a) applies to
every child “for whom a petition under [s]ection 300, 601, or 602
may be or has been filed.” In addition, the court-directed inquiry
prescribed in section 224.2, subdivision (c) applies to the “first
appearance in court of each party” and requires the court to ask
“each participant present” about the child’s possible status as an
Indian child. That the Legislature wrote these provisions, which
address the same subject (ICWA inquiries) as section 224.2,
subdivision (b), to apply in all dependency cases underscores that
the more limited expression the Legislature chose to use in
establishing the duty of initial inquiry in section 224.2,
subdivision (b) was a conscious decision.
Second, the Legislature’s intention is discernable both from
the clear words it chose to include in the statute as well as from a
broader formulation it removed from an earlier draft as the bill
made its way through the legislative process. Section 224.2,
9
subdivision (b) was added by Assembly Bill No. 3176 (2017-2018
Reg. Sess.) (Assembly Bill 3176), which became effective
January 1, 2019. As the legislative history shows, when the
language requiring the child welfare agency to “ask[ ] . . .
extended family members” about the child’s possible status as an
Indian child was added to Assembly Bill 3176, the prefatory
limitation “when the child is taken into temporary custody
pursuant to section 306” was also added. (Sen. Amend. to Assem.
Bill 3176 (2017-2018 Reg. Sess.) June 18, 2018, § 4 (the Senate
Amendments).) More significantly, the version of Assembly Bill
3176 that immediately preceded these two changes had provided
more broadly that the inquiry duty that the Legislature
ultimately set forth in section 224.2, subdivision (b) applied
“when a child is taken into temporary custody.” (Assem. Amend.
to Assem. Bill 3176 (2017-2018 Reg. Sess.) May 25, 2018, § 4.)
In other words, the Legislature expressly rejected having
the inquiry prescribed in section 224.2, subdivision (b) apply in
all cases when a child is placed into temporary custody and
limited such inquiry to cases where a child is placed in temporary
custody “pursuant to section 306.” A more clear record of
legislative choice is hard to imagine.
B. Other Aspects of the Legislative History Support the
Conclusion that DCFS Did Not Have an Initial Duty
to Inquire of Extended Family Members in This Case
Under Section 224.2, Subdivision (b)
1. Assembly Bill 3176 as Introduced
A number of legislative materials describe Assembly Bill
3176 as intended to “conform [California law] to changes to
federal regulations governing [ICWA].” (Assem. Com. on Human
Services Hearing Rep., Apr. 10, 2018, at p. 1 (April 10, 2018,
10
Report); Assem. Third Reading as amended May 25, 2018, at p. 1;
Conc. in Sen. Amends., as amended Aug. 22, 2018, at p. 1.)
Quoting the author of the bill, the April 10, 2018, Report stated,
“[This bill] simply seeks to change California law to comply with
Federal regulations.” (Id. at p. 9.) Notably the bill as introduced
did not mandate initial ICWA inquiries to include “extended
family members.” Rather it took an approach, consistent with
the stated purpose of the bill, of tracking provisions added by the
2016 federal ICWA regulations. (See id. at pp. 8-9; 25 C.F.R.
§ 23.107 [entitled “How should a State court determine if there is
reason to know the child is an Indian child”].)
These initial proposed revisions to California law focused
on expanding the scope of ICWA inquiry required at juvenile
court hearings. Thus, the bill, as it was introduced on
February 16, 2018, proposed to amend section 224.3,8
subdivisions (a) and (d) to state: “(a) The court, county welfare
department, and the probation department have an affirmative
and continuing duty to inquire whether a child is an Indian child
and shall so inquire on the record at any detention hearing,
disposition hearing, review hearing to terminate reunification
services, or selection and implementation hearing.” “(d) The
court shall ask each participant in an emergency, voluntary, or
involuntary child custody proceeding whether the participant
knows or has reason to know that the child is an Indian child.
The inquiry shall be made at the commencement of the
proceeding and all responses shall be on the record. The court
8In early versions of Assembly Bill 3176, the provisions
addressing ICWA inquiry were contained in section 224.3. Later
the Legislature moved these provisions to section 224.2.
11
shall instruct the parties to inform the court if they subsequently
receive information that provides evidence that the child is an
Indian child.”9 (Assem. Bill 3176 (2017-2018 Reg. Sess.) Feb. 16,
2018, § 5.)
In this initial version of Assembly Bill 3176, there was no
obligation of initial inquiry of “extended family members.” The
only reference to making inquiry of extended family members
was found in a provision that required “further inquiry” when
there was “reason to know” the child is an Indian child. (See
proposed § 224.3, subd. (c), part of Assem. Bill 3176 (2017-2018
Reg. Sess.) Feb. 16, 2018, § 5; see also former § 224.3, subd. (c)
added by Stats. 2006, ch. 838, § 31 and revised by Stats. 2018,
ch. 833, § 7, eff. Jan. 1, 2019.)
2. May 25, 2018, Amendments
On May 25, 2018, the Assembly amended Assembly Bill
3176. This version proposed adding a provision for an expanded
initial ICWA inquiry to what was then section 224.3, subdivision
9 As the Legislative Counsel’s Digest explained about the
initial version of the bill: “Under existing law, a court, a county
welfare department, and the probation department have an
affirmative and continuing duty to inquire whether a child is or
may be an Indian child in all dependency proceedings and in any
juvenile wardship proceeding if the child is at risk of entering
foster care or is in foster care.
“This bill would require those entities to inquire if a child is
or may be an Indian child on the record at specified hearings.
The bill would declare that the duty to inquire begins at the
earliest possible moment and would set forth specific steps a
social worker, probation officer, or court is required to take to
make that inquiry.” (Amend. in Assembly, Assem. Bill 3176, as
introduced Feb. 16, 2018, p. 2.)
12
(a). The amended provision stated: “When a child is taken into
temporary custody, the child welfare agency has a duty to
determine whether that child is an Indian child as defined by
[ICWA]. Inquiry starts by asking the child, the parents, legal
guardian, and Indian custodian whether the child is, or may be,
an Indian.”10 (Assem. Amend. to Assem. Bill 3176 (2017-2018
Reg. Sess.) May 25, 2018, § 4.)
Two things are notable about this version. First, it applied
to children “taken into temporary custody” without any limitation
based on how they were taken into temporary custody. Second, it
said nothing about asking “extended family members or others
with an interest in the child” about whether the child is or may
be an Indian child during this initial inquiry. Such inquiry was
limited to the “child, the parents, legal guardian and Indian
custodian.”
3. June 18, 2018, Senate Amendments to Assembly Bill
3176
What is now section 224.2, subdivision (b) did not become a
part of the bill until a set of amendments was offered in the
Senate on June 18, 2018. (Senate Amendments, supra, at § 4.)
These amendments did broaden the initial ICWA inquiry to
10 As the revised Legislative Counsel’s Digest explained
regarding the May 25, 2018, version of Assembly Bill 3716: “This
bill would provide that when a child is taken into temporary
custody the child welfare agency has a duty to determine whether
that child is an Indian child, as specified, and would set forth
specific steps a social worker, probation officer, or court is further
required to take in making an inquiry of a child who is the
subject of an Indian child custody proceeding.” (Assem. Amend.
to Assem. Bill 3176 (2017-2018 Reg. Sess.) May 25, 2018.)
13
include “extended family members,” but they also added the
limitation that became part of the bill, as it was ultimately
passed and signed by the Governor, that this specified inquiry
applied only to children “placed into the temporary custody of a
county welfare department pursuant to [s]ection 306.” (Ibid.)
There are several reasons to conclude that this was an
intentional limitation.
First, the June 18, 2018, Senate Amendments also
proposed to amend section 306 (the code provision providing for
warrantless temporary custody placements) so that it would
cross-reference the inquiry prescribed in section 224.2,
subdivision (b). (Senate Amendments, supra, § 10 [adding new
subdivision (b)].) However, it proposed no similar amendment to
section 340, which is the other provision in the Welfare and
Institutions Code that addresses the alternative process through
which a child may be placed into temporary custody pursuant to
a court order.
Second, by restricting an obligation to ask extended family
members about a child’s possible status as an Indian child to the
emergency situations covered by section 306 (authorizing
warrantless removals), the Legislature implemented a narrow
requirement of specific inquiry that paralleled federal guidelines
issued in 2016. (See U.S. Dept. of the Interior, Guidelines for
Implementing the Indian Child Welfare Act (Dec. 2016) p. 28
(BIA Guidelines)
[as of Dec. 12, 2022].)
The Senate Judiciary Committee Report on the bill as it
was amended on June 18, 2018, specifically references these BIA
Guidelines in commentary about the need for the legislation, and
14
several of the specific provisions added to the bill at this time
(including § 224.2, subd. (b)) track specific parts of these
guidelines, which makes them particularly relevant to
understanding the Legislature’s intent. (Sen. Judiciary Com.,
Rep. on Assem. Bill 3176 as amended June 18, 2018, at pp. 6-7;
see Gov. Code, § 9080, subds. (a), (d) [written background
material submitted to the committee may form evidence of
legislative intent]; Khan v. Los Angeles City Employees’
Retirement System (2010) 187 Cal.App.4th 98, 107, 113
[“ ‘Committee materials are properly consulted to understand
legislative intent, since it is reasonable to infer the legislators
considered explanatory materials and shared the understanding
expressed in the materials when voting to enact a statute’ ”].)11
In particular, Guideline C.7 recommends asking extended
family about a child’s Indian status in “emergency removal”
situations.12 It is entitled “Identifying Indian children in
emergency situations” and provides: “It is recommended that the
State agency ask the family and extended family whether the
child is a Tribal member or whether a parent is a Tribal member
11 The Senate Judiciary Committee Report concerning the
June 18, 2018, version of the bill states, “The Bureau of Indian
Affairs (BIA) promulgated new regulations that took effect on
December 12, 2016. . . . This bill updates various provisions of
the Welfare [and] Institutions Code that impact custody and
treatment of Indian children in an effort to bring state law into
compliance with new regulations that update the federal Indian
Child Welfare Act.” (Sen. Judiciary Com., Rep. on Assem. Bill
3176 as amended June 18, 2018, at p. 2.)
12In its supplemental letter brief DCFS asserts that the
BIA Guidelines do not include any provision for interviewing
extended family members. That is incorrect.
15
and the child is eligible for membership as part of the emergency
removal and placement process.” (BIA Guidelines at p. 28, italics
added.)
Several things are notable about this guidance. First, it
only recommends inquiry of extended family “as part of the
emergency removal and placement process” and does not suggest
that such inquiry is required in any other circumstance. Second
it places the responsibility on the state agency and not the court.
These two features are significant because there are other
specific provisions in the BIA Guidelines that address inquiries
that are to be made in all cases, including by the court at the
initial hearing, and those guidelines do not include any
recommendation to ask extended family members about the
child’s tribal affiliation or eligibility. (BIA Guidelines at pp. 9-10
[describing inquiries state courts are to make of each participant
at hearings].) Guideline C.7 thus has specific application to
emergency removals prior to court intervention.
The third salient feature of this guidance is that the BIA
Guidelines highlight the special concerns that arise when a state
official effectuates an emergency removal “without court
authorization” due to the existence of “imminent physical damage
or harm” to the child. Guideline C.2, which is entitled “Threshold
for removal on an emergency basis” provides important context
for understanding the scope of the guidance contained in
Guideline C.7. It states: “ICWA allows for removal of a child
from his or her parents or Indian custodian, as part of an
emergency proceeding only if the child faces ‘imminent physical
damage or harm.’ The Department [of the Interior] interprets
this standard as mirroring the constitutional standard for
removal of any child from his or her parents without providing
due process. [¶] As a general rule, before any parent may be
deprived of the care or custody of their child without their
16
consent, due process—ordinarily a court proceeding resulting in
an order permitting removal—must be provided. A child may,
however, be taken into custody by a State official without court
authorization or parental consent only in emergency
circumstances. Courts have defined emergency circumstances as
‘circumstances in which the child is immediately threatened with
harm,’ including when there is an immediate threat to the safety
of the child, when a young child is left without care or adequate
supervision, or where there is evidence of serious ongoing abuse
and the officials have reason to fear imminent recurrence. The
same standards and protections apply when an Indian child is
involved. And those standards and protections are reflected in
section 1922 of ICWA, which addresses emergency proceedings
involving Indian children.” (BIA Guidelines at pp. 23-24, fns.
omitted.)
Thus, the federal guidance for when extended family
members should be questioned about a child’s Indian status
describes precisely the circumstance that the California
Legislature targeted for the specific requirement it created in
section 224.2, subdivision (b) (i.e., that extended family members
are to be asked about a child’s potential Indian tribal affiliation
when a child is placed into temporary custody of a county welfare
agency, without a warrant under § 306).
That the Legislature intended to limit the duty of inquiry
to warrantless removals under section 306 in a fashion parallel to
the federal scheme is further evidenced by the fact that the
Legislature made no amendments to section 340, which
authorizes a court order to remove a child without a hearing
either before or after a petition under section 300 is filed and is
the alternative procedure for removing a child without a hearing.
17
This was not an oversight.13 As discussed, ante, the standards
for what must be shown to justify removal of a child under
sections 306 and 340 are different and a removal under section
340, with its lower standard, would not be an “emergency
removal” under federal law. Recognizing this, the Legislature in
section 306, subdivision (c) specified that a removal of an Indian
child (or a child there was “reason to know” was an Indian child)
“shall be considered an emergency removal under” federal law.
(§ 306, subd. (c).) It made no such declaration regarding
removals under section 340. In short, in crafting the narrow
inquiry duty in section 224.2, subdivision (b) that applies to
children removed pursuant to section 306, the Legislature was
13 In her supplemental letter brief, Mother argues that
removals under section 340 should be subject to the same inquiry
prescribed in section 224.2, subdivision (b) for section 306
removals because the text of section 340 references section 306.
This argument lacks merit. The only reference to section 306 in
section 340 is “[n]othing in this section is intended to limit a
social worker from taking into and maintaining temporary
custody of a minor pursuant to paragraph (2) of subdivision (a) of
[s]ection 306.” (§ 340, subd. (d)(2).) This provision simply
underscores that the two provisions are distinct and that the
existence of the removal-by-warrant provision in section 340 does
not obligate a county welfare agency to use that procedure
because the alternative process under section 306 remains
available if there is imminent physical harm.
18
simply creating a duty14 that tracked federal guidelines for
emergency removals.15
The immediate inquiry of the child’s extended family
members that the BIA Guidelines recommend and that section
224.2, subdivision (b) prescribes makes sense given the exigent
circumstances inherent in emergency removals, including the
14 Of course, by framing the inquiry described in section
224.2, subdivision (b) as a requirement, California does now
make mandatory something that federal law only recommends.
15 The California Legislature’s intent to model section
224.2, subdivision (b) on the BIA Guidelines also is apparent
from other amendments to section 306, which track the BIA
Guidelines in other respects concerning emergency removals. For
example, the Legislature amended section 306, subdivision (d) to
provide that where the social worker “knows or has reason to
believe” a child removed pursuant to subdivision (a) (i.e., in a
warrantless removal) is an Indian child who “resides or is
domiciled within a reservation of an Indian tribe that has
exclusive jurisdiction over child custody proceedings, as
recognized in [s]ection 1911 of [t]itle 25 of the United States
Code,” the agency must notify the tribe within the next working
day and provide the tribe with all relevant documentation
regarding the temporary custody of the child. (Ibid.) This
provision tracks the language of BIA Guideline C.7. (See BIA
Guidelines at p. 28 [“If the State agency believes that the child
may be an Indian child, it is recommended that it let the Tribe
know the child has been removed on an emergency basis, and
begin coordination with the Tribe regarding services and
placements” and “[i]f there is still uncertainty regarding who is
the Indian child’s Tribe, it is recommended that the State agency
continue to investigate the applicability of ICWA and document
[its] findings”].)
19
strict time limits for the agency’s action.16 Moreover, this
concern for promptly identifying and then protecting Indian
children who may be subject to the exclusive jurisdiction of their
tribes, explains why the inquiry the Legislature required of
extended relatives in section 224.2, subdivision (b) also includes
asking them “where the child, the parents or Indian child is
domiciled.” This latter inquiry is critical to the expeditious
resolution of the threshold issue of whether a child may be
subject to the exclusive jurisdiction of a tribe, which is an issue
that the BIA Guidelines emphasize.17
The third reason that the Legislature’s choice to make the
inquiry duty in section 224.2, subdivision (b) a narrow one should
be seen as intentional is that by the time of the Senate
16 See section 306, subdivision (d) (requiring if the social
worker has reason to know or believe a child resides or is
domiciled in a reservation of a tribe with exclusive jurisdiction
that notice be given to the tribe the “next working day”); section
306, subdivision (e) (if the social worker is unable to confirm that
the child is subject to the exclusive jurisdiction of an Indian tribe,
the juvenile court must be advised in the report prepared for the
detention hearing). Also, when these amendments to sections
224.2, subdivision (b) and 306 were proposed, the Legislature also
proposed to amend section 309 to require county welfare agencies
who receive custody of a child pursuant to section 306 to assess
any extended family member who requests emergency placement.
(Senate Amendments, supra, § 11 [amending § 309].)
17 “With limited exceptions, ICWA provides for Tribal
jurisdiction ‘exclusive as to any State’ over child-custody
proceedings involving an Indian child who resides or is domiciled
within the reservation of such Tribe.” (BIA Guidelines at p. 45,
citing 25 U.S.C. § 1911(a), fn. omitted.)
20
Amendments, Assembly Bill 3176 had been amended to include a
newly defined duty of “further inquiry” that included
“interviewing the parents, Indian custodian, and extended family
members” when there is “reason to believe that an Indian child is
involved.” (See Assem. Bill 3176 (2017-2018 Reg. Sess.) May 25,
2018, § 4 [proposed amended § 224.3, subd. (d)].) If in fact the
obligation to make inquiry of extended family members that the
Senate Amendments added in section 224.2, subdivision (b) was
meant to apply at the outset of every case (instead of being
limited to cases where a child is placed into temporary custody
pursuant to section 306) then this provision for “further inquiry”
would be rendered largely, if not entirely, redundant of an
obligation of initial inquiry that already was imposed by another
provision of the same bill. This counsels against the broader
interpretation of section 224.2, subdivision (b). (See Tuolumne
Jobs & Small Business Alliance v. Superior Court (2014) 59
Cal.4th 1029, 1037 [“ ‘ “ ‘Words must be construed in context, and
statutes must be harmonized, both internally and with each
other, to the extent possible.’ [Citation.] Interpretations that
lead to absurd results or render words surplusage are to be
avoided” ’ ”]; see also Code Civ. Proc., § 1858 [in construing a
statute, the court is “not to insert what has been omitted[ ] or to
omit what has been inserted; and where there are several
provisions or particulars,” is to adopt a construction “as will give
effect to all,” if possible].)
Fourth, none of the legislative reports makes mention of an
expansion of the duty of initial inquiry to include “extended
family members and others who have an interest in the child” in
every dependency case. (See Assem. Com. on Human Services,
Analysis of Assem. Bill 3176 (2017-2018 Reg. Sess.) as introduced
21
Apr. 2, 2018; Assem. Com. on Judiciary, Analysis of Assem. Bill
3176 (2017-2018 Reg. Sess.) as amended Apr. 11, 2018; Assem.
Com. on Appropriations, Analysis of Assem. Bill 3176 (2017-2018
Reg. Sess.) as amended Apr. 11, 2018; Assem. Off. of Research, 3d
reading analysis of Assem. Bill 3176 (2017-2018 Reg. Sess.) as
amended May 25, 2018; Sen. Com. on Judiciary, Analysis of
Assem. Bill 3176 (2017-2018 Reg. Sess.) as amended June 18,
2018; Sen. Com. on Appropriations, Analysis of Assem. Bill 3176
(2017-2018 Reg. Sess.) as amended June 18, 2018; Sen. Com. on
Appropriations, Analysis of Assem. Bill 3176 (2017-2018 Reg.
Sess.) as amended June 18, 2018; Sen. Rules Com., Off. of Sen.
Floor Analyses, 3d reading analysis of Assem. Bill 3176 (2017-
2018 Reg. Sess.) as amended Aug. 17, 2018; Sen. Rules Com., Off.
of Sen. Floor Analyses, 3d reading analysis of Assem. Bill 3176
(2017-2018 Reg. Sess.) as amended Aug. 22, 2018; Conc. in Sen.
Amends., Assem. Bill 3176 (2017-2018 Reg. Sess.) as amended
Aug. 22, 2018.) When the Legislature chose to create a duty of
inquiry that went beyond federal standards, as it did by adding
the requirement of “further inquiry” when there is “reason to
believe” a child may be an Indian child, the associated legislative
reports highlighted the fact. (See Assem. Com. on
Appropriations, Analysis of Assem. Bill 3176 (2017-2018 Reg.
Sess.) as amended Apr. 11, 2018, at p. 1 [“In this bill, California
has a higher standard for determining if a child may be an Indian
child and requires that further inquiry must be undertaken for
those children”]; Assem. Com. on Judiciary, Analysis of Assem.
Bill 3176 (2017-2018 Reg. Sess.) as amended Apr. 11, 2018, at
p. 10 [same].) If the Legislature had intended to exceed federal
standards by requiring inquiry of extended family members in
every case, then surely it would have been worth at least a
22
footnote in these reports. But there is no mention of such a
dramatic departure from federal law, which underscores that
there was no such legislative intent.
4. Resort to Other Canons of Statutory Construction Is
Unnecessary but Nonetheless Supports the Plain-
meaning Interpretation
Construing section 224.2, subdivision (b) more broadly than
expressed in the plain language of the statute cannot be justified
by contending that the statutory language must be “read in
context” (Titan Electric Corp. v. Los Angeles Unified School Dist.
(2008) 160 Cal.App.4th 188, 203) or read to avoid an
interpretation that is “contrary to the legislative intent apparent
in the statute” (Lungren v. Deukmejian (1988) 45 Cal.3d 727,
735), including its remedial nature (In re Ezequiel G., supra, 81
Cal.App.5th at p. 1018 (dis. opn. of Lavin, J.)).
Even considering context or the Legislature’s general intent
(including what some have said is the remedial nature of the
statute) does not change the outcome of the analysis of section
224.2, subdivision (b).18 The “context” that is relevant here is
that, in other sections of Assembly Bill 3176, the Legislature
expanded the required ICWA inquiries in order to achieve the
18 As the Supreme Court explained, we begin with the
principle that when language of a statute is clear “ ‘there is no
need for construction, nor is it necessary to resort to indicia of the
intent of the Legislature.’ ” (People v. Valencia, supra, 3 Cal.5th
at p. 357, quoting Lungren v. Deukmejian, supra, 45 Cal.3d at
p. 735; see Mason v. Department of Real Estate (2002) 102
Cal.App.4th 1349, 1354 [“While the statute is remedial and must
be construed broadly, we can neither disregard its plain language
nor add to its terms”].)
23
goal of bringing California’s ICWA process into conformity with
the 2016 federal regulations. (See In re M.W. (2020) 49
Cal.App.5th 1034, 1043 [describing that § 224.2, subd. (c) was
brought into conformity with 25 C.F.R. § 23.107(a) (2020);
§ 224.2, subd. (d) mirrors 25 C.F.R. § 23.107(c) (2020) and
§ 224.2, subd. (g) also mirrors 25 C.F.R. § 23.107(b) (2020)].)
There is nothing about construing the plain language of
section 224.2, subdivision (b) in the manner described in this
opinion that is inconsistent with this legislative context. Overall,
the package of reforms that the Legislature implemented through
Assembly Bill 3176 did expand the duties of ICWA inquiry in
California compared with the law in effect before the bill was
passed. These amendments generally tracked federal regulations
and guidance, but in some very specific instances, which the
Legislature highlighted in its reports, they expanded the duty of
inquiry. Choosing to follow the BIA Guidelines and constrain one
of the new inquiry provisions to apply only to cases where a child
was placed in temporary custody pursuant to section 306 is not
inconsistent with this context.
As the bill worked its way through the Legislature, another
provision on ICWA inquiry was also narrowed, so section 224.2,
subdivision (b)’s limited application cannot be dismissed as
anomalous or at odds with a supposed “general purpose” of
increasing duties of ICWA inquiry across the board. Specifically,
in the original bill, the inquiry duty that eventually became
operative in section 224.2, subdivision (c) required inquiry
whether the child is an Indian child “on the record at any
detention hearing, disposition hearing, review hearing to
terminate reunification services, or selection and implementation
hearing.” (Assem. Bill 3176 (2017-2018 Reg. Sess.) Feb. 16, 2018,
24
§ 5 [proposed § 224.3, subd. (a)].) However, as ultimately passed,
this obligation to inquire on the record was limited to “the first
appearance in court of each party.” (§ 224.2, subd. (c).) Just as it
would make no sense to interpret this provision to apply to all the
hearings mentioned in the original draft of Assembly Bill 3176 to
implement a perceived “general intent” of the Legislature, it
would make no sense to convert the duty of initial ICWA inquiry
in section 224.2, subdivision (b) to one that applies to every case.
It is also not appropriate to treat the second sentence of
section 224.2, subdivision (b),19 as a generic definition of
“inquiry” that the Legislature intended to govern all ICWA
inquiries, not just ones referenced in the immediately preceding
sentence, referring to section 306. First, the statute includes a
set of generally applicable definitions (§ 224.1), and if the
Legislature had intended this sentence to be prescriptive of what
must be done in every ICWA “inquiry” one would expect that the
term would have been defined as such in the generally applicable
definitions. Second, even if the second sentence of section 224.2,
subdivision (b) was intended to be broadly applicable but did not
warrant treatment as a formally defined term, it would surely
have been included in one of the inquiry provisions that applies
in every case (e.g., § 224.2, subd. (a)), rather than placing it
immediately following the narrow mandate of the first sentence
19 The sentence provides: “Inquiry includes, but is not
limited to, asking the child, parents, legal guardian, Indian
custodian, extended family members, others who have an interest
in the child, and the party reporting child abuse or neglect,
whether the child is, or may be, an Indian child and where the
child, the parents, or Indian custodian is domiciled.” (§ 224.2,
sub. (b).)
25
of section 224.2, subdivision (b).20 Third, Mother’s suggestion in
her supplemental letter brief that the inquiry prescribed in
section 224.2, subdivision (b) applies regardless of the manner in
which a child may be removed from her parents because ICWA
inquiry must be made as soon as practicable in all “ ‘Indian child
custody proceedings’ ” as defined in section 224.1, subdivision
(d)(1), ignores the language of section 224.2, subdivision (b) as
well as the history of its drafting and its alignment with the
narrow federal guidance upon which the Legislature modeled it.
It also ignores that the Legislature was quite clear when it
created inquiry provisions that apply in all cases (see § 224.2,
subds. (a) and (c)) but did not do so in the case of section 224.2,
subdivision (b). Fourth, as noted above, when the key sentence in
section 224.2, subdivision (b) was broadened (in the June 18,
2018, Senate Amendments), the immediately preceding sentence
was narrowed to make the provision applicable only when a child
was placed in temporary custody pursuant to section 306 rather
than whenever a child is “placed into temporary custody.”21
20 As discussed, post, the duty of inquiry in section 224.2,
subdivision (a) may require questioning extended family
members in particular circumstances. However, that provision,
which was in effect prior to the passage of Assembly Bill 3176,
had never been interpreted to require questioning extended
family members in every case. If the Legislature had understood
or intended it to have that scope, the amendments to section
224.2, subdivisions (b) and (c) would have been unnecessary.
21 Nor would it be proper to conclude that the Legislature’s
decision to describe “inquiry” in section 224.2, subdivision (b) as
simply errant drafting that can be ignored as an impediment to
realizing the Legislature’s true intent. Situating the narrow duty
26
5. The Plain-meaning Construction of the Statute Is Not
“Hypertechnical” and Neither Frustrates the Purpose
of ICWA nor Leads to “Absurd Results”
In a supplemental letter brief, DCFS implies that
interpreting section 224.2, subdivision (b) as not applying in the
instant case because Adrian was not removed pursuant to section
306 would be a “hyper-technical reading” that “does nothing to
further the spirit or purpose” of ICWA and “may lead to absurd
results.” I disagree.
First, describing the language of the statute as
“hypertechnical” is an obdurate framing of the statutory
construction issue. The limiting phrase “pursuant to section 306”
in section 224.2, subdivision (b) is neither complicated nor
obscure. It is a common statutory formulation of a type that
courts routinely apply just as they are written. (See, e.g., In re
Melissa R., supra, 207 Cal.App.4th at p. 822 [finding “ ‘pursuant
to [s]ection 361’ ” not ambiguous], italics omitted.) Second, DCFS
does not explicate what the “spirit [and] purpose” of ICWA might
be that would be impaired if section 224.2, subdivision (b) is
interpreted as the Legislature wrote it. As discussed, the
Legislature crafted section 224.2, subdivision (b) in a way that
included specific mandated inquiries to be made in the special
case of emergency removals and, in doing so, it closely tracked
the relevant federal guidance on emergency removals. Unless we
are prepared to deem the federal guidelines as in conflict with the
“spirit [and] purpose” of ICWA, then this critique of a narrow
of inquiry in this subdivision was a purposeful drafting choice for
the reasons discussed ante, and we should decline to presume
that the Legislature intended this description of “inquiry” to
apply more broadly, when the available indicia of its intent point
in the opposite direction.
27
interpretation of section 224.2, subdivision (b) must be rejected.
Third, construing section 224.2, subdivision (b) to mean exactly
what the provision says and in a manner that results in an
inquiry duty that maps precisely onto the recommended federal
guidance can hardly be “absurd.”22
6. The Effect of the California ICWA Compliance Task
Force Report
Several recent opinions construing section 224.2,
subdivision (b) broadly draw support for that interpretation from
certain statements in the 2017 California ICWA Compliance
Task Force, Report to the California Attorney General’s Bureau
of Children’s Justice (Task Force Report)
(as of Dec. 12, 2022).
(See, e.g., In re J.K. (2022) 83 Cal.App.5th 498, 506 [“Our
Legislature unanimously enacted [§] 224.2, [subd.] (b) after the
California ICWA Compliance Task Force . . . issued a report
advocating for the new law”]; In re Rylei S. (2022) 81 Cal.App.5th
309, 322 [“For this reason [referring to the Task Force Report’s
statements about parental ICWA inquiry], the Legislature in
22 As another appellate court has observed, it is actually
the alternative construction of section 224.2, subdivision (b)—one
that mandates the inquiry of a broad range of extended relatives
and “others who have an interest in the child” in every case—that
can lead to absurd results. (See In re Ezequiel G., supra, 81
Cal.App.5th at p. 1006 [“complying with the literal language of
the statute—that is, making an initial and further ICWA inquiry
of every member of a child’s extended family, including first and
second cousins, plus every other person who has an interest in
the child—is absurd at best and impossible at worst”].)
28
2018 added new [§] 224.2, [subd.] (b) . . . expressly mandating
that, from the outset, child protective agencies not limit their
investigation of a child’s possible Indian status to the child’s
parents”].) This attempt to use the Task Force Report as a basis
for inferring legislative intent regarding section 224.2,
subdivision (b) fails for two reasons.
First, there is no indication that any legislator, committee,
or other participant in the process of passing Assembly Bill 3176
was aware of the Task Force Report, much less that any
legislator, committee, or other participant considered any
particular statement in that report relevant to the adoption of
section 224.2, subdivision (b). Thus, the report is not properly
considered as shedding light on the legislative intent. (See In re
Ezequiel G., supra, 81 Cal.App.5th at pp. 1011-1012 [noting that
there is no reference to the Task Force Report in any legislative
reports on Assembly Bill 3176 or evidence the report was before
the Legislature or reflects its intent]; Metropolitan Water Dist. v.
Imperial Irrigation Dist. (2000) 80 Cal.App.4th 1403, 1425 [“a
court will generally consider only those materials indicative of
the intent of the Legislature as a whole”], italics omitted.) As
noted in Metropolitan Water Dist., “[m]aterial showing the motive
or understanding of an individual legislator, including the bill’s
author, his or her staff, or other interested persons, is generally
not considered. [Citations.] This is because such materials are
generally not evidence of the legislature’s collective intent.
[Citations.] For the same reason, letters to various legislators
and to the Governor expressing opinions in support of or
opposition to a bill [citation] press releases by a bill’s author
[citation] and enrolled bill reports [citations] generally should not
29
be considered.” (Metropolitan Water Dist., supra, at p. 1426, fn.
omitted.)
Second, in contrast to the absence of any mention of the
Task Force Report in the legislative history, there is clear
evidence that the Legislature did consider the BIA Guidelines
when adding section 224.2, subdivision (b) to Assembly Bill 3176.
Those guidelines were actually referenced in the relevant
legislative report and a number of provisions added to the bill at
the time align with this federal guidance. This material is
inconsistent with the broad interpretation of section 224.2,
subdivision (b) in aid of which the Task Force Report has been
cited. (See discussion, ante.)
7. The Implications of a Plain-meaning Construction of
Section 224.2, Subdivision (b) Must be Understood in
the Context of Other Inquiry Provisions
As a final consideration of whether the construction of
section 224.2, subdivision (b) proposed here runs afoul of broader
principles of statutory interpretation, it is important to consider
the practical implications in light of three other inquiry
provisions in the statute. Although section 224.2, subdivision (b)
is properly understood to impose a relatively narrow duty to
question extended family members, these other provisions in the
statute may require such inquiries in particular circumstances.
First, the mandate in section 224.2, subdivision (a) of an
“affirmative and continuing duty to inquire whether a child . . . is
or may be an Indian child,” applies in every case and is one the
juvenile courts must enforce. As noted, ante, this provision,
which predates the changes made by Assembly Bill 3176, does
not specifically require inquiry of extended family members.
However, if anything is clear from the harmless error
30
jurisprudence that has emerged from the hundreds of initial
ICWA inquiry appeals over the past year, it is that there may be
a variety of case-specific circumstances meriting more extensive
inquiries and diligent follow up regarding a child’s potential
status as an Indian child. This may necessitate making early
inquiries of extended family members in specific cases. As this
body of judicial guidance establishes, simply relying on a parent’s
self-reporting about Indian ancestry or about the parent’s and
child’s existing and potential affiliation with any Indian tribe,
may fall short of an adequate ICWA inquiry under section 224.2,
subdivision (a).23 However, the fact that case-specific
circumstances may lead the juvenile court to require inquiries of
extended family members in order to meet the general duty of
inquiry provided in section 224.2, subdivision (a), does not mean
that this subdivision should be interpreted to require such
inquiries in every case when neither the text nor the legislative
history of that provision would support such a broad construction.
In addition, when the Legislature added section 224.2,
subdivision (b) it also expanded the statutorily-mandated
inquiries at the initial hearings under section 224.2, subdivision
(c) to include, not only questioning the parties, but all
23 See In re A.C. (2022) 75 Cal.App.5th 1009, 1015-1016,
1018 (remanding for compliance with § 224.2, subd. (b) in matter
where mother who grew up in foster care may lack information
regarding family cultural history to make reliable representation
that she has no Indian ancestry); In re Y.W. (2021) 70
Cal.App.5th 542, 555, 559 (ordering juvenile court to ensure
compliance with ICWA inquiry and notice provisions in matter
where the mother was adopted at age two and had no contact
with biological parents).
31
“participant[s].” This requires questioning family members who
appear at such hearings regarding whether the child is or may be
an Indian child.24 This provision is based on the 2016 federal
regulations. (See 25 C.F.R. § 23.107(a) [“State courts must ask
each participant in an emergency or voluntary or involuntary
child-custody proceeding whether the participant knows or has
reason to know that the child is an Indian child. The inquiry is
made at the commencement of the proceeding and all responses
should be on the record. State courts must instruct the parties to
inform the court if they subsequently receive information that
provides reason to know the child is an Indian child”].)
Although neither the federal regulations nor the California
statute expressly defines “participant,” section 224.2, subdivision
(c), which refers to both “parties” and “participants,” should be
construed to require questioning of any family members on ICWA
issues if they appear at the hearing. This interpretation gives
effect to the Legislature’s choice of words, and it also comports
with the intent of the drafters of the related federal regulation.
As the adopting release for the 2016 federal regulations
explained, “[t]he court is to ask each participant in the
proceeding, including attorneys, whether they know or have
reason to know that the child is an Indian child. Such
participants could also include the State agency, parents, the
24 Section 224.2, subdivision (c) provides “[a]t the first
appearance in court of each party, the court shall ask each
participant present in the hearing whether the participant knows
or has reason to know that the child is an Indian child. The court
shall instruct the parties to inform the court if they subsequently
receive information that provides reason to know the child is an
Indian child.”
32
custodian, relatives or trial witnesses, depending on who is
involved in the case.” (81 F.R. 38803, italics added.)
Finally, the Legislature has also created a clear statutory
obligation to interview extended family members under section
224.2, subdivision (e) when there is “reason to believe” that a
child in a dependency proceeding may be an Indian child. This is
another provision that will require the juvenile courts to make an
assessment in particular cases that may result in questioning of
extended family members about a child’s potential status as an
Indian child.
Taken together with the narrowly focused inquiry
obligation the Legislature established in section 224.2,
subdivision (b), these comprehensive inquiry provisions can be
expected to result in questioning extended family members in a
number of circumstances where such inquiry is determined to be
reasonably necessary to reach an appropriate conclusion whether
ICWA applies. Thus, even though it can be expected that the
quantity of inquiries directed to extended family members about
a child’s potential status as an Indian child will decline under the
interpretation of section 224.2, subdivision (b) outlined in this
concurrence, this construction, which honors the Legislature’s
expressed language, the drafting history of the provision and its
genesis in federal ICWA guidance, should not impair in any
meaningful way the quality of ICWA inquiries in juvenile
dependency cases.
The main opinion in this case affirms based on finding any
ICWA inquiry error harmless. Notwithstanding that result, I
have written at some extended length to make the case for
construing section 224.2, subdivision (b) narrowly for two
reasons. First, our interpretation should conform to what the
Legislature expressed and intended when it adopted the statute.
33
Second, the broader prevailing interpretation, which I believe to
be incorrect, has placed significant and unnecessary burdens on
the courts; perhaps not consciously, but due to an unusual
confluence of circumstances. It is understandable that a parent’s
counsel would scour a record for errors that might provide a basis
for an appeal from an order terminating parental rights. And
once section 224.2, subdivision (b) began to be interpreted as
mandating the questioning of extended relatives in every case, it
was inevitable that the issue would be raised in virtually every
appeal, even where (as has so often been the case, including in
this case) no other error had been identified. What is less
understandable is the approach of DCFS, which routinely failed
to inquire of extended relatives and now prevails upon the
appellate courts to redress what it concedes to be its routine
violation of section 224.2, subdivision (b) by deeming the errors
“harmless.”
A report on California’s appellate system issued nearly 30
years presciently describes the potential harms that can flow
from the intersection of such circumstances and also explicates
why I believe the preferred approach here should be to declare
“no error” rather than “harmless error.”
“The harmless error doctrine creates several types of
burdens upon appellate courts. First, it takes significant time for
the appellate court to engage in a harmless error analysis. In
order to do it well, the court must immerse itself in the complete
record. There is no apparent alternative way for a court to
determine whether, absent the erroneous exclusion or
introduction of a particular piece of evidence, it is reasonably
probable that a result more favorable to appellant would have
occurred.
34
“Second, in considering whether an error is harmless, the
appellate court is required to do more than merely search for
‘substantial evidence’ in support of the judgment. The court is
supposed to come to a judgment about the probabilities that the
error affected the outcome. Yet that is precisely the sort of
speculative inquiry into the factual basis of a judgment that
appellate tribunals are relatively ill-equipped to perform.
“Third, the harmless error doctrine would seem to
undermine the appellate court’s error correction function and to
encourage essentially useless appeals. Characterizing an error
as harmless sends a very mixed signal to the bench and bar. On
the one hand, the court has found an error, but on the other
hand, it appears to be an error that the lower tribunal is
permitted to make. In that sense, it is not an error at all. And, if
it is not really an error (or, more properly, not an error to which
serious consequences attach), then there is no reason for the
lower tribunal to avoid that error in the future. In this way, the
harmless error doctrine may actually perpetuate avoidable,
repetitive errors by lower courts, errors that form the basis for
more appeals in the future. This consequence, in turn,
undermines the appellate court’s goal of achieving uniformity in
the application of the law by lower courts and, more importantly,
may significantly undermine the public’s confidence in the
judicial system.” (Kelso, A Report on the California Appellate
System, 45 Hastings L.J. (1994) 433, 476-477, fns. omitted.)
For all of these reasons, I would also affirm on the ground
that there was no inquiry error.
35
KELLEY, J.*
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
36