In re Samantha F. ( 2024 )

2/22/24
See Concurring and Dissenting Opinion
CERTIFIED FOR PARTIAL PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re Samantha F., a Person Coming
Under the Juvenile Court Law.
E080888
RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES, (Super.Ct.No. INJ2100356)
Plaintiff and Respondent, OPINION
v.
John F.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Natalie M. Lough, Judge.
Reversed and remanded.
Deanna L. Lopas, under appointment by the Court of Appeal, for Defendant and
Appellant.
Minh C. Tran, County Counsel, and Teresa K.B. Beecham and Catherine E. Rupp,
Deputy County Counsel, for Plaintiff and Respondent.
 Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is
certified for publication with the exception of part D of the Analysis.
1
John F. (father) appeals from orders terminating parental rights over his young
daughter Samantha F. He argues the Riverside County Department of Public Social
Services (department) did not sufficiently inquire into Samantha’s possible Indian
ancestry under the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. § 1901 et seq.1
We agree. We reverse and remand for the juvenile court to ensure the department
completes the ICWA inquiry.2
We publish part of this opinion intending to add two points to the ongoing
discussion about the required scope of that inquiry, currently under review by our
Supreme Court in In re Ja.O. (2023) 91 Cal.App.5th 672 (Ja.O.), review granted July 26,
2023, S280572. Specifically, we address the meaning of the terms “protective custody”
and “temporary custody” as they are used in our dependency statutes, and the application
of federal law to the ICWA inquiry. This analysis provides additional reasons, beyond
those persuasively articulated in In re Delila D. (2023) 93 Cal.App.5th 953 (Delila D.),
review granted September 27, 2023, S281447, and similar cases, why the Legislature did
not intend the initial ICWA inquiry to differ depending on whether the child was
removed from parental care with or without a warrant.
1 “[B]ecause ICWA uses the term ‘Indian,’ we do the same for consistency, even
though we recognize that other terms, such as ‘Native American’ or ‘indigenous,’ are
preferred by many.” (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1
(Benjamin M.).)
2 In the nonpublished portion of this opinion, we hold that the juvenile court erred
by refusing to allow father to testify or present evidence in support of his petition for
reinstatement of reunification services. We therefore also remand for an evidentiary
hearing on father’s petition.
2
I. BACKGROUND
Samantha was born in 2021 and has three older siblings who are not involved in
this appeal. During the dependency, mother and father repeatedly denied that Samantha
had any Indian heritage. The record does not specify whether the department asked any
other relatives about Samantha’s possible Indian heritage.
In December 2021, the department took Samantha into protective custody
pursuant to a warrant based on evidence she was endangered by maternal neglect and
paternal criminal activity. During its investigation, the department learned that an older
half sibling had stopped attending school and allegedly was “hanging out with” a 20-
year-old man. Another older half sibling reported father was violent towards mother,
including while she was pregnant with Samantha. Mother also told the department she
had a history of intimate partner violence, including from father, and she was concerned
father was using methamphetamine. Father at first denied any criminal history or drug
use but then admitted he had used methamphetamine daily for almost three years. He
refused a drug test and told the department he would take a drug test only under court
order.
The department petitioned under Welfare and Institutions Code section 3003 on
Samantha’s behalf, alleging, among other things, that mother and father had a history of
domestic violence, mother had untreated mental health issues, and father struggled with
3 Undesignated statutory citations refer to the Welfare and Institutions Code.
3
substance abuse. At the detention hearing, the juvenile court detained Samantha from
mother and father. Paternal grandparents and a paternal aunt attended that hearing.
At the February 2022 jurisdiction/disposition hearing, the court sustained all the
allegations in the amended petition and ordered reunification services for both parents.
Mother, father, and three paternal relatives attended the hearing.
In March 2022, the department placed Samantha with her paternal grandmother.
After nearly another year of reunification services, on February 28, 2023, the court
adopted the department’s recommendation and terminated father’s parental rights. Father
appealed.
II. ANALYSIS
Father argues the department failed to conduct a sufficient initial inquiry into
Samantha’s Indian heritage because it did not include extended family members. The
department argues its initial inquiry duty did not include asking extended family about
Indian heritage because Samantha was initially removed by warrant. We agree with
father.
A. Recent ICWA Initial Inquiry Caselaw
ICWA establishes minimum national standards “for the removal of Indian children
from their families and the placement of such children in foster or adoptive homes which
will reflect the unique values of Indian culture.” (25 U.S.C. § 1902.) Under California
law, the juvenile court and county child welfare department have “an affirmative and
continuing duty to inquire” whether a child subject to a section 300 petition may be an
4
Indian child. (§ 224.2, subd. (a); see In re D.F. (2020) 55 Cal.App.5th 558, 566 (D.F.).)
“This continuing duty can be divided into three phases: the initial duty to inquire, the
duty of further inquiry, and the duty to provide formal ICWA notice.” (D.F., at p. 566.)
Only the initial duty is at issue in this appeal.
The initial duty applies in every dependency. (In re J.S. (2021) 62 Cal.App.5th
678, 686; see § 224.2, subd. (b).) It “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.” (§ 224.2, subd. (a).) This means that
the department has a duty to inquire about Indian heritage even when merely
investigating an allegation, or when providing services to maintain a child in their home.
The initial duty expands under subdivision (b) of section 224.2 when a child is
removed from their home, because such removal increases the possibility of “involuntary
out-of-home placement” of Indian children. (§ 224, subd. (a)(1).) Under that provision,
“[i]f a child is placed into the temporary custody of a county welfare department pursuant
to Section 306,” the department’s obligation includes asking the “extended family
members” about the child’s Indian status.4 (§ 224.2, subd. (b).) The Legislature added
this language in Assembly Bill No. 3176 (2017-2018 Reg. Sess.), which made ICWA-
related changes to the Welfare and Institutions Code, effective January 1, 2019. (Stats.
4 Section 224.2, subdivision (b), also applies when a child is placed in the
temporary custody of a county probation department under section 307. (See § 224.2,
subd. (b).) The Legislature may have intended the section not to apply if a county
department temporarily assumes custody of a child under section 301 in a voluntary
removal that is designed to provide services to maintain the family. (See § 16507.4.)
5
2018, ch. 833, § 5.) The Judicial Council revised rule 5.481 of the California Rules of
Court to implement section 224.2, subdivision (b), by requiring inquiry of extended
family in every case in which the department seeks to place the child: “The party seeking
a foster-care placement, . . . termination of parental rights, preadoptive placement, or
adoption must ask the child, if the child is old enough, and the parents, Indian custodian,
or legal guardians, extended family members, others who have an interest in the child, and
where applicable the party reporting child abuse or neglect, whether the child is or may
be an Indian child . . . .” (Cal. Rules of Court5, rule 5.481(a)(1), italics added.)
Opinions from our division disagree on whether that rule of court correctly
interprets the statute by requiring the department to inquire of extended family members
in every case where a child is removed from home. In re Robert F. (2023) 90
Cal.App.5th 492 (Robert F.), review granted July 26, 2023, S279743, held the statute
requires the department’s inquiry to include extended family members only when the
child is taken into custody without a warrant. Robert F. reached that conclusion by
following the concurring opinion in In re Adrian L. (2022) 86 Cal.App.5th 342, 357-358
(Adrian L.). Adrian L., in turn, reached that conclusion by limiting the phrase “ ‘placed
into the temporary custody of a county welfare department pursuant to Section 306’ ”
(Robert F., at p. 500) to the exercise of the department’s authority “to take children into
temporary custody ‘without a warrant’ in certain circumstances.” (Robert F., at p. 497;
see Adrian L., at pp. 357-358 (conc. opn. of Kelley, J.).) Robert F. adopted the Adrian L.
5 Undesignated rules references are to the California Rules of Court.
6
concurrence’s view that “[a] department that takes a child into protective custody
pursuant to a warrant does so under section 340, not section 306.” (Robert F., at p. 497.)
Later, Ja.O., supra, 91 Cal.App.5th at pp. 677-678 adopted that reading of section 224.2,
subdivision (b). Yet another opinion then disapproved of rule 5.481 to the extent that it
required an extended family inquiry in cases where the child was removed by warrant.
(In re Andres R. (2023) 94 Cal.App.5th 828 (Andres R.), review granted Nov. 15, 2023,
S282054.)
Unlike these cases, Delila D., supra, 93 Cal.App.5th 953, found Robert F.’s
statutory interpretation “contrary to both the letter and spirit of Assembly Bill 3176.”
(Delila D., at p. 962.) Delila D. reasoned that because section 306, subdivision (a)(1),
grants the department the authority to “receive and maintain” temporary custody of a
child when “delivered” to a social worker by law enforcement, temporary custody
includes children brought to the department after removal by a warrant. (Id. at pp. 971-
972.) Thus, Delila D. held “there is only one duty of initial inquiry, and that duty
encompasses available extended family members no matter how the child is initially
removed from home.” (Ibid.) Under Delila D., section 224.2, subdivisions (a) and (b), as
well as rule 5.481, social workers have “a duty of initial inquiry that begins at first
contact, lasts throughout the proceeding, and includes ‘but is not limited to’ the reporting
party, the child’s parents and extended family members, and others who have an interest
in the child, as those individuals become available during the case.” (Delila D., at
p. 966.) Four opinions from other divisions have followed Delila D. (See In re C.L.
7
(2023) 96 Cal.App.5th 377; In re Jerry R. (2023) 95 Cal.App.5th 388; In re V.C. (2023)
95 Cal.App.5th 251; In re L.B. (2023) 98 Cal.App.5th 512.)
This conflict in authority is under review by our Supreme Court, with Ja.O. as the
lead case. We find Delila D.’s thoughtful discussion of the statutory language and
legislative history persuasive and adopt its reasoning and conclusions.
We also conclude there are at least two other reasons for rejecting Robert F.
beyond those discussed in Delila D. First, Robert F. misconstrues “protective custody”
as exclusive of “temporary custody” in categorizing children removed by warrant as not
in temporary custody before their detention hearing. Second, Robert F.’s interpretation
misconstrues federal ICWA law as supporting its view that the ICWA inquiry differs
based on whether a child is removed by warrant. Accordingly, we explain our view on
this issue of continuing public interest.
B. The Terms “Protective Custody” and “Temporary Custody” Refer to All Children in
Pre-Detention Custody
Section 224.2, subdivision (b), starts the duty to inquire of extended family when
children are removed from their parents and enter a county’s temporary custody prior to
the detention hearing. In holding that the duty does not apply to children removed by
warrants, Robert F. and similar cases construe the term “protective custody” to be a status
that is exclusive of “temporary custody.” This is not how the statutes use these terms.
“Temporary custody” is the term used in section 306 for children in a dependency
proceeding who are being held by a department before their initial hearing, known as a
8
detention hearing. Children removed by warrant under section 340 are placed into the
“temporary custody” of a department under section 306. Under section 340, children
removed by warrant “shall immediately be delivered to the social worker.” (§ 340,
subd. (c).) That language dovetails with section 306, subdivision (a)(1), under which
children “delivered by a peace officer” are received and maintained in “temporary
custody” by the department. Once an officer delivers a child to the social worker, the
department maintains the child in temporary custody per section 306, subdivision (a)(1).
Children can be placed in temporary custody two other ways. In some
circumstances, a peace officer may take a minor into “temporary custody” without a
warrant and contact the department to “assume custody” of the child. (§ 305, subd. (a).)
Such a child would be received and maintained in temporary custody under section 306,
subdivision (a)(1), like those delivered after execution of a warrant. Also, a social
worker, acting without a warrant and without the involvement of a police officer, may
take a child into “temporary custody” under specified circumstances. (§ 306,
subd. (a)(2).) In each of these circumstances, when children are first removed from their
parents, they are in “temporary custody” until their hearing. The important point is
that—no matter how they are placed in the department’s custody before a detention
hearing—children removed from home before a detention hearing are treated identically
9
both under the statutes and in practice. The statutory interpretation could stop here: all
children awaiting a detention hearing are in the department’s “temporary custody.”6
The Robert F. line of cases from our court, however, prompts us to say more.
Under that line of cases, “children in protective custody under section 340” are not “in
temporary custody within the meaning of section 306(a)(1).” (Andres R., supra, 94
Cal.App.5th at p. 856.) We find this distinction unconvincing. The terms “protective
custody” and “temporary custody” are not exclusive of each other. Referring to children
removed by warrant as being in “protective custody” makes sense because the warrant is
called a “protective custody warrant” and is the type of warrant issued in dependency
proceedings. By contrast, the type of warrant issued in delinquency proceedings is called
an “arrest warrant.” Protective custody is a general term used for various individuals
(including children, witnesses, and the mentally infirm) who are in custody for their
safety. Such custody can be contrasted with “custody pending trial,” which is reserved
for those held pending a trial for their wrongdoing.
In dependency proceedings, children removed without a warrant are also
described as being in “protective custody.” Indeed, article 7 of the Welfare and
Institutions Code, which houses section 306, refers to children placed in temporary
custody under section 306 as being in “protective custody.” The statute directs that when
an authority “takes into temporary custody” a minor under the sections (305 through 307)
6 For the duty to inquire of extended family, rule 5.481(a)(1) fills a statutory gap
by requiring that inquiry in the relatively small number of cases where children never
enter temporary custody but are ordered into detention at the initial hearing.
10
that authorize removals without warrants, the authority must inform the parents that the
child “has been taken into protective custody.” (§ 307.4, subd. (a), italics added.)
Accordingly, all children in temporary custody are in protective custody, that is, custody
for their safety.
Thus, as the term is used in section 306, “temporary custody” does not stand in
opposition to “protective custody.” Rather, the term reflects that a child is being held for
a short period before a detention hearing, something distinct from, though overlapping
with, protective custody. This custody is temporary because after the detention hearing
the child is either returned to their parents or detained on a non-temporary basis, until
otherwise ordered by the juvenile court. Children removed with and without warrants are
treated identically in this process.
In this vein, though article 7 contains all its sections under the heading “temporary
custody and detention,” it still refers to “protective custody” to include children in
custody without a warrant. A medical examination is required when a child who is
allegedly a victim of physical or sexual abuse “is taken into protective custody.”
(§ 324.5, subd. (a), italics added.) No one would read that provision as applying only to
children removed by warrant. Again, “temporary custody” while a child awaits a
detention hearing is “protective custody,” since the children are in custody for their
safety.
Interpreting “protective custody” as a status exclusive of “temporary custody” also
creates discord with other provisions. For example, section 306, subdivision (d), enacted
11
by Assembly Bill No. 3176 (Stats. 2018, ch. 833, § 19), obviously applies to all children
in pre-detention custody, and it uses the term “temporary custody.” That subdivision
requires quick contact of tribes where they may have exclusive jurisdiction over a
removed child. It requires that “[i]f a county social worker takes or maintains an Indian
child into temporary custody under subdivision (a), and . . . knows or has reason to
believe,” the child is domiciled on a reservation, or is a ward of a tribal court, the
department must “notify the tribe that the child was taken into temporary custody no later
than the next working day” (§ 306, subd. (d))—to vindicate the tribe’s rights. Because
tribes have exclusive jurisdiction over such children pursuant to 25 United States Code
section 1911, the provision was intended to apply to all such children in pre-petition
removal, regardless of how removed. Whether the child was removed by warrant has
nothing to do with the tribe’s exclusive jurisdiction over such a case. The Legislature’s
use of the term “temporary custody” in section 306, subdivision (d), further indicates that
it views those children delivered after removal by warrant to be in temporary custody
under section 306. The alternative interpretation—that section 306, subdivision (d),
applies only to children removed without warrants—is not a tenable construction of a
provision concerning tribal exclusive jurisdiction.
Yet another provision provides parental notification procedures for “custody
pursuant to this article” that would not sensibly be read to exclude those brought into
custody by warrant. (§ 308, subd. (a).) Under still another provision, at a detention
hearing where there is reason to know a child is Indian, the department must provide a
12
report accounting for the circumstances causing the child to be taken into “temporary
custody.” (§ 319, subd. (b)(7).) That again indicates that the Legislature views all
children held before that hearing as being in temporary custody.
“Temporary custody” is also used outside article 7 in ways that would lead to
absurd results if interpreted as exclusive of “protective custody.” For example, the
dependency statutes regulate how a minor in “temporary custody” can be housed with
adults. (§ 206.) It is not plausible that the Legislature intended to exclude from that
regulation minors who are housed after they were removed by warrant, on the view that
those minors are in “protective custody” rather than “temporary custody.” (See § 369,
subd. (a) [procedures for medical, surgical, or dental care for those in “temporary custody
under Article 7” with no provision referring to protective custody]; Health & Safety
Code, § 121020, subd. (a)(3)(A) [HIV test authorization for infants taken into “temporary
custody pursuant to Article 7” with no reference to protective custody].)
In addition, Department of Social Service (DSS) regulations indicate how the
terms “temporary custody” and “protective custody” are applied in practice. Though
revised extensively after Assembly Bill 3176 in 2018, those regulations use the term
“temporary custody” for when a child has been involuntarily removed from parents. (See
DSS Regs. 31-131.10; 31-135.12; 31-135.4; 31-136.31.) They contain no separate
procedures for handling children removed by warrant and without a warrant. Nor do they
contain any separate procedures for “protective custody.” All children awaiting their
detention hearing are treated as in “temporary custody.” In fact, the regulations contain
13
only one use of the term “protective custody,” and it uses the term for all children in
dependencies. A regulation states that when a social worker receives information that a
child in “temporary custody” is in the exclusive jurisdiction of a tribe, the social worker
is to notify the tribe. (DSS Reg. 31-136.31.) The regulations then require the agency to
advise the tribe “that the child has been taken into protective custody.” (DSS Reg. 31-
135.235, italics added.) That these regulations use “protective custody” for all children in
temporary custody further confirms that they are not exclusive categories.
Moreover, in the statement of reasons issued in promulgating the rules, DSS
referred to children as being in “temporary protective custody,” and said the regulation
was amended to conform “to the 2018 amendments made to WIC sections 305.5 and
306.” (Initial Statement of Reasons for DSS Reg. 31-136.31.) The Legislature also used
that combined term—“temporary protective custody”—when it enacted section 340’s
provision authorizing pre-petition warrants. (See Assem. Com. on Judiciary, Rep. on
Assem. Bill No. 1401, proposed amendment Apr. 18, 2017, at p. 1 [caption containing
“temporary protective custody” as the key issue and using the term “temporary protective
custody” three times in the first paragraph of the bill’s synopsis].)7
In all, it is hard to imagine that when the Legislature enacted Assembly Bill 3176
in 2018 it could have had in mind a construction of the statute where children removed by
7 The same legislative report referred to regulations that allow social workers “to
act pursuant to Section 306 when they take minors into protective custody without a
warrant.” (See Assem. Com. on Judiciary, Rep. on Assem. Bill 1401, proposed
amendment Apr. 18, 2017, at p. 4, italics added; see also Assem. Floor Rep. on Assem.
Bill No. 1401, as amended Aug. 23, 2017, at p. 4 [same].)
14
protective custody warrant are not in “temporary custody” under section 306, subdivision
(a)(1), when delivered to agency social workers. To our knowledge, that view does not
appear in any legislative history of the bill; in the later rulemaking for rule 5.481 (which
requires extended family inquiry in all cases); or in the yet later rulemaking for DSS
regulations that require county departments to inquire of extended family members about
a child’s Indian heritage in “all referrals” and “all investigations” (DSS Regs. 31-101.11;
31-125.225). It also seems never to have been suggested by any court case, policy paper,
or commentary of any sort until surfacing in the December 2022 concurrence in Adrian
L., supra, 86 Cal.App.5th at pp. 353-374. Even the county child welfare department
involved in Adrian L. was concerned that interpreting section 224.2, subdivision (b), to
exclude children removed by warrant “ ‘does nothing to further the spirit or purpose’ ” of
ICWA and “ ‘may lead to absurd results.’ ” (Adrian L., at p. 369.) We should not, and
cannot, conclude the Legislature had this statutory construction in mind in 2018.
C. The Role of Federal Law
In our view, no deep look at federal law is needed to understand our Legislature’s
decision to require that departments inquire of a child’s extended family as part of the
initial inquiry into whether a child being removed from parents is Indian. Federal
guidance recommends that states inquire of extended family in emergency proceedings,
consistent with our Legislature’s decision.
At the heart of the Adrian L. concurrence, however, is an erroneous claim that
federal ICWA law counsels for inquiries into extended family only when a child is
15
removed without a warrant. Permeating the concurrence is a misunderstanding of how
federal ICWA law applies to the removal of Indian children from their parents before a
dependency petition is filed. The concurrence reasons that under federal law, only a
warrantless removal of an Indian child constitutes an “emergency removal.” It then uses
this purported federal distinction to support its view that section 224.2’s reference to
“temporary custody” refers to warrantless removals only.
There is no room for any such distinction in federal law. Any pre-petition removal
of an Indian child in a dependency case is an “emergency removal.”
Under ICWA, there are only two ways an Indian child can be removed from their
parents and placed with another custodian: in a “child-custody proceeding” or in an
“emergency proceeding.” (25 C.F.R. § 23.2 (2023).) The former requires a set of ICWA
protections (see 25 C.F.R. §§ 23.111, 23.120-23.122 (2023)), while the latter occurs
“without the full suite of protections in ICWA.” (Executive Summary, Dept. of the
Interior, 81 Fed. Reg. at 38778, 38794 (2016) (Interior Dept. Rules).) As we will discuss,
all pre-petition removals of Indian children are emergency removals, and the ensuing
dependency proceedings are, at least at first, emergency proceedings under ICWA.
When a child is removed before a petition, the department cannot comply with the full
ICWA requirements, and the only other option in federal law is an “emergency
proceeding.” There is simply no room in federal law for the view espoused in the Adrian
L. concurrence.
16
1. Child-Custody Proceedings and Emergency Proceedings Under ICWA
In ICWA, Congress sought to protect Indian children and promote the “stability
and security of Indian tribes and families” by establishing minimum standards “for the
removal of Indian children from their families” and the placement of those children in
homes that would reflect the values of Indian culture. (25 U.S.C. § 1902.) ICWA
contains provisions governing, among other things, tribal jurisdiction over child-custody
proceedings (25 U.S.C. § 1911), the conduct of such proceedings (25 U.S.C. § 1912), and
the placement of Indian children (25 U.S.C. § 1915).
ICWA defines a “ ‘child-custody proceeding’ ” to include an action that could
require the placement of an Indian child in a foster home or institution. (25 U.S.C.
§ 1903(1)). One ICWA protection for the removal of an Indian child in a child-custody
proceeding makes it easy to see why a California pre-petition dependency removal cannot
meet the standards for such a proceeding. That is, Indian children may not be removed
from their parents and temporarily placed elsewhere until after 10 days’ notice to their
tribe. (25 U.S.C. § 1912(a); see 25 U.S.C. § 1903(1)(i) [defining “ ‘foster care
placement’ ”].)
In a California dependency case where an Indian child is removed from her
parents before a petition is filed, it is impossible to comply with that notice requirement
around the time of removal. A detention hearing on the removal is required soon after
the child is taken from the parents, well before 10 days have passed. (See § 315.) If a
police officer or social worker removes a child from a home—with or without a
17
warrant—and learns then that the child is Indian, there is not enough time to give
10 days’ notice to the child’s tribe before the detention hearing. An Indian child simply
cannot be removed pre-petition in compliance with the ICWA protections for a child-
custody proceeding.8
But, of course, federal law does permit the pre-petition removal of an Indian child
in a California dependency case. Congress wished to ensure states could act temporarily
to protect Indian children when ICWA’s child-custody case procedures cannot be met.
“[N]othing in this [child-custody proceedings subchapter]” of ICWA should prevent state
authorities from performing an “emergency removal” of an Indian child from the parents.
(25 U.S.C. § 1922.) However, for the state to perform an emergency removal, the child
must face “imminent physical damage or harm.” (25 U.S.C. § 1922.) “[T]he immediacy
of the threat is what allows the State to temporarily suspend the initiation of a full ‘child-
custody proceeding’ subject to ICWA. . . . Congress used the standard of ‘imminent
physical damage or harm’ to guard against emergency removals where there is no
imminent physical damage or harm.” (Interior Dept. Rules, 81 Fed. Reg. at 38794.)
“ICWA allows for removal of a child from his or her parents or Indian custodian, as part
8 It may be as difficult to comply, in the short time before a detention hearing,
with ICWA’s requirement that an Indian child’s removal include expert testimony about
the damage the child will face by remaining with her parents. (25 U.S.C. § 1912(e);
25 C.F.R. §§ 23.121-23.122 (2023).) It may be yet more difficult to comply with
California’s further requirement that the expert be qualified to testify as to “the prevailing
social and cultural standards of the Indian child’s tribe.” (§ 224.6, subd. (a).) Apart from
dependency cases, there may be placements of Indian children under California laws that
could comply with full ICWA protections from the outset, such as guardianships,
conservatorships, custody under Family Code section 3041, or adoption under Family
Code sections 8500-9340].)
18
of an emergency proceeding only if the child faces ‘imminent physical damage or
harm.’ ” (U.S. Dept. of the Interior, Guidelines for Implementing the Indian Child
Welfare Act (Dec. 2016), C.2, p. 23 (BIA Guidelines) <https://www.bia.gov> [as of
Feb. 21, 2024].) Accordingly, under California law, a court can detain an Indian child at
a detention hearing only upon a showing that detention is necessary to prevent imminent
physical damage or harm. (§ 319, subd. (d); see DSS Regs. 31-120.2, 31-125.226.)
Federal law, then, makes a “distinction between the requirements for emergency
proceedings and other child-custody proceedings.” (Interior Dept. Rules, 81 Fed. Reg. at
38779; see 25 C.F.R. § 23.103 (2023) [ICWA applies in the two situations];
section 224.1, subd. (d)(1) [similar].) An “[e]mergency proceeding” under ICWA is “any
court action that involves an emergency removal or emergency placement of an Indian
child.” (25 C.F.R. § 23.2 (2023).) Although an Indian child’s removal in a child-custody
proceeding must satisfy the full set of ICWA protections (such as 10 days’ notice), the
removal in an emergency proceeding need not do so. However, in that case the removal
can occur only if the child faces “imminent physical damage or harm.” (25 U.S.C.
§ 1922.) While federal regulations enumerate 10 items that should be alleged in a
petition for emergency removal of an Indian child, a list substantially adopted by our
Legislature (25 C.F.R. § 23.113(d) (2023); § 319, subd. (b)), federal guidelines
nonetheless state that the essential showing for an emergency removal is that the child
faces imminent physical damage or harm. (BIA Guidelines C.4, p. 27 [“A failure to
19
include any of the listed information should not result in denial of the petition if the child
faces imminent physical damage or harm.”].)
The length of an emergency proceeding is limited by two things. First, it
“immediately terminates” if there is no longer “imminent physical damage or harm to the
child.” (25 C.F.R. § 23.113(b)(4) (2023); see BIA Guidelines C.5, p. 27 [removal “must
not extend for longer than necessary to prevent imminent physical damage or harm to the
child”].) Accordingly, until disposition of a dependency case involving an Indian child,
parties may request an ex parte hearing to seek a determination that return to the parents
is required because there is no longer “imminent physical damage or harm to the child”
from the parents. (§ 319.4.)
Second, federal regulations require “some kind of time limit on the length of an
emergency proceeding,” so ICWA protections are not “evaded by use of long-term
emergency proceedings.” (Interior Dept. Rules, 81 Fed. Reg. at 38817.) At that point,
the state must make the ICWA showing necessary for a child-custody proceeding. (See
25 C.F.R. § 23.113(c) (2023); BIA Guidelines C.3, p. 24.) Under California law, the
“ ‘[e]mergency proceeding’ in the case of an Indian child is a hearing pursuant to
Welfare and Institutions Code section 319”—i.e., the detention hearing. (DSS Reg. 31-
002(e)(6); § 224.1, subd. (d)(1).) The emergency proceeding then terminates when the
case is resolved with either the return of the child to the parents, the transfer of
jurisdiction to a tribe, or the case reaching the stage where the county recommends a final
20
disposition of removal per sections 360 et seq.9 At that point, if an Indian child has been
removed from their parents, the emergency proceeding would end, with the county
required to comply with all the ICWA protections for a child-custody proceeding,
including 10 days’ notice to the tribe, to sustain the removal. (See BIA Guidelines C.3,
p. 25 [“actual placement of the child” need not change when an emergency proceeding
becomes a child-custody proceeding].)
In short, all pre-petition removals of Indian children in dependency cases are
emergency removals that fall squarely into this complex federal and state law scheme.
There is no room for viewing removals by warrant as some other kind of proceeding.
2. Initial Inquiry Under Federal Law
Though the ICWA statute and its procedures about “child-custody proceedings”
and “emergency proceedings” apply only if an Indian child is removed, there is one part
of ICWA procedure that applies in any case where a child is being removed from his
parents: the inquiry to determine whether the child is an Indian child.
The federal regulations “clarify the minimum Federal standards” governing
implementation of the ICWA. (25 C.F.R. § 23.101 (2023).) A regulation governing the
initial ICWA inquiry (25 C.F.R. § 23.107(a) (2023)) places the burden on the court. It
9 “In the case of an Indian child, any order detaining the child pursuant to this
section shall be considered an emergency removal within the meaning of Section 1922 of
the federal Indian Child Welfare Act of 1978. The emergency proceeding shall terminate
if the child is returned to the custody of the parent, parents, or Indian custodian, the child
has been transferred to the custody and jurisdiction of the child’s tribe, or the agency or
another party to the proceeding recommends that the child be removed from the physical
custody of their parent or parents or Indian custodian pursuant to Section 361 or 361.2.”
(§ 319, subd. (i).)
21
states that for all proceedings—whether emergency or otherwise—the court must ask
each participant on the record whether the participant knows (or has reason to know) that
the child is Indian. (25 C.F.R. § 23.107(a) (2023).) The court must instruct “the parties”
to inform the court if they later receive information that the child is Indian. (Ibid.) This
is the entire initial inquiry duty under either the federal statute or the Code of Federal
Regulations for all proceedings. It includes no duty to ask extended family members.
The BIA Guidelines provide “examples of best practice” for states. (BIA
Guidelines “Purpose of These Guidelines,” at p. 4.) The BIA Guidelines state it is
“critically important” to inquire into whether the child is Indian as soon as possible, and it
places the duty on state agencies as well as courts. (BIA Guidelines B.1, p. 11.)
Initial inquiry of extended family is mentioned in federal law only in the BIA
guidance on emergency proceedings and only once. In interpreting the regulation that
lays out the standards for emergency proceedings (25 C.F.R. § 23.113 (2023)), BIA
Guidelines section C.7 offers three sentences about “Identifying Indian children in
emergency situations.” (Id. at p. 28.) Only the first sentence concerns the initial inquiry,
and it recommends querying extended family: “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 and the child is eligible for membership as part of the
emergency removal and placement process.” (BIA Guidelines C.7, p. 28, italics added.)
If an Indian child is identified in any California pre-petition removal, an emergency
proceeding and its standard is required, so the recommendation of BIA Guidelines
22
section C.7 applies to all pre-petition removals. Whether or not the child was initially
removed by warrant, the same standard will apply to detain an Indian child.
3. The Adrian L. Concurrence’s Error Relating to Emergency Removal
The Adrian L. concurrence fails to understand that all California pre-petition
removals of Indian children are emergency removals under ICWA. The Adrian L.
concurrence argues that under “federal ICWA law . . . a removal under section 306
[without a warrant] is considered an ‘emergency removal’ under ICWA, but a removal
pursuant to an order issued under section 340 [the warrant provision] is not.” (Adrian L.,
86 Cal.App.5th at p. 357 (Kelley, J., concurring).) According to the concurrence, the
California Legislature intentionally distinguished between those removed via protective
custody warrant and those removed otherwise to “align[] [California law] with federal
ICWA guidance.” (Ibid.; see id. at p. 361 [purported “narrow requirement of specific
inquiry that paralleled federal guidelines issued in 2016”]; id. at p. 363 [federal guidance
“describes precisely the circumstance” of removals without a warrant]; id. at p. 364 [our
Legislature “tracked federal guidelines for emergency removals”]; id. at p. 367[Legislature was “[c]hoosing to follow the BIA Guidelines” in applying extended family
inquiry to only warrantless removals]; id. at p. 368 [“alignment with the narrow federal
guidance”]; id. at p. 369 [Legislature “closely tracked the relevant federal guidance on
emergency removals” with a distinction that “maps precisely onto the recommended
23
federal guidance”]; id. at p. 372 [“construction” had a “genesis in [the] federal ICWA
guidance”].)10
But the distinction the concurrence purports to rely on does not exist in the federal
statutes, regulations, or guidance. As described above, federal law provides exactly two
authorized ways to remove an Indian child from parents, either (1) through an Indian
“child-custody proceeding” while meeting the full standards in ICWA, including 10 days’
notice to the tribe and expert testimony per 25 U.S.C. § 1912, or (2) through an
“emergency removal” where a child faces “imminent physical damage or harm” (25
U.S.C. § 1922). The point of the latter standard is that “Congress established a high bar
for emergency proceedings that occur without the full suite of protections in ICWA.”
(Interior Dept. Rules, 81 Fed. Reg. at 38794.)
If a child is identified as Indian, any way that the child is removed pre-petition in a
California dependency case must satisfy the emergency removal imminence standard;
otherwise, the removal violates ICWA. Because the detention hearing must be held
quickly, the removal cannot satisfy ICWA’s standards, including the 10 days’ notice to
the tribe. Thus, if state officials discover a child they are removing is Indian, the state
officials must satisfy the emergency removal standard, regardless of whether a warrant is
involved. (See, e.g., section 306, subd. (c) [temporary custody is an emergency removal];
section 224.1 [describing section 319 as an emergency proceeding]; section 319,
10 The Adrian L. concurrence’s view on federal law has been repeated in other
opinions. (See Robert F., supra, 90 Cal.App.5th at pp. 502-503; Andres R., supra, 94
Cal.App.5th at pp. 849-851.)
24
subd. (d) [emergency removal standard for detention hearing involving an Indian child].)
There is no room in the federal scheme for the Adrian L. concurrence’s interpretation of
the removal of an Indian child by warrant as being neither a “child-custody proceeding”
nor an “emergency proceeding.”
The Adrian L. concurrence’s primary reason for reading federal law the way it
does is that a removal by warrant “under section 340, with its lower standard, would not
be an ‘emergency removal’ under federal law.” (Adrian L., supra, 86 Cal.App.5th at
pp. 363-364 [Kelley, J., concurring].) The concurrence finds a warrant removal
“fundamentally different” because a section 306 removal by a social worker without a
warrant requires imminent physical damage or harm but “section 340 does not have such
a strict standard.” (Adrian L., at p. 357.) Instead, a warrant is authorized if there is
“ ‘substantial danger’ ” to the physical or emotional health of the child. (Ibid.) A
warrant “thus requires neither imminent nor physical harm.” (Ibid.) The concurrence
finds this “significant” difference means a section 306 removal without warrant “is
considered an ‘emergency removal’ under ICWA, but a removal pursuant to an order
issued under section 340 is not.” (Adrian L., at p. 357.)
This reasoning is precisely backwards. Under federal law, in both circumstances
(warrant or not) the pre-petition removal of an Indian child must satisfy the federal
emergency removal standard. In either situation (warrant or not), the agency may (or
may not) be able to show at the detention hearing that the standard is met.
25
It is true that the section 306 standard for warrantless removals by a social worker
resembles the “imminent physical damage or harm” needed for the emergency removal of
an Indian child. But this simply means that, should a removed child turn out to be Indian,
the agency would have been applying the proper standard since removal from the parents.
The warrant standard is lower, but that just means that if from the start there is reason to
believe a child is Indian, the lower warrant standard should not be used. In rulemaking,
in fact, the Department of Interior addressed a public comment observing that some states
had looser removal standards by pointing out that whatever standard the state has, the
removal must immediately end if an Indian child does not face “imminent physical
damage or harm.”11 The federal emergency removal standards apply in the same way to
all removals in California, whether or not removal is by warrant.
The Adrian L. concurrence also observes that the BIA guidance characterizes
emergency removals as “ ‘without court authorization’ ” (Adrian L., supra, 86
Cal.App.5th at pp. 362-363), yet a warrant is court authorization. The BIA’s description
of emergency removals as lacking court authorization is no more than a reflection of the
11 “The Department recognizes, however, that a State may have a different or
broader basis for immediate removals and placements. Regardless of how the State
defines emergency removals and the triggers for emergency removals, ICWA requires
that an emergency proceeding terminate immediately when the removal or placement is
no longer necessary to prevent imminent physical damage or harm to the child.
“States must comply with ICWA’s limitations on such removals and placements.
Upon removing an Indian child, the State must either determine that there is a risk of
‘imminent physical damage or harm’ to the child and follow the requirements for an
emergency proceeding, or it must immediately terminate the emergency proceeding and
initiate a child-custody proceeding and, if appropriate, return the child to her parent(s) or
Tribe.” (Interior Dept. Rules, 81 Fed. Reg. at 38817.)
26
state procedures the BIA focused on in 2016 (before pre-petition removals by warrant
were authorized in California), as removal by warrant is nowhere mentioned in the ICWA
regulations or BIA guidance. (See Interior Dept. Rules, 81 Fed. Reg. at 38794 [citing
§ 305, a warrantless removal provision, in fashioning the federal regulations].) For an
emergency proceeding removing an Indian child, a court needs to make several findings,
including the “imminent physical damage or harm” finding and others (25 C.F.R.
§ 23.113 (2023)), with different findings required if it were a child-custody proceeding
(25 C.F.R. §§ 23.110, 23.120 (2023)). Warrant or not, a court must make these findings.
ICWA does not authorize circumvention of its “imminent physical damage or harm”
requirement simply by a court order applying some looser state standard to the removal
of an Indian child. Under federal law, the imminent physical damage or harm
requirement applies to all pre-petition removals of Indian children.
In sum, the Adrian L. concurrence misinterprets the BIA Guidelines to suggest a
distinction between removals by warrant and removals without a warrant. Federally,
inquiring of extended family is a recommended practice for identifying Indian children in
“emergency situations,” appearing only in a BIA Guideline interpreting the regulation
about emergency proceedings, 25 C.F.R. § 23.113. (BIA Guideline C.7, pp. 28-29.) Any
pre-petition removal of an Indian child is subject to the ICWA emergency proceeding
standard, requiring imminent physical damage or harm—no matter that California law
would allow removal of non-Indian children using a lesser standard, if a warrant is
27
obtained—and thus any pre-petition removal of an Indian child is an “emergency
situation” as that phrase was used in the BIA Guidelines.12
Finally, it may be that the source of our Legislature’s decision to impose an
“extended family” inquiry in section 224.2, subdivision (b), was not the bare reference in
BIA Guideline C.7 at all. A 2017 report of an ICWA task force appointed by the State
Attorney General concluded that “initial inquiry should not be made only to the parents.”
(California ICWA Compliance Task Force, Report to the California Attorney General’s
Bureau of Children’s Justice, p. 28 <https://caltribalfamilies.org/wp-
content/uploads/2020/12/ICWAComplianceTaskForceFinalReport2017.pdf> [as of
Feb. 21, 2024].) Unlike Guideline C.7, the report explained why initial inquiry of only
parents may be inadequate: “Parents may simply not have that information or may
possess vague or ambiguous information. ¶ The parents . . . may be fearful to self-
identify. . . . Parents may even wish to avoid the tribe’s participation or assumption of
jurisdiction.” (California ICWA Compliance Task Force, Report to the California
Attorney General’s Bureau of Children’s Justice,” p. 28.) The task force recommended
12 A more familiar analogy may help illustrate Adrian L.’s error. A car may be
searched with or without a warrant, so long as an officer has probable cause to believe
that it contains contraband. If the evidence at a suppression hearing demonstrates the
probable cause standard was not met, the search would be invalid in either situation and
the evidence may not be used at trial. But in either situation there still was a “search,”
whether the search met the probable cause standard or not.
Likewise, an Indian child may be removed from parents with or without a warrant,
so long as the child faces “imminent physical damage or harm.” If the evidence at a
detention hearing demonstrates that standard was not met, the Indian child must be
returned to the parents in either situation. But in each situation there still was an
emergency removal in an emergency proceeding whether or not the standard was met.
28
amending the rules of court “to support more robust inquiry” and “[r]emove reliance on
the parents to supply information.” (Id. p. 29.)
A few months after the report, Assembly Bill 3176 was introduced in the
Assembly Human Services Committee. (Hearing before Assem. Human Services Com.
introducing Assem. Bill 3176 (2017-2018 Reg. Sess.) Apr. 18, 2018, 2:30:00-2:38:00
<https://www.assembly.ca.gov/media/assembly-human-services-committee-20180410>
[as of Feb. 21, 2024]; see In re S.S. (2023) 90 Cal.App.5th 694, 699 (S.S.) [“The 2018
amendment originated in a 2017 report by the California ICWA Compliance Task
Force.”]). Delia Sharpe, executive director of the bill’s sponsor, the California Tribal
Families Coalition, sat with the author and testified that her organization was “a
successor organization to the California ICWA Compliance Task Force.” (Hearing
before Assem. Human Services Com. introducing Assem. Bill 3176, supra, at 2:32:35;
see <https://caltribalfamilies.org> [as of Feb. 21, 2024].) The coalition was “[f]ormed in
2017 to implement the comprehensive findings of the California ICWA Compliance Task
Force.” (S.S., at p. 702.) Another witness, Maryann McGovran, identified herself as one
of the task force principals and expressed her support for the bill. (Hearing before
Assem. Human Services Com. introducing Assem. Bill 3176, supra, at 2:34:15.) The
extended family inquiry was added to the bill after that initial hearing. Although the
legislative history does not explain the addition, it states that while the bill “generally
tracks” the federal ICWA guidance, it “deviates from the federal standard in provisions
where California’s standard is higher.” (Assem. Bill 3176, Sen. Judiciary Com., June 18,
29
2018, at p. 6.) The broad task force reasoning aligns with interpreting the statute to
require inquiry of extended family in every case in which a child is removed from
parents, rather than excluding cases where a warrant was used.
4. The Department’s Error Is Not Harmless
We conclude that the department did not satisfy its duty of inquiry, and that the
error was not harmless.
There is no question the department failed to ask certain readily available extended
family members about the Samantha’s potential Indian heritage. Many of Samantha’s
paternal relatives were heavily involved in her dependency and thus well known to the
department. The paternal grandparents attended the detention hearing and Samantha was
placed with them for a time. Three paternal relatives—two aunts and an uncle—appeared
for the jurisdiction and disposition hearing, and one of those aunts also appeared for the
detention hearing. Later, the department placed Samantha with a paternal aunt, who
became her prospective adoptive parent. Nevertheless, there is no evidence of the
department asking these relatives whether Samantha may be an Indian child. Nor did the
department ask any maternal relatives other than mother herself.
Under these circumstances, the ICWA error was prejudicial. When an appeal
concerns “the agency’s duty of initial inquiry, only state law is involved. Where a
violation is of only state law, we may not reverse unless we find that the error was
prejudicial.” (Benjamin M., supra, 70 Cal.App.5th at p. 742, italics omitted.) There is a
split of authority among the Courts of Appeal regarding the standard for evaluating
30
whether an ICWA inquiry error was prejudicial. (See In re K.H. (2022) 84 Cal.App.5th
566, 611-618 [summarizing the various approaches].) Our Supreme Court has granted
review on the issue in In re Dezi C. (2022) 79 Cal.App.5th 769, review granted
September 21, 2022, S275578.
Absent further guidance, we will apply the standard adopted in Benjamin M.
Under Benjamin M., we must remand “where the record demonstrates that the agency has
not only failed in its duty of initial inquiry, but where the record indicates that there was
readily obtainable information that was likely to bear meaningfully upon whether the
child is an Indian child.” (Benjamin M., supra, 70 Cal.App.5th at p. 744.) In some cases,
a thorough, but not perfect, inquiry can suffice for a reliable determination, despite some
omissions. (See In re Rylei S. (2022) 81 Cal.App.5th 309, 325 [discussing hypothetical
where agency “interviews the maternal grandfather; several, but not all of his four
siblings; and the maternal grandfather’s surviving parent, none of whom indicates the
family has any Indian ancestry,” and concluding that the “failure to interview the
grandfather’s remaining siblings would certainly be harmless absent some additional
unusual circumstance”].) Here, however, the department did not extend its ICWA
inquiry to any relatives other than mother and father, even though various paternal
relatives had attended hearings and acted as caregivers for Samantha during the 31
proceedings. Those family members were readily available and will have information
about whether Samantha is an Indian child.
31
Accordingly, we must remand with instructions for the court and the department to
complete the ICWA inquiry.
5. The Dissent
The dissent’s view is that our Legislature intended different ICWA initial inquiry
duties for children removed from their parents with a warrant and those removed without
one. This means that if a child is removed without a warrant, the Department will, for the
rest of the dependency, have an inquiry duty to ask extended family members whether the
child is Indian. But if on the same day a different child is removed by warrant, the
Department will have no such initial inquiry duty.
By contrast, our view is that the Legislature intended every child removed from
their parents in a dependency to be subject to the same initial inquiry; whether the child is
removed by warrant has no connection to the inquiry required. This is not “disparate
treatment” of children. (Dis. & conc. opn. of Fields, J., post, at p. 7 (Dis).) Quite the
opposite. Moreover, we believe our view aligns with federal ICWA’s standards, as
ICWA requirements for the removal of an Indian child are unaffected by whether a
warrant is used. Our view also aligns with rule 5.481(a)(1), which requires the same
initial inquiry for any child being removed. Indeed, the caselaw the dissent follows must
“disapprove[]” that rule because it cannot be reconciled with those cases’ conclusion that
the Legislature wanted disparate treatment of children based on how they are removed.
(Andres R. supra, 94 Cal.App.5th at p. 854.)
32
Subdivision (c) of section 340 requires children taken into custody by warrant to
be delivered to a social worker, stating that the worker shall follow the same provision
that applies to children removed without warrants and investigate and attempt to maintain
the child with the family. Other types of warrants, in contrast, might require the subject
of the warrant delivered to court. The dissent argues our view renders subdivision (c) of
section 340 surplusage. (Dis., post, at p. 3.) It does not, as the legislative history shows.
Before legislation authorizing pre-petition warrants in section 340 was enacted in
2017, some courts, but not others, would issue pre-petition warrants under authority
“inherent in their judicial powers.” (Assem. Com. on Judiciary, Rep. on Assem. Bill
No. 1401, as introduced Feb. 17, 2017, at p. 3.) The bill to authorize such warrants was
in print without subdivision (c), because even without that subdivision, the Assembly
author had assumed that existing procedures applicable “upon delivery to the social
worker of a child who has been taken into temporary custody under this article” would
apply. (Id. at p. 5.) But the author thought it was “arguably unclear” what was supposed
to happen when a child was removed by warrant,” and proposed subdivision (c) to
“clarify” the procedural steps. (Ibid.) Thus, the section was added to remove any
ambiguity as to whether a pre-petition warrant meant the social worker followed the
existing procedures that apply “upon delivery to the social worker of a child who has
been taken into temporary custody.” (Ibid.; see Sen. Com. on Judiciary, Rep. on Assem.
Bill No. 1401, Apr. 19, 2017, at p. 5 [“This bill would subject a child removed by a
protective custody warrant when a petition has not been filed to these same provisions
33
and restrictions currently in place for a child in temporary custody.”].) With
subdivision (c) in the statute, the Legislature enacting Senate Bill 1437 in 2018 would
expect that those delivered after removal by warrant would be placed in the temporary
custody of a social worker just as those delivered after warrantless removal.
The dissent disagrees with section II.B of this opinion, claiming it “fails to
show . . . examples demonstrating that ‘temporary custody’ can sometimes refer to
custody gained by virtue of a warrant.” (Dis., post, at p. 6.) However, as that portion of
the opinion explains, the Legislature used the term “temporary custody” to describe
children taken into protective custody by warrant. For instance, section 319,
subdivision (b)(7), requires that at a detention hearing where there is reason to know a
child is Indian, the social worker must report in detail on the circumstances that caused
the child to be taken into “temporary custody.” That section applies to any case where
there is reason to know a child is Indian. So the Legislature there used the term
“temporary custody” to refer to the child’s pre-detention custody, whether or not the child
was taken into custody with a warrant. The term includes those who entered custody by
warrant.
The dissent disagrees with the way we interpret “the conditional language of
section 224.2(b).” (Dis., post, at pp. 3-4.) That section states that if a child is placed in a
department’s temporary custody by section 306, the department has a duty to inquire of
extended family. As stated in section II above, our view is that under sections 306 and
340 this “conditional” language applies to all removed children awaiting their detention
34
hearings in the department’s custody, as they all are in temporary custody under 306 for
the brief pre-hearing period. Among children awaiting detention hearings in social
worker custody, it would be curious to classify some as in temporary custody (if removed
without a warrant) and some—handled by the department in the same way—as not in
temporary custody, only protective custody (if removed by warrant).
The dissent posits that “longstanding principles of law” mean the conditional
language “if A, then B” must be interpreted to mean “if and only if A, then B.” That
is, the dissent takes the position that conditional statements like the one found in
section 224.2, subdivision (b), always mean “the required act comes into play only if the
condition is met.” (Dis., post, at pp. 3-4, italics added.) The dissent thus argues that
under our view we cannot require the heightened inquiry where there is no temporary
custody, such as the occasional circumstance where a child is detained for the first time at
the detention hearing.
But this is reading into the statute a logical operator that does not appear there.
“If-then” statements are not equivalent to “if and only if-then” statements. Consider a
supermarket chain’s rule that “if a customer purchases liquor at the checkout counter, the
clerk has a duty to inquire as to his or her age.” Consider further that at a particular
market clerks sometimes bring internet orders to customers in the parking lot. Does the
conditional language preclude the market from interpreting the supermarket chain’s rule
to mean that the clerk also has a duty to check the age of liquor purchasers receiving their
groceries in the parking lot? Of course not, as the context makes clear. The obvious
35
concern of a supermarket is the age of the liquor purchaser, not whether that purchase
happens to be at the checkout counter. Interpreting the rule as authorizing age-checks
“only if” a purchase is at the checkout counter would undermine the purpose of the
rule—to make sure underage people cannot buy liquor.
In the same way, ICWA and its federal and state laws and regulations are
concerned with what happens when Indian children are removed from their parents, not
whether the removal happens to be performed by warrant. Our Legislature imposed a
general “affirmative and continuing” duty of inquiry into a child’s Indian heritage on
departments from the outset of any dependency case. (§ 224.2, subd. (a)). The statute
then expressly imposes the heightened duty to inquire of extended family when a child
enters the department’s temporary custody before a detention hearing. (§ 224.2,
subd. (b).) That covers the bulk of cases where children are removed from their parents.
Consistent with this, rule 5.481(a)(1) imposes the heightened duty in all cases when a
child is removed from parents. That rule is consistent with the statute because what
matters under it is whether an Indian child is being removed, not the method of removal.
There is “one duty of initial inquiry, and that duty encompasses available extended family
members no matter how the child is initially removed from home.” (Delila D., supra, 93
Cal.App.5th at p. 962.)
36
D. Section 388 Petition
1. Additional Background
Before the jurisdiction/disposition hearing, father told the department he had a
long history of methamphetamine abuse and had started using again in 2019. He at first
hid the use from mother, but the two of them eventually used together until mother
became pregnant with Samantha. Father said he briefly stopped using after Samantha
was born, but that he and mother started using together again, up through one week
before the children were detained.
In December 2021, both parents took a hair follicle drug test and tested positive
for methamphetamine. Father also tested positive for amphetamine. Later that month,
father tested positive for only marijuana.
In the months following the jurisdiction/disposition hearing father reported he was
homeless. During that time, mother was living with maternal grandmother. As of
May 31, 2022, father had only attended four of 16 domestic violence classes and his
enrollment was terminated for excessive absences. Father had not enrolled in individual
counseling and stopped attending his substance abuse program. His substance abuse
program enrollment was terminated, though the counselor reported father was testing
clean and participated when there. The department could not confirm whether father was
enrolled in parenting classes. Father was, however, mostly consistent in his visitation,
both in person and remotely.
37
Before the six-month review hearing, the department recommended terminating
father’s reunification services. The court continued the hearing to allow father to contest
that recommendation.
In September 2022, the court held the continued six-month status review hearing,
where it terminated reunification services as to Samantha for both parents. The court
ordered the department to refer father for a hair follicle drug test “forthwith.”
On January 10, 2023, father requested the department financially help him obtain
more services. The same day, he filed a section 388 petition requesting more
reunification services because circumstances had changed. The petition alleged father
completed a 60-day inpatient substance abuse program, completed parenting classes
through the same program, and attended Narcotics Anonymous/Alcoholics Anonymous
meetings at least twice weekly since leaving inpatient recovery. Father attached a
certificate of completion for his inpatient recovery and parenting classes to the petition.
Father requested the court again order a hair follicle test referral, that it reinstitute
reunification services, and that it increase visitation.
Judge Susanne Cho continued the section 366.26 hearing to give the department
time to conduct a preliminary adoption assessment. Judge Cho also set an evidentiary
hearing for the section 388 petition for the same day as the section 366.25 hearing:
February 28, 2023.
Despite having been ordered to refer father for a hair follicle test “forthwith,” the
department did not attempt to contact father for over a month. A social worker tried
38
calling father on February 16 to learn information relating to the section 388 petition.
The social worker called again five days later for the same reason. The social worker left
a message requesting a return call but did not hear back.
On February 23, five days before the section 366.26 hearing, the department filed
a report recommending the court deny father’s section 388 petition and terminate his
parental rights. The report alleged father “ha[d] not made himself available to [the
department] to inquire what he learned in services or to assess for any behavioral
changes,” that he “ha[d] not made himself available to [the department] to refer him
to drug testing,” and that the department could not confirm whether father was drug
free. The report also stated, “[i]t is unknown to [the department] if [father] was drug
testing . . . in November and it would be duly noted that it has been almost three months
since [father] has been in treatment.”
Both the evidentiary hearing on the section 388 petition and the section 366.26
hearing were set for February 28, 2023. Judge Natalie M. Lough—a different judge than
had originally set the hearing—presided over that hearing. Father told the court that he
tried contacting the department multiple times but did not hear from them until the
February calls, when he learned the social worker had been out for over a month. Father
said he never received the hair follicle test referral and could not provide the information
the department sought. On this basis, father orally requested a continuance to allow him
to test and for the department to investigate the factual basis for his section 388 petition.
The department confirmed the social worker had been out for some time, though counsel
39
for the department was unsure how long. Based on this, the department at first agreed to
a continuance. Minor’s counsel also agreed to a continuance but noted that they would
likely continue to oppose the petition even if a hair follicle test came back clean and the
department could confirm the facts underlying the petition.
After tentatively conveying willingness to grant the continuance, the court
reversed course, citing In re B.C. (2011) 192 Cal.App.4th 129 for the proposition that she
had discretion to deny any oral request for a continuance for lack of showing of good
cause. It agreed with minor’s counsel that it did not believe father could meet his burden
under section 388 even with a clean drug test and confirmation of the alleged changed
circumstances. On this basis, the court denied the request to continue as untimely and
without good cause.
Father then requested to testify to the changed circumstances under oath. The
court denied this request as well: “[t]he problem with that . . . is because your request for
a continuance was not noticed to all parties, that the [d]epartment doesn’t have the social
worker or any of the records available to contest father’s statement [or] adequately
prepare for cross-examination.” The court also noted that father could have obtained
independent drug testing of his own to prove that he was clean and sober and did not,
despite having the burden under section 388.
The court proceeded immediately to the section 366.26 hearing. Father requested
a continuance due to the department filing a late report recommending termination of
parental rights. Father also requested the time to complete a bonding study. The
40
department conceded it did not file the report timely, and had not recommended
terminating parental rights, but argued “going back to September of last year, everybody
is on notice that, basically, the Department is going to be asking to terminate the parental
rights.” Minor’s counsel added that the section 366.26 hearing was already continued to
allow for a preliminary adoption assessment, so father was on notice that the department
intended to move forward with adoption. The court concluded that despite the
untimeliness of the report, father had sufficient notice that termination of parental rights
was on the table and adopted the department’s recommendation to do so.
2. Analysis
Under section 388, “[a] juvenile court order may be changed, modified or set
aside . . . if the petitioner establishes by a preponderance of the evidence that (1) new or
changed circumstances exist, and (2) the proposed change would promote the best
interest of the child.” (In re S.J. (2008) 167 Cal.App.4th 953, 959.) The parent bears the
burden of proving both elements. (Ibid.) The petition must be “liberally construed in
favor of its sufficiency.” (Rule 5.570(a).) “ ‘If it appears that the best interests of the
child may be promoted by the proposed change of order, . . . the court shall order that a
hearing be held and shall give prior notice . . . .’ [Citation.] Section 388 thus gives the
court two choices: (1) summarily deny the petition or (2) hold a hearing.” (In re Lesly G.
(2008) 162 Cal.App.4th 904, 912 (Lesly G.).)
For example, in Lesly G. parents petitioned under section 388, and the court
responded ambiguously by checking three contradictory boxes in ruling on the petition:
41
one which found the petition stated a prima facie case, one which ordered a hearing on
the petition, and one which said the court would not hold a hearing. (Lesly G., supra, 162
Cal.App.4th at p. 909.) The court then notified parents that it would hold the hearing,
and subsequently continued a section 366.26 hearing so both hearings would occur on the
same day. (Lesly G., at pp. 909-910.) At the hearing, the court simply stated that the
section 388 petition had been denied before moving straight to the section 366.26
hearing. (Lesly G., at pp. 910-911.)
In that case the reviewing court interpreted the trial court’s ambiguous ruling as a
finding that the petition satisfied the parents’ burden of making a prima facie showing, so
the parents were entitled to an evidentiary hearing. (Lesly G., supra, 162 Cal.App.4th at
p. 913.) Further, the reviewing court held the juvenile court had erred by failing to hold
an evidentiary hearing, even though one had been calendared. It noted that the juvenile
court “neither took testimony nor received documentary evidence, and it denied the
petition without affording counsel an opportunity to argue the merits of the petition,”
before concluding that “[i]n short, it provided no hearing whatsoever.” (Id. at p. 915.)
Thus, the juvenile court’s procedures did not “comport[] with due process or with the
statutory mandate of section 388,” reversed, and remanded to allow for an evidentiary
hearing. (Id. at pp. 915, 917.)
This case is similar to Lesly G. If anything, the case for reversal and remand is
stronger here than in Lesly G. First, the court’s initial order on the section 388 petition
unambiguously ruled father was entitled to an evidentiary hearing. Indeed, the
42
department concedes that the first judge “initially ruled that Father’s petition met the
prima facie showing for an evidentiary hearing.” Second, the department failed to abide
by court orders before the hearing—specifically, the order that father be provided drug
testing “forthwith,” prejudicing father’s ability to establish his sobriety. Finally, as in
Lesly G., the court here did not offer any party the opportunity to present evidence or
argue the merits of the petition. Therefore, under Lesly G., father was entitled to an
evidentiary hearing, and he did not receive one.
In any event, the department argues, the second judge did not have to hold an
evidentiary hearing because she summarily denied the petition herself, overriding the
previous judge’s ruling. This argument is unavailing. Though courts usually have the
power to correct their own prejudgment errors or reconsider interim rulings, “if the
reconsideration is accomplished by a different judge . . . the general rule is just the
opposite: the power of one judge to vacate an order made by another judge is limited.”
(In re Alberto (2002) 102 Cal.App.4th 421, 427 (Alberto).) “ ‘This is because the state
Constitution, article VI, section 4 vests jurisdiction in the court, “. . . and not in any
particular judge or department . . . ; and . . . whether sitting separately or together, the
judges hold but one and the same court.” ’ ” (Ford v. Superior Court (1986) 188
Cal.App.3d 737, 741.) In short, a superior court “though comprised of a number of
judges, is a single court and one member of that court cannot sit in review on the actions
of another member of that same court.” (People v. Woodard (1982) 131 Cal.App.3d 107,
111.) “If the rule were otherwise, it would be only a matter of days until we would have
43
a rule of man rather than a rule of law.” (People v. Scofield (1967) 249 Cal.App.2d 727,
734.) This rule applies in both civil and criminal contexts, and even applies when the
second judge is seeking to correct a perceived or actual error in the first order. (Alberto,
at p. 427 [“For one superior court judge, no matter how well intended, even if correct as a
matter of law, to nullify a duly made, erroneous ruling of another superior court judge
places the second judge in the role of a one-judge appellate court.”].) Accordingly, once
the first judge found father stated a prima facie case and ordered an evidentiary hearing,
the second judge did not have the power to contradict that order and summarily deny the
petition herself.
We therefore conclude the second judge’s decision to summarily deny father’s
petition, or otherwise fail to hold an evidentiary hearing, did not comport with due
process. “[B]ecause we reverse the order denying appellant’s petition for failure to
comport with due process, we must also reverse the order under section 366.26
terminating parental rights and selecting adoption as the permanent plan.” (Lesly G.,
supra, 162 Cal.App.4th at p. 916.) We do so “ ‘with reluctance . . . for each delay in
reaching a permanent plan “can be a lifetime to a young child.” ’ [Citation.]
Nevertheless, where the petitioner presented a prima facie case of changed circumstances
sufficient to trigger [their] entitlement to a section 388 hearing, we cannot presume that a
hearing would have been fruitless.” (Ibid.) We take no position on how the court should
rule on father’s petition. We hold only that he is entitled to a full and fair hearing before
the court makes that determination.
44
III. DISPOSITION
We reverse the order terminating father’s parental rights and vacate the court’s
finding that ICWA does not apply. We remand the matter to the juvenile court with
directions to afford father an evidentiary hearing on his section 388 petition before
proceeding to the section 366.26 hearing.
We also direct the court and the department to comply with the inquiry provisions
of ICWA and of sections 224.2 and 224.3—and, if applicable, the notice provisions as
well—consistent with this opinion.
CERTIFIED FOR PARTIAL PUBLICATION
RAPHAEL
J.
I concur:
McKINSTER
Acting P. J.
45
[In re Samantha F., E080888]
FIELDS J., Concurring and Dissenting.
I fully concur in the majority’s decision in this case except its determination
adopting the reasoning and holding of this court’s decision in In re Delila D. (2023)
93 Cal.App.5th 953, review granted September 27, 2023, S281447 (Delila D.), regarding
the scope of the ICWA inquiry required in this case. I continue to agree with and follow
this court’s decisions on the ICWA inquiry question in In re Robert F. (2023)
90 Cal.App.5th 492, review granted July 26, 2023, S279743 (Robert F.), In re Ja.O.
(2023) 91 Cal.App.5th 672, review granted July 26, 2023, S280572 (Ja.O.), and In re
Andres R. (2023) 94 Cal.App.5th 828, review granted November 15, 2023, S282054
(Andres. R.).
Thus, while I concur with that portion of the majority opinion holding that “the
juvenile court erred by refusing to allow father to testify or present evidence in support of
his petition for reinstatement of reunification services” and remanding “for an evidentiary
hearing on father’s petition” (Maj. Opn., p. 2, fn. 2), I respectfully dissent to that portion
of the majority opinion reversing the juvenile court’s determination that adequate ICWA
inquiry occurred in this case. I also briefly address the majority opinion’s explanation of
the scope of the terms “protective custody” and “temporary custody” and its view of the
“application of federal law to the ICWA inquiry.” (Maj. Opn., p.2.)
The ongoing dispute regarding the appropriate scope of initial inquiry under
ICWA arises from the different interpretations by various courts of Welfare and
1
Institutions Code section 224.2, subdivision (b) (§ 224.2(b)).1 That statute provides that
“[i]f a child is placed into the temporary custody of a county welfare department pursuant
to Section 306 or county probation department pursuant to Section 307, the county
welfare department or county probation department has a duty to inquire whether that
child is an Indian child. Inquiry includes, but is not limited to, asking the child, parents
. . . [and] extended family members . . . whether the child is, or may be, an Indian child
. . . .” (§ 224.2(b).)
This court’s decision in Robert F. held that this expanded duty of inquiry applies
“only when a child is placed in temporary custody under section 306, it does not apply
when a county welfare department takes a child into protective custody pursuant to a
warrant.” (In re Robert F., supra, 90 Cal.App.5th at p. 497.) The majority opinion
adopts and follows the reasoning and conclusions of Delila D., from a different panel of
this court, which held that the duty of expanded inquiry under section 224.2(b), including
extended family members, applies in every dependency proceeding. (Maj. Opn., p.2;
Delila D., supra, 93 Cal.App.5th at. p. 962.)
Delila D. came to that decision, in part, by concluding that “section 224.2(b)’s
reference to temporary custody ‘pursuant to Section 306’ is better read as including
children who, though initially removed by protective custody warrant, are then delivered
or placed into the department's custody pending a detention hearing.” (Delila D., supra,
93 Cal.App.5th at. p. 973). In Ja.O., another panel of this court thoroughly considered
1 Undesignated statutory citations are to the Welfare and Institutions Code.
2
that claim and rejected it, noting that, if that interpretation “were correct, then most of
subdivision (c) of section 340 would be surplusage.” (Ja.O., supra, 91 Cal.App.5th at
p. 680.) We went on to affirm that oft-stated maxim that statutory interpretations which
render all of a portion of a statute surplusage should be avoided. (Ibid.) I need not repeat
that discussion here.
Delila D. also emphasized that “section 224.2(b) does not state that the inquiry it
describes applies ‘only if’ a child is taken into temporary custody under section 306,” and
that section 224.2(b) “does not contain the word only or any other language suggesting an
intent to limit the inquiry it describes” (Delila D., 93 Cal.App.5th at p. 974). The absence
of the language “only if” was a significant factor in Delila D.’s conclusion that “[e]ven if
[Robert F.’s] conclusion that section 306 excludes removals by protective custody
warrant were correct, we would still disagree with its conclusion that the duty described
in section 224.2(b) does not apply once a child initially removed by warrant is removed
from parental custody at the disposition hearing.” (Delila D., at p. 974.)
I am particularly persuaded by Andres R.’s examination of Delila D.’s view on the
conditional language of section 224.2(b)). Andres R. concluded that “according to Delila
D., when the Legislature said, ‘If the following condition is met, the social worker has a
duty of inquiry,’ what the Legislature meant was ‘If the following condition is met, the
social worker has a duty of inquiry, but if the condition is not met, the social worker still
has the same duty of inquiry anyway.’ ” (Andres R., supra, 94 Cal.App.5th at p. 846.)
I respectfully believe that this view, espoused by Delila D., is inconsistent with
longstanding principles of law. When a law requiring that something be done is
3
conditional upon some other act or determination occurring first, the required act comes
into play only if the condition is met. (See In re Zachary G. (1999) 77 Cal.App.4th 799,
806-807) [“The conditional language of section 388 makes clear that the hearing is only
to be held if it appears that the best interests of the child may be promoted by the
proposed change of order, which necessarily contemplates that a court need not order a
hearing if this element is absent from the showing made by the petition.”]
Similarly, here, the conditional language of section 224.2 (b) makes clear that if
the condition is not met, that is, the removal is with a warrant,2 the requirement of the
expanded duty of inquiry under section 224.2(b), to inquire of the child’s extended family
members, does not apply. Moreover, if the Legislature wanted the extended duty of
inquiry to apply in every case, it could have easily said so, rather than using the
conditional language it chose in section 224.2(b), which limits the statute’s application to
sections 306 and 307 (dealing with warrantless removals) and making no reference to
section 340 (dealing with removals utilizing protective custody warrants).
2 The condition stated in section 224.2(b) refers to children removed pursuant to
sections 306 and 307 (without protective custody warrants). Section 224.2(b)
references only sections 306 and 307, which pertain to warrantless removals of children.
Section 306, subdivision (a)(1), gives social workers the right to “[r]eceive and
maintain . . . temporary custody of a child . . . who has been delivered by a peace officer.”
(Italics added.) Police officers are only authorized to take children into temporary
custody without a warrant. (See §§ 305, 305.6, 625). Section 306, subdivision (a)(2),
authorizes a social worker to take and maintain a child in “temporary custody. . . without
a warrant” when “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.”
(Ibid.) A county probation department may only take a child into temporary custody,
under the dependency statutes, without a warrant. (See §§ 305, 307.)
4
According to the majority opinion, “there are at least two other reasons for
rejecting Robert F. beyond those discussed in Delila D.” (Maj. Opn., p. 8.) First, the
majority opinion concludes that “Robert F. construes the terms ‘temporary custody’ and
‘protective custody’ in a manner inconsistent with their uses in the dependency statutes.”
(Maj. Opn., p.8.) Second, the majority opinion concludes that Robert F.’s view that
federal ICWA law supports its determination regarding the scope of inquiry under section
224.2(b) is based upon its misconstruction of federal ICWA law. I address these points
in turn.
Temporary Custody and Protective Custody Distinctions. The majority opinion
finds “unconvincing” the distinction between “temporary custody” and “protective
custody” made by Robert F. and its progeny, which conclude that “[s]ection 306(a)(1)
applies and has always applied only to the ‘temporary custody’ of a warrantless
predetention removal, not to the ‘protective custody’ or removal pursuant to a protective
custody warrant.” (Andres R, supra, 94 Cal. App. 5th at p. 845.) (Maj. Opn., p. 10.) The
majority posits that “[t]he terms ‘protective custody’ and ‘temporary custody’ are not
exclusive of each other.” (Maj. Opn., p. 10.) In part, I agree with this conclusion.
The majority points out, for example, that “when an authority ‘takes into
temporary custody’ a minor under the sections (305 through 307) that authorize removals
without warrants, the authority must inform the parents that the child ‘has been taken into
protective custody.’ (§ 307.4, subd. (a), italics added.)” (Maj. Opn., pp. 10-11.) Thus,
both terms are used for the same child. This example, and others used by the majority,
5
demonstrate that the term “protective custody” has been used to include children removed
from home pursuant to a warrant or without a warrant.
The terms temporary custody and protective custody are not and need not be
mutually exclusive. As explained in Robert F. and its progeny, “temporary custody”
refers to situations where children are taken into custody without a warrant. (Robert F.,
supra, 90 Cal.App.5th at pp. 500-501; Ja.O., supra, 91 Cal.App.5th at p. 678-679; Andres
R., supra, 94 Cal.App.5th at p. 841-842.) The fact that “protective custody” is sometimes
used to refer to situations where a child is removed with or without a warrant does not
undermine Robert F.’s conclusions. What the majority opinions fails to show is
examples demonstrating that “temporary custody” can sometimes refer to custody gained
by virtue of a warrant. As noted in Andres R., “[t]he only statutes that authorize peace
officers to take children into ‘temporary custody’ are sections 305, 305.6, and 625, all of
which concern taking children into ‘temporary custody’ without a warrant.” (Andres R.,
at p. 843.)3
Finally, I respectfully disagree with the majority’s view, consistent with Delila D.,
that children taken into protective custody pursuant to a warrant and later transferred to a
social worker are placed in temporary custody under section 306. (Delila D., supra,
3 The majority opinion suggests that the term “temporary custody” in section 319,
subdivision (b)(7), refers to removals with and without a warrant. In my view, it makes
sense for section 319, subdivision (b)(7), to refer to warrantless removals. If an Indian
child is detained without a warrant, then section 319, subdivision (b)(7), would require a
detailed report on why the child was removed. If an Indian child is removed pursuant to
a warrant, the requirement would not apply because the court issuing the warrant already
has the facts leading to removal.
6
93 Cal.App.5th at p. 974.) (Maj. Opn., pp. 8-15.) Andres R. notes that such view results
in disparate treatment between those taken into custody before the detention hearing and
those who are first detained by the court. (Andres R., supra, 94 Cal.App.5th at pp. 845-
846.) I agree with and continue to follow Andres R’s response to that view which I set
forth below.4
Application of Federal ICWA law and Guidelines. The majority opinion criticizes the
view of federal law set in various decisions of this court and as set forth in the concurring
opinion in In re Adrian L. (2022) 86 Cal.App.5th 342 (Adrian L.). (Maj. Opn., p. 24,
fn.10.) I continue to agree with and follow this court’s view on the application of federal
law to the initial ICWA inquiry as set forth in Robert F., Ja.O., and Andres R.
According to the majority opinion, “[f]ederal guidance recommends that states
inquire of extended family in emergency proceedings, consistent with our Legislature’s
decision.” (Maj. Opn., p.15.) I agree. In my view, however, the views expressed in
4 As noted in Andres R., “If Delila D. were right that section 306(a)(1) applies to
children taken into protective custody pursuant to protective custody warrants, then the
expanded duty of initial inquiry under section 224.2(b) would apply to all children taken
into custody (with or without warrants) before the detention hearing, but it would not
apply to children who are first detained by the court at the detention hearing, never
having been taken into custody previously. Delila D. obviates the need to explain that
differential treatment by arguing that because section 224.2(b) does not contain the word
‘only,’ it applies to all children regardless of whether they were taken into temporary
custody under section 306 or 307. (Delila D., supra, 93 Cal.App.5th at p. 974.) But if
Delila D.’s argument concerning the absence of the word ‘only’ fails, as we argue it does
(ante, pp. 846–848), then Delila D.'s interpretation of section 306(a)(1) and section
224.2(b) leads to differential treatment that is at least as hard to explain as the differential
treatment under Robert F. and Ja.O.” (Andres R., supra, 94 Cal.App.5th at p. 857, fn. 9.)
7
Robert F., Ja.O., and Andres R. are consistent with the federal guidelines when the
removals are without a warrant.
In discussing the federal law and guidelines on the subject, the majority opinion
notes that, “[i]nitial inquiry of extended family is mentioned in federal law only in the
BIA guidance on emergency proceedings and only once.” (Maj Opn., p. 22.) The
majority opinion refers to section C.7 of the BIA Guidelines, which recommend “that the
State agency ask the family and extended family whether the child” is or may be an
Indian child “as part of the emergency removal and placement process. (BIA Guidelines
C.7, p. 28, italics added.)” (Maj. Opn., p. 22.) The majority then says, “[t]he BIA’s
description of emergency removals as lacking court authorization [without a warrant] is
no more than a reflection of the state procedures the BIA focused on in 2016 (before pre-
petition removals by warrant were authorized in California), as removal by warrant is
nowhere mentioned in the ICWA regulations or BIA guidance. (See Interior Dept. Rules,
81 Fed. Reg. at 38794 [citing § 305, a warrantless removal provision, in fashioning the
federal regulations].)” (Maj. Opn., pp. 26-27.) I agree.
The BIA Guidelines—and section 224.2(b)—deal only with cases involving
warrantless removals. (Adrian L, supra, 86 Cal.App.5th at pp. 362-363 (conc. opn.
Kelley, J.).) Therefore, Guideline C.7’s recommendation for extended family inquiry in
cases involving warrantless removals throws light on how the California Legislature
determined to make California law consistent with the federal guidelines by requiring
extended family inquiry for warrantless removals. A reading of the Guidelines
8
demonstrates that Adrian L’s and Robert F.’ s conclusion that section 306 refers to
warrantless removals is sound and consistent with federal guidelines.5
Thus, I am persuaded that Robert F. and its progeny are correct, and I continue to
agree with and follow those opinions.
FIELDS
J.
5 See U.S. Dept. of the Interior, Guidelines for Implementing the Indian Child
Welfare Act (December 2016)
<https://www.bia.gov/sites/default/files/dup/assets/bia/ois/pdf/idc2-056831.pdf> [as of
Feb. 21, 2024], in particular, Guidelines C.7, p. 28 [ recommending extended family
inquiry in cases of as part of the “emergency removal and placement process”] and
Guidelines C.2, p. 23 [defining emergency removal as being “taken into custody by a
State official without court authorization”].
9