In re E.M. CA4/2 ( 2024 )

See Dissenting Opinion
Filed 1/24/24 In re E.M. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re E.M. et al., Persons Coming Under
the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES, E081259
Plaintiff and Respondent, (Super.Ct.No. SWJ2100120)
v. OPINION
N.F. et al.,
Defendants and Appellants.
APPEAL from the Superior Court of Riverside County. Michael J. Rushton,
Judge. Conditionally affirmed and remanded with directions.
Amy Z. Tobin, under appointment by the Court of Appeal, for Defendant and
Appellant N.F.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and
Appellant E.M.
Minh C. Tran, County Counsel, Teresa K.B. Beecham, and Catherine E. Rupp, for
Plaintiff and Respondent. Conditionally affirmed and remanded with directions.
A mother and father appeal from orders terminating their parental rights over two
children. In their view, the juvenile court erred by not ordering posttermination sibling
visitation with an older half-sibling, who was a party to the dependency proceedings but
is not a party in this appeal. The parents also argue the county welfare department did
not comply with California law implementing the Indian Child Welfare Act of 1978 (25
U.S.C. § 1901 et seq.; ICWA) because it failed to ask several available extended family
1
members whether the children have any Indian ancestry. We reject the first argument,
but agree with the second, so we conditionally affirm and remand with directions.
BACKGROUND
In November 2020, one of the children (born in September 2018) was living with
father in Los Angeles County, while the other (born July 2020) and the half-sibling (born
May 2005) lived with mother in Riverside. The half-sibling’s father’s whereabouts were
unknown. In the same month, the Los Angeles county welfare agency filed a dependency
2
petition, alleging all three children came within Welfare and Institutions Code section
300, subdivision (a) (serious physical harm) and (b)(1) (failure to protect). At the
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
Undesignated statutory references are to the Welfare and Institutions Code.
2
detention hearing, the court detained all three children from their fathers and released
them to mother, ordering family maintenance services for mother.
In January 2021, the juvenile court took jurisdiction over the three children. The
court removed them from “both of their respective fathers” and placed them with mother.
The court ordered reunification services for father and family maintenance services for
mother.
The matter was transferred to Riverside County in March 2021. At the July 2021
six-month status review hearing, the juvenile court detained all three children from
mother. In September 2021, the court sustained allegations of a supplemental
dependency petition under section 387 filed as to mother. It removed all three children
from mother and ordered that she receive reunification services, and terminated father’s
reunification services.
When the three children were initially removed from mother’s care, they were
placed together, with father’s sister (thus, the paternal aunt of the two younger children).
By September 2021, they were no longer placed with any relative, and were not placed
together. The court found that the children and their half-sibling comprised a sibling
group, that “[d]eveloping or maintaining the sibling relationship with the siblings is
appropriate,” and that the siblings’ relationships had been maintained per section 16002.
The half-sibling visited separately with the youngest child once at the end of
September 2021, and then with the other child a few days later, at the beginning of
October 2021. Both younger children cried at the end of those visits, which upset the
3
half-sibling, who expressed “he would rather not have any visits with [the children]
anymore after that.”
At the six-month status review hearing as to mother in April 2022, the court
terminated her services and set a section 366.26 hearing. The section 366.26 hearing was
3
initially set for all three children, but later vacated as to the half-sibling.
In July 2022, the two younger children were placed together in a foster home with
caregivers who were interested in adopting them. At around the same time, the half-
sibling indicated “he would possibly be interested in visiting [with the younger children]
after they [were] stable in their adoptive home.” They had an initial video chat visit, and
then a visit in a park, in November 2022. The half-sibling “said that he enjoyed the visit”
and that he would tell his caretaker when he is ready for another. He later said that “he
wishes to have visitation with his siblings,” but he was unsure how often, because the
“visits are emotional for him and his siblings.”
At the contested section 366.26 hearing in April 2023, the two younger children’s
counsel agreed with DPSS’s recommendation to terminate parental rights, and argued no
exception to termination applied. As to the sibling relationship exception, counsel noted
she had spoken with the caregivers’ attorney, who advised her that they were “planning
to continue that sibling relationship.” Counsel did not believe the children’s relationship
3
In February 2023, the juvenile court ordered “Another Planned Permanent
Living Arrangement” for the half-sibling with a “Transitional Independent Living Case
Plan.” The half-sibling turned 18 years old in May 2023.
4
with their half-sibling outweighed their “needs for permanency, which they have with
these caregivers.” Mother and father did not argue otherwise.
Through counsel, the half-sibling expressed that he did not object to the
termination of parental rights, and believed “the current caretakers are providing
excellent care for his siblings.” He wanted to continue the sibling visits.
The juvenile court found the two younger children likely to be adopted and
terminated the parental rights of mother and father.
DISCUSSION
A. Sibling Visitation
The parents argue the juvenile court erred by not ordering sibling visitation
between the children and their older half-sibling. We reject the argument for three
reasons.
First, the argument is forfeited. At the section 366.26 hearing, neither parent
asked the court to consider an order concerning sibling visitation (and neither argued that
the sibling bond exception (§ 366.26, subd. (c)(1)(B)(v)) applied). (See In re Anthony P.
(1995) 39 Cal.App.4th 635, 641 [“Appellant has waived her right to assert error as to
sibling visitation on appeal by not properly raising the issue below”].)
Second, parents lack standing to raise the issue. To have standing to appeal a
lower court’s decision, a party must be aggrieved by that decision, meaning the party’s
“rights or interests are injuriously affected by the decision in an immediate and
substantial way, and not as a nominal or remote consequence of the decision.” (In re
5
K.C. (2011) 52 Cal.4th 231, 236.) Especially after termination, when the sibling bond
exception is no longer a potential issue, the “minor’s interest in maintaining a relationship
with siblings is unrelated to the parents’ interest in reunification.” (In re Daniel H.
(2002) 99 Cal.App.4th 804, 809; accord In re K.C., supra, 52 Cal.4th at p. 238 [parents
lack standing to challenge posttermination placement in appeal from order terminating
parental rights unless “the placement order’s reversal advances the parent’s argument
against terminating parental rights”].) The only interest the parents argue is at stake in
the court’s decision not to order posttermination sibling visitation is the loss to the
children of “their treasured sibling relationship.” They do not articulate any specific way
their own rights or interests are injuriously affected.
The parents attempt to show they have standing to raise the sibling visitation issue
by analogy to ICWA case law. We are not persuaded. They argue, relying primarily on
In re Jonathon S. (2005) 129 Cal.App.4th 334, 339 (Jonathon S.), that “it is well
established that a non-Indian parent has standing to assert an ICWA notice violation on
appeal even though this issue is not related to the parents’ rights and therefore the parents
4
are not aggrieved.” This argument misconstrues Jonathon S., which held a non-Indian
parent has standing to appeal precisely because ICWA confers rights to “[e]ven a non-
Indian parent,” so an ICWA notice violation injuriously affects the non-Indian parent’s
4
The other cases parents cite—In re A.W. (2019) 38 Cal.App.5th 655, 663 and In
re B.R. (2009) 176 Cal.App.4th 773, 779-780—apply Jonathon S.’s holding without any
additional analysis.
6
rights. (Jonathon S., at p. 339.) Thus, Jonathon S. does not support parents’ claim of
standing regarding posttermination sibling visitation.
Third, assuming for the sake of argument the issue of posttermination sibling
visitation was not forfeited and parents had standing to raise it here, and assuming also
the trial court erred, parents’ challenge to the juvenile court’s decision still fails because
they do not explain how they were prejudiced by the alleged error. (In re J.P. (2017) 15
Cal.App.5th 789, 798 [harmless error analysis applies in dependency proceedings].)
(Although analytically separate, this failure is symptomatic of the parents’ lack of any
interest or right that is injuriously affected by the claimed error. Viewed in that light, it
tends to support our conclusion they lack standing to raise the issue.)
For each of these reasons, we reject the parents’ argument about posttermination
sibling visitation.
B. ICWA
Mother and father both have repeatedly denied any Indian ancestry. Yet extended
relatives on both sides were also apparently available for inquiry, including a paternal
aunt, a maternal aunt, a maternal uncle, and both grandmothers. There is nothing in the
record showing, however, that any extended relatives were asked whether the children
may have Indian ancestry. Relying on In re Robert F. (2023) 90 Cal.App.5th 492, review
granted July 26, 2023, S279743 (Robert F.) and In re Ja.O. (2023) 91 Cal.App.5th 672,
680-681, review granted July 26, 2023, S280572 (Ja.O.), the department argues it had no
duty to include extended relatives in its ICWA initial inquiry. The department’s
7
conclusion follows from those cases’ reasoning. We are not persuaded, however, that the
reasoning of those cases is correct.
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
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
8
pursuant to Section 306,’ the department’s obligation includes asking the ‘extended
5
family members’ about the child’s Indian status.” (Robert F., supra, 90 Cal.App.5th at
p. 497; § 224.2, subd. (b).) The Legislature added this language through Assembly Bill
No. 3176 (2017-2018 Reg. Sess.), which made ICWA-related changes to the Welfare and
Institutions Code, effective January 1, 2019. (Stats. 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
6
Indian child . . . .” (Cal. Rules of Court , 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. Robert F. held the statute requires
the department’s inquiry to include extended family members only when the child is
5
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.)
6
Undesignated rules references are to the California Rules of Court.
9
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.)
and adopting the Adrian L. 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, In re Ja.O. (2023) 91 Cal.App.5th 672, 677-678, review
granted July 26, 2023, S280572 (Ja.O.) 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, review granted Nov. 15, 2023, S282054
(Andres R.).)
Unlike these cases, In re Delila D. (2023) 93 Cal.App.5th 953, review granted
Nov. 15, 2023, S282054 (Delila D.) 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. (Delila D., 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,
10
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.) Three opinions from other
divisions have followed Delila D. (See In re C.L. (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.)
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. Applying Delila
D. to this case, the department’s initial duty of inquiry included the ongoing duty to
inquire of extended family members who became available during the case.
In the alternative, relying on In re Ezequiel G. (2022) 81 Cal.App.5th 984, the
department proposes we should affirm the juvenile court because the inquiry it conducted
was adequate. Certainly, we agree the department needed to make only “reasonable and
diligent efforts to conduct the required inquiry and report those efforts and the results
thereof to the court.” (In re J.K. (2022) 83 Cal.App.5th 498, 508, fn. 7.) No one is
asserting the department was required to “undergo overly voluminous record searches,
attend family reunions, conduct stakeouts, or search Ancestry.com. Nor [is it] required to
interview young children or other extended family members who would not be expected
to have any information regarding the [children’s] Indian status.” (Ibid.) We are not
persuaded, however, that an inquiry may be considered reasonable and diligent when the
department fails to inquire of extended relatives who are readily available and reasonably
11
might have information about the child’s Indian status. To the extent Ezequiel G. holds
otherwise, we decline to follow it.
In short, the department did not fulfill its duty of initial inquiry under ICWA
because it failed to ask several readily available extended relatives whether the children
are or might be Indian children. The trial court erred by finding ICWA did not apply
even though the department had not fulfilled its duty of initial inquiry. We turn, then, to
whether the error should be considered harmless.
There are multiple approaches to assessing harmlessness in the ICWA context, and
the issue is currently under review by our Supreme Court. (See In re Dezi C. (2022) 79
Cal.App.5th 769, 777-782, review granted Sept. 21, 2022, S275578).) We will apply the
approach we described in Benjamin M., supra, 70 Cal.App.5th at p. 739. That is, we will
find prejudice when an agency “fail[s] to investigate readily obtainable information
tending to shed meaningful light on whether a child is an Indian child.” (Ibid.) Even
where the agency has erred, however, it may be that, “considering the entire record, it
was obvious that additional information would not have been meaningful to the inquiry.”
(Id. at p. 743.) “This might occur where the evidence already uncovered in the initial
inquiry was sufficient for a reliable determination.” (Ibid.)
At times, a record could demonstrate that the initial inquiry was sufficient for a
reliable determination, even though there was an erroneous failure to inquire of some
extended relatives. For example, in theory, the department could have uncovered
information affirmatively showing the children were disqualified from tribal membership.
12
(Cf. In re J.M. (2012) 206 Cal.App.4th 375, 382 [tribe’s membership criteria showed
children disqualified from membership “irrespective of their great-great grandparents’
possible membership in the tribe”].) In some circumstances, 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”].)
The record here, however, demonstrates nothing of the sort. The department only
emphasizes that mother and father consistently denied Native American ancestry. This
line of reasoning ignores that a parent or other relative may deny Indian ancestry, but an
interview with another available extended family member may nevertheless reveal such
ancestry. (See In re Y.W. (2021) 70 Cal.App.5th 542, 554 [to accept parent’s denial of
any knowledge of Indian ancestry, without further inquiry, “ignores the reality that
parents may not know their possible relationship with or connection to an Indian tribe”];
In re T.G. (2020) 58 Cal.App.5th 275, 289 [“Oral transmission of relevant information
from generation to generation and the vagaries of translating from Indian languages to
English combine to create the very real possibility that a parent’s or other relative’s
identification of the family’s tribal affiliation [or lack thereof] is not accurate”].) Here,
the department’s initial inquiry apparently included no extended family members at all.
13
We reject the notion that a reliable determination of a child’s Indian status can or should
be made from such a limited inquiry when other relatives are readily available and may
have different information.
DISPOSITION
The orders terminating mother’s and father’s parental rights to the children are
conditionally affirmed. We remand to the juvenile court for the department and the court
to comply with the inquiry and notice provisions of ICWA and California law consistent
with this opinion, including inquiring of extended family members. If the court finds the
children are Indian children, it shall conduct a new section 366.26 hearing, as well as all
further proceedings, in compliance with ICWA and related California law. If not, the
court’s original section 366.26 orders will remain in effect.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J.
I concur:
RAMIREZ
P. J.
14
[In re E.M., E081259]
MENETREZ, J., Dissenting.
I disagree with the majority opinion’s analysis and conclusion concerning the
Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.).1 I continue to
agree with In re Robert F. (2023) 90 Cal.App.5th 492, 497 (Robert F.), review granted
July 26, 2023, S279743, and In re Ja.O. (2023) 91 Cal.App.5th 672, 680 (Ja.O.), review
granted July 26, 2023, S280572, that the expanded duty of initial inquiry under
subdivision (b) of Welfare and Institutions Code section 224.2 (section 224.2(b)) applies
only if the child was placed into temporary custody without a warrant. (Unlabeled
statutory citations refer to the Welfare and Institutions Code.) For the reasons explained
in In re Andres R. (2023) 94 Cal.App.5th 828, 840-856 (Andres R.), review granted
November 15, 2023, S282054, I am not persuaded by the criticisms of Robert F. that
were expressed in In re Delila D. (2023) 93 Cal.App.5th 953 (Delila D.), review granted
September 27, 2023, S281447. (The majority opinion in Delila D. never cites Ja.O. and
does not address its analysis, even though Delila D. adopts a statutory interpretation that
was discussed and rejected in Ja.O.)
Since Andres R. was published in August 2023, four published opinions have
agreed with Delila D. that the duty to inquire of extended family members under section
224.2(b) is not limited to cases in which the children were placed into temporary custody
1 “[B]ecause ICWA uses the term ‘Indian,’ [I] do the same for consistency, even
though [I] 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.)
1
without a warrant: In re L.B. (Dec. 28, 2023, A167363) __ Cal.App.5th __ (2023
Cal.App. Lexis 1006) (L.B.); In re C.L. (2023) 96 Cal.App.5th 377 (C.L.); In re Jerry R.
(2023) 95 Cal.App.5th 388 (Jerry R.); and In re V.C. (2023) 95 Cal.App.5th 251 (V.C.).
Below I identify some of the reasons why I do not find those opinions persuasive.
Those reasons will be easier to explain, however, if I begin with a brief description
of the analysis with which I agree. First, the statutory analysis developed in Robert F.,
Ja.O., and Andres R. can be summarized as follows: (1) Section 224.2(b) provides that
there is a duty to conduct ICWA inquiry of extended family members “[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”; (2) subdivisions (a)(1) and
(a)(2) of section 306 describe the only ways a child can be placed into the temporary
custody of a county welfare department under section 306; (3) subdivision (a)(1) of
section 306 authorizes a social worker to “[r]eceive and maintain” “temporary custody”
of a child from a peace officer, and the only way a peace officer can take a child into
“temporary custody” is “without a warrant” pursuant to section 305, 305.6, or 625; (4)
subdivision (a)(2) of section 306 authorizes a social worker to take a child into
“temporary custody” “without a warrant”; (5) the only way a child can be placed into the
temporary custody of a county probation department pursuant to section 307 is if the
child was taken into temporary custody under section 305, which exclusively concerns
warrantless removals; so (6) the extended family inquiry duty under section 224.2(b) is
2
triggered only by warrantless removals.2 (See Andres R., supra, 94 Cal.App.5th at
pp. 841-845; Ja.O., supra, 91 Cal.App.5th at pp. 677-678; Robert F., supra, 90
Cal.App.5th at pp. 500-501.)
Second, the Legislature’s creation of a duty to conduct ICWA inquiry of extended
family members when a child is removed without a warrant makes sense because that is
what the Bureau of Indian Affairs (BIA) guidelines recommend. (U.S. Dept. of the
Interior, Guidelines for Implementing the Indian Child Welfare Act (Dec. 2016) (BIA
guidelines) pp. 23-24, 28, available at
<https://www.bia.gov/sites/default/files/dup/assets/bia/ois/pdf/idc2-056831.pdf> [as of
Jan. 22, 2024] [recommending extended family inquiry in cases of “emergency removal”
and defining emergency removal as removal “without court authorization”]; see Andres
R., supra, 94 Cal.App.5th at pp. 849-851; Ja.O., supra, 91 Cal.App.5th at pp. 680-681;
Robert F., supra, 90 Cal.App.5th at pp. 502-503.)
Third, the BIA guidelines’ recommendation and the Legislature’s decision to
follow it make sense because (among other reasons) the criteria for warrantless removal
2 Delila D. misdescribes the language of subdivision (a)(1) of section 306, asserting
that it “authorizes the social worker to ‘receive’ the child and ‘maintain’ them in
temporary custody.” (Delila D., supra, 93 Cal.App.5th at p. 971.) That is not what the
statute says. Rather, it authorizes the social worker to “[r]eceive and maintain . . .
temporary custody of a child who is described in Section 300, and who has been
delivered by a peace officer.” (§ 306, subd. (a)(1).) Thus, by its terms, the statute
authorizes the social worker to receive temporary custody. Consequently, the child must
already be in temporary custody before the child is delivered by the peace officer. Delila
D. elides the issue by incorrectly asserting that the statute authorizes the social worker to
receive the child, rather than receiving temporary custody of the child. That point was
made in Andres R., supra, 94 Cal.App.5th at pp. 842-843, but none of the cases following
Delila D. mentions it.
3
under both the BIA guidelines and California law include parental absence. (Andres R.,
supra, 94 Cal.App.5th at pp. 852-853; BIA guidelines, at p. 24 [warrantless removal is
permitted “when a young child is left without care or adequate supervision”]; § 305,
subd. (a) [warrantless removal is authorized if “the fact that the child is left unattended
poses an immediate threat to the child’s health or safety”].)
In my view, the contrary case law does not present a persuasive alternative
account. Given the statutory analysis summarized above, there would appear to be two
principal ways one might attempt to defend the conclusion that the extended family
inquiry duty under section 224.2(b) is not limited to warrantless removals: (1) One could
argue that children removed pursuant to protective custody warrants are placed into
temporary custody under section 306, or (2) one could argue that the conditional
language in section 224.2(b) is not a limitation at all, so the extended family inquiry duty
created by section 224.2(b) applies universally. Delila D. takes both approaches. (Delila
D., supra, 93 Cal.App.5th at pp. 971-972, 974.) All of the cases following Delila D.
adopt one or the other, but they all fail to address problems with both approaches that
were described in Andres R.
Two cases agree with Delila D.’s claim that a child taken into protective custody
pursuant to a protective custody warrant is placed into temporary custody pursuant to
section 306, so the extended family inquiry duty under section 224.2(b) applies to such
children. (Delila D., supra, 93 Cal.App.5th at pp. 971-972; Jerry R., supra, 95
Cal.App.5th at pp. 414-417; C.L., supra, 96 Cal.App.5th at p. 386.) But the cases do not
4
acknowledge a central problem with their position: Sometimes a child is not taken from
parental custody at all until the child is detained by court order at the detention hearing or
removed by court order at the disposition hearing. No one has argued (or could credibly
argue) that such children are placed into temporary custody under section 306. Thus,
even if section 306 applies to removals pursuant to protective custody warrants in
addition to warrantless removals, the extended family inquiry duty still would not be
universal—it would not apply to children who were not removed before the detention
hearing. That problem was identified in Andres R., supra, 94 Cal.App.5th at p. 857,
fn. 9, but none of the cases following Delila D. mentions it. As a result, the cases also
never explain why the Legislature would create one duty of inquiry for children removed
before the detention hearing and a different duty of inquiry for children who are first
removed at the detention hearing or later. I am aware of no rationale for such differential
treatment. In contrast, the differential treatment under Robert F., Ja.O., and Andres R. is
easily explained: The Legislature created an extended family inquiry duty for warrantless
removals because that is what the BIA guidelines recommend, and the recommendation
makes sense because (among other reasons) warrantless removals are often the result of
parental absence.
There is an additional problem with the claim that a child taken into protective
custody pursuant to a protective custody warrant is placed into temporary custody
pursuant to section 306. The cases making that claim assume that protective custody
warrants are executed by peace officers, and the cases infer that subdivision (a)(1) of
5
section 306—which concerns children delivered to social workers by peace officers—
applies. But protective custody warrants are not always executed by peace officers.
Rather, sometimes protective custody warrants are executed directly by social workers,
with no peace officer involved. For example, when a baby tests positive for illicit
substances at birth, the social worker might serve the protective custody warrant at the
hospital with no assistance from law enforcement. And even when peace officers are
involved, they do not necessarily take the children into custody themselves and then
deliver them to the social worker; rather, the peace officers might be present merely as a
show of force to support the social worker, who serves the warrant and takes delivery of
the children directly from the parents. If a child is not delivered to a social worker by a
peace officer but rather is taken into custody directly by the social worker (with or
without law enforcement assistance) pursuant to a protective custody warrant, then there
is not even an arguable basis to claim that the child was placed into temporary custody
under section 306. Section 224.2(b) therefore would not apply to such children, even if
Delila D.’s interpretation of subdivision (a)(1) of section 306 were correct. Again, Delila
D. and cases following it do not explain why the Legislature would create one duty of
inquiry for children removed by peace officers pursuant to warrants and a different duty
of inquiry for children removed by social workers pursuant to warrants. And again, I am
not aware of any rationale for such differential treatment.
Two cases agree with Delila D.’s argument that because section 224.2(b) begins
with the word “if” instead of the words “only if,” the statute’s conditional language does
6
not function as a limitation at all, so the duty created by section 224.2(b) applies even to
children who were not placed into temporary custody under section 306 or 307. (Delila
D., supra, 93 Cal.App.5th 974; V.C., supra, 95 Cal.App.5th at pp. 259-260; L.B., supra,
2023 Cal.App. Lexis 1006 at p. *5.) The argument was assessed and found meritless in
Andres R., supra, 94 Cal.App.5th at pp. 846-847, but the cases never mention, let alone
rebut, Andres R.’s analysis. In brief: The extended family inquiry duty was created and
imposed by section 224.2(b). No one argues (or could credibly argue) that without
section 224.2(b) there would still be a blanket duty to conduct ICWA inquiry of all
available extended family members in every case. The conditional language in
section 224.2(b), which identifies the circumstances triggering that duty, is the same as
the conditional language used in other statutes to identify the circumstances triggering
other ICWA-related duties. The duty of “further inquiry” is triggered “[i]f the court,
social worker, or probation officer has reason to believe that an Indian child is involved
in a proceeding.” (§ 224.2, subd. (e).) The duty to provide notice to the tribes is
triggered “[i]f the court, a social worker, or probation officer knows or has reason to
know . . . that an Indian child is involved.” (§ 224.3, subd. (a).) Neither of those
provisions says “only if”—they say that the duties arise “[i]f” the relevant circumstances
are present. But the provisions cannot be reasonably interpreted as imposing a duty of
further inquiry even if there is not reason to believe an Indian child is involved, or a duty
to provide notice to the tribes even if there is not reason to know an Indian child is
involved. The identical language in section 224.2(b) must be interpreted the same way.
7
It cannot be reasonably interpreted as imposing a duty to inquire of extended family even
if the child was not placed into temporary custody under section 306 or 307. (Andres R.,
supra, 94 Cal.App.5th at pp. 846-847.) Again, not one of the cases following Delila D.
addresses any of that analysis.
The cases’ treatment of other issues is no more convincing. Two cases endorse
Delila D.’s claim that “it simply doesn’t make sense to apply different initial inquiries
depending on how the child was initially removed from home.” (Delila D., supra, 93
Cal.App.5th at p. 975; V.C., supra, 95 Cal.App.5th at p. 260; L.B., supra, 2023 Cal.App.
Lexis 1006 at p. *5.) But neither of those cases ever mentions the BIA guidelines, which
were cited by Robert F., Ja.O., and Andres R. as explaining why creating an extended
family inquiry duty for warrantless removals does make sense. (Andres R., supra, 94
Cal.App.5th at pp. 849-851; Ja.O., supra, 91 Cal.App.5th at pp. 680-681; Robert F.,
supra, 90 Cal.App.5th at pp. 502-503.)
Jerry R. likewise never addresses the BIA guidelines. And Delila D.’s response
concerning the BIA guidelines consists of the puzzling assertion that Robert F.’s
“argument misconstrues the definition of an emergency removal under both the federal
regulations and California law.” (Delila D., supra, 93 Cal.App.5th at p. 973.) There is
no definition of emergency removal in the federal regulations, and California law of
course cannot tell us what the BIA guidelines mean by “emergency removal.” (Andres
R., supra, 94 Cal.App.5th at pp. 850-851.) The BIA guidelines, in contrast, do tell us that
8
emergency removals are removals “without court authorization,” i.e., warrantless
removals. (BIA guidelines, pp. 23-24.)
C.L. contains an extended discussion of federal law, ultimately concluding that “a
removal under section 340 [i.e., a removal pursuant to a protective custody warrant]
constitutes an emergency proceeding under the ICWA regulations.” (C.L., supra, 96
Cal.App.5th at pp. 388-390, italics added.) Whatever the merits of that conclusion and
the analysis on which it is based, it is nonresponsive to the simple point made in Robert
F., Ja.O., and Andres R.: The BIA guidelines recommend extended family inquiry for
emergency removals (not emergency proceedings, which are something else), and the
BIA guidelines define emergency removals as removals without court authorization, i.e.,
warrantless removals. (BIA guidelines, pp. 23-24, 28; Andres R., supra, 94 Cal.App.5th
at pp. 849-851; Ja.O., supra, 91 Cal.App.5th at pp. 680-681; Robert F., supra, 90
Cal.App.5th at pp. 502-503.) That recommendation explains the Legislature’s decision to
create a duty of extended family inquiry for warrantless removals.3
3 In addition, C.L.’s conclusion that “a removal under section 340 constitutes an
emergency proceeding under the ICWA regulations” (C.L., supra, 96 Cal.App.5th at
pp. 388-390) cannot be correct. The regulations define an emergency proceeding as “any
court action that involves an emergency removal or emergency placement of an Indian
child.” (25 C.F.R. § 23.2 (2023).) Although the issuance of a protective custody warrant
under section 340 might be described as a court action, a removal pursuant to such a
warrant is not a court action—it is something done in the field by a social worker or a law
enforcement officer executing the warrant. Similarly, although the issuance of an arrest
warrant might be described as a court action, an arrest pursuant to such a warrant is not a
court action—it is something done in the field by a law enforcement officer executing the
warrant. Because a removal under section 340 is not a court action, it cannot be an
emergency proceeding under the ICWA regulations.
9
Finally, both Delila D. and the cases following it appear to be based on the belief
that a blanket duty to inquire of all available extended family members in every case is
important for effective ICWA enforcement, so limiting that duty to warrantless removals
“would significantly undermine the purpose of ICWA.” (Delila D., supra, 93
Cal.App.5th at p. 976; see Jerry R., supra, 95 Cal.App.5th at p. 426 [the Robert F. rule
“subverts legislative intent and policy goals underlying California dependency law and
ICWA”]; L.B., supra, 2023 Cal.App. Lexis 1006 at p. *6 [the Robert F. rule “‘frustrates
the purpose of the initial inquiry’”].) In my view, that belief is radically mistaken.
ICWA’s protections apply only to children who are Indian children within the
meaning of ICWA. (In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1009 (Ezequiel G.).)
To be an Indian child within the meaning of ICWA, a child must be either (1) a member
of a federally recognized tribe or (2) eligible for membership and the biological child of a
member. (25 U.S.C. § 1903(4).) As Ezequiel G. explains, tribal membership “‘is
voluntary and typically requires an affirmative act by the enrollee or her parent.’”
(Ezequiel G., at p. 1009.) Thus, because being an Indian child requires that either the
child or a biological parent be a tribe member, and because tribal membership is
voluntary and typically requires an affirmative act, it is typically impossible for a child to
be an Indian child without the parents knowing about it. As a result, if both of a child’s
biological parents are available and deny Indian ancestry, then extended family inquiry is
all but guaranteed to be pointless. Such inquiry may uncover some claim of Indian
ancestry, but it typically cannot reveal that the child is an Indian child within the meaning
10
of ICWA unless the biological parents are deliberately concealing the information
(despite having every incentive to reveal it). For these reasons, a requirement to conduct
ICWA inquiry of all available extended family members in every case—even when the
biological parents are available and deny Indian ancestry—would appear to be of
negligible importance for effective ICWA enforcement.
In addition to those theoretical considerations, I am not aware of any empirical
evidence that such a requirement has been of any benefit to any tribe, any Indian family
or child, or anyone else. Anecdotally, my own conversations with dependency court
judges have yielded the results one would expect: Extended family inquiry sometimes
leads to the discovery of some claim of Indian ancestry, but it has never led to the
discovery of an Indian child within the meaning of ICWA when both parents denied
Indian ancestry. To my knowledge, attempts to gather data in a systematic manner
statewide have produced similar findings.
On the other side of the ledger, the judiciary’s mistaken assumption that there is a
universal requirement of extended family inquiry has created considerable extra work for
already overburdened social workers and juvenile court judges. And that extra work has
inevitably created increased opportunities for error, causing widespread disruption in
dependency litigation and delaying permanency for hundreds of dependent children. I do
not mean to suggest that those costs, though surely nontrivial, are so high that they could
not possibly be justified by countervailing benefits. Rather, the point is that requiring
11
ICWA inquiry of all available extended family members in every case is far from costless
but in all likelihood produces no benefits.
The foregoing considerations suggest that what “simply doesn’t make sense”
(Delila D., supra, 93 Cal.App.5th at p. 975) is that the Legislature would impose a
requirement that appears to be all cost and no benefit in the first place. Fortunately, as
Robert F., Ja.O., and Andres R. explain, the statutory language shows that the Legislature
did no such thing. Instead, it did something far more reasonable. It required extended
family member inquiry only in the subclass of cases in which the children were initially
taken from parental custody without court authorization, just as the BIA guidelines
recommend. The BIA’s recommendation and the Legislature’s decision to follow it
make sense, because extended family member inquiry is important if the parents are not
available, and parental absence is one of the criteria for warrantless removal under both
the BIA guidelines and California law.
Finally, I wish to emphasize that the importance of scrupulous compliance with
ICWA cannot be overstated. ICWA is antigenocide legislation, and to my knowledge it
is the most significant federal legislative victory for Indian rights in the history of the
United States. (See Haaland v. Brackeen (2023) 599 U.S. __ [143 S.Ct. 1609, 1641]
(conc. opn. of Gorsuch, J.) [ICWA was a response to federal, state, and private attacks on
the Indian family that “presented an existential threat to the continued vitality of
Tribes”].) Rigorous enforcement of ICWA is therefore not only legally but also morally
imperative.
12
But more ICWA inquiry does not always mean more or better ICWA enforcement.
If in the future the Legislature decides that the negligible benefits of a universal duty of
extended family inquiry are worth the nontrivial costs, and the Legislature enacts such a
duty—perhaps by deleting or revising the conditional language in section 224.2(b)—then
that legislative command must be rigorously enforced, just like every other part of ICWA
and related California law. But as far as I can determine from the statutory language and
the authorities and analysis adduced to date, no such legislative command currently
exists.
For all of the foregoing reasons, I continue to believe that the duty to inquire of
extended family members under section 224.2(b) is triggered only if the children were
taken into temporary custody without a warrant, which did not occur in this case.
Accordingly, I believe that the order terminating parental rights should be affirmed, and I
respectfully dissent.
MENETREZ
J.
13