DocketNumber： B318627
Filed Date： 12/14/2022
Status： Precedential
Modified Date： 12/14/2022
Filed 12/14/22 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE In re ADRIAN L., B318627 a Person Coming Under the (Los Angeles County Juvenile Court Law. Super. Ct. No. 19CCJP01922) LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. SUSIE R., Defendant and Appellant. APPEAL from an order of the Superior Court of Los Angeles County, Robin R. Kesler, Judge Pro Tempore. Affirmed. Emery El Habiby, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Sally Son, Deputy County Counsel, for Plaintiff and Respondent. _____________________ Susie R. (Mother) appeals from the juvenile court order terminating her parental rights to her child Adrian L. pursuant to Welfare and Institutions Code section 366.26.1 She contends the Los Angeles County Department of Children and Family Services (DCFS) did not comply with its duty under section 224.2, subdivision (b) to inquire of extended family members, including maternal grandmother, paternal grandmother, and paternal aunt, regarding Adrian’s potential status as an Indian child as defined in the Indian Child Welfare Act of 1978 (ICWA;25 U.S.C. § 1901
et seq.). Thus, she argues, DCFS did not “adequately 1 Subsequent unspecified statutory references are to the Welfare and Institutions Code. Mother’s notice of appeal and the introduction of her opening brief state she also appeals the juvenile court’s order denying her section 388 petition. Because Mother does not provide any argument relating to this order, however, the issue has been waived on appeal. (Nelson v. Avondale Homeowners Assn. (2009)172 Cal.App.4th 857
, 862 [“Appellate briefs must provide argument and legal authority for the positions taken. ‘When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived’ ”]; In re Marriage of Falcone & Fyke (2008)164 Cal.App.4th 814
, 830 [“We are not bound to develop appellants’ arguments for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contentions as waived”].) 2 investigate[ ]” Adrian’s Indian status, and we should reverse the juvenile court’s order terminating Mother’s parental rights and remand the matter for ICWA compliance. DCFS argues we should hold that any error in failing to interview extended family members was harmless because the record does not demonstrate that any such inquiry would bear meaningfully on the question of whether Adrian is an Indian child.2 In light of the facts in the record, which include the parents’ denials of Indian affiliation, as well as extensive efforts by Mother, Mother’s counsel, extended family members, and minor’s counsel, to have Adrian placed with the extended family members, we conclude additional inquiry would not have yielded information that was likely to bear meaningfully on the question of whether Adrian is an Indian child. Accordingly, any failure to inquire of extended family members was harmless. We thus affirm. 2 DCFS also argues substantial evidence supports the juvenile court’s determination that ICWA did not apply to Adrian. Because we affirm on the basis that any ICWA inquiry error was harmless, we do not consider this alternative argument. 3 FACTUAL AND PROCEDURAL BACKGROUND3 A. Petition and Non-detention In February 2019, Mother, newborn Adrian, and maternal grandmother resided together in Duarte, California. Adrian L. Sr. (Father), lived in Las Vegas, Nevada. On February 13, 2019, DCFS received a referral relating to Adrian. The referral concerned Mother’s history of substance abuse and her failure to reunify with Adrian’s three older half- siblings, who were dependents of the juvenile court and receiving permanent placement services. On March 15, 2019, a foster care provider finalized adoption of these siblings. On March 25, 2019, DCFS filed a petition on behalf of Adrian pursuant to section 300, subdivisions (b)(1) and (j). At the March 26, 2019, detention hearing, the juvenile court found a prima facie case that Adrian was a child described under section 300 and, finding services were available to prevent detention, ordered Adrian released to Mother under DCFS supervision. The juvenile court also found Adrian Sr. to be the presumed father. B. Jurisdiction and Disposition On May 15, 2019, the juvenile court held a combined jurisdictional and dispositional hearing. At the hearing, the juvenile court sustained an amended count under section 300, subdivision (b)(1), relating to Mother’s substance abuse. It 3 This appeal turns on issues relating to the sufficiency of DCFS’s ICWA inquiry. Thus, we provide only a brief summary of the dependency proceedings and focus on facts relevant to the ICWA inquiry. 4 ordered Adrian removed from Father’s custody and released to Mother with the provision of family maintenance services.4 Through September 2020, Mother and Adrian moved between maternal grandmother’s home and inpatient substance abuse programs or sober living residences. C. Proceedings Following Subsequent and Supplemental Petitions and Detention Adrian remained with Mother until October 2, 2020, when the juvenile court granted DCFS’s request for an expedited removal order pursuant to section 340, subdivision (b). DCFS filed a subsequent petition alleging Mother had mental and emotional problems, including suicidal ideation, as well as a supplemental petition seeking foster placement due to Mother testing positive for amphetamine and methamphetamine. On October 9, 2020, the juvenile court ordered Adrian detained from Mother. Additionally, it ordered DCFS to assess the maternal grandmother, paternal grandmother, and paternal aunt for placement.5 In the meantime, DCFS placed Adrian with a foster mother. On January 20, 2021, Mother entered a no contest plea, and the juvenile court sustained allegations of suicidal ideation 4 Father did not receive family reunification services because he was in jail at the time. Father, who died during the pendency of the dependency proceedings, is not a party to this appeal. 5 In January 2021, DCFS reported the paternal grandmother and paternal aunt were not interested in caring for Adrian because they were currently caring for Father’s other children. 5 and recent substance abuse. The juvenile court ordered DCFS to assess maternal grandmother for placement. The following day, Mother reported to the social worker that she no longer wanted to participate in a particular outpatient substance abuse program, and she wanted a family member to adopt Adrian. In an April 7, 2021, last minute information (LMI), DCFS reported that Father died after he had been stabbed multiple times at the maternal grandmother’s home in February 2021. Mother was arrested for his homicide. In the LMI, DCFS also reported its findings relating to relative placement. DCFS recommended against placing Adrian with maternal grandmother because she had allowed Father to have unmonitored contact with Adrian in violation of court orders and was not forthcoming about Father’s whereabouts. Also, the maternal uncles who lived in maternal grandmother’s home hosted parties, which had the effect of triggering Mother to relapse into drug use. Further, maternal grandmother worked full time, and thus maternal uncles would have had to care for Adrian. The social worker noted she had observed one of the maternal uncles “high” and smelling of marijuana. On April 7, 2021, the juvenile court ordered DCFS to interview Mother, maternal grandmother, and maternal uncle about Adrian’s placement and to assess placement of Adrian “with any appropriate relative.” It also ordered monitored visitation for maternal grandmother and a maternal uncle. In a May 18, 2021, LMI, DCFS reported its most recent findings relating to relative placement. Mother wanted Adrian placed with the same legal guardian with whom Adrian’s two minor half-siblings were placed. Maternal grandmother and maternal uncle renewed their desire to have Adrian placed with 6 them. Also, a paternal aunt, Veronica G. (Veronica), who lived with paternal grandparents, had visited Adrian since his birth, and had acted as a monitor for Adrian’s visits with Father, sought to have Adrian placed with her.6 DCFS also reported that another paternal aunt, Claudia M. (Claudia), expressed interest in caring for Adrian, whom she had met for the first time at Father’s funeral. In July 2021, DCFS approved Veronica for placement. Because she worked three jobs and had other children in the home during the summer, Veronica was unable to commit to taking Adrian to continued developmental assistance services and could not immediately provide a date on which she would begin to host him overnight. DCFS reported it would conduct a further assessment relating to placement with Veronica. The foster mother continued to express interest in having Adrian placed with her. At the August 5, 2021, six-month review hearing, the juvenile court found Mother’s progress had not been substantial, terminated family reunification services, and scheduled a section 366.26 permanency planning hearing. On August 10, 2021, Mother filed a notice of intent to file a writ petition contesting the juvenile court’s order scheduling a section 366.26 hearing. Mother did not file the writ petition, however, and it was deemed non-operative. On September 10, 2021, minor’s counsel filed a walk-on request with the juvenile court as well as a section 388 petition. Minor’s counsel stated, “DCFS has stopped overnight visits with 6 Veronica had a criminal history, but she obtained an exemption that would allow her to have Adrian placed with her. 7 the paternal aunt [Veronica], who I understood was moving toward placement with the minor. I was not provided with an explanation and ha[ve] since been in contact with the aunt, who states she was not given an explanation and has been working toward placement with the minor . . . . The child is in foster care and is in need of a permanent plan that includes a relative before the next court date if she is to be considered.” Minor’s counsel argued, “[s]ection 361.3 provides that preferential consideration be given to relative placements.” Minor’s counsel requested that the juvenile court, “[r]einstate overnight visits and placement assessment for the paternal aunt.” On October 29, 2021, Veronica sent a letter to the juvenile court, challenging DCFS’s characterization of her lack of ability and interest in providing a home to Adrian. In a report filed November 2, 2021, DCFS repeated its reasons for concluding that maternal grandmother’s home was not a good option for placement. As to Veronica, DCFS reported she would request time off from work to ensure Adrian’s needs were met. However, she was unwilling to take Adrian to visit maternal relatives or Mother in jail. DCFS concluded that, notwithstanding Veronica’s current commitment to provide all the required care for Adrian, Adrian, who had special developmental needs, “would not receive the same committed and detailed care” in Veronica’s home as he did with the foster mother with whom he had lived since October 2020. Moreover, Adrian’s doctor reported concern that Adrian would “regress” if removed from the caregiver and placed with Veronica. Thus, DCFS recommended Adrian remain placed with the foster mother. On November 4, 2021, minor’s counsel withdrew the section 388 petition. 8 On November 24, 2021, Mother’s counsel filed a section 388 petition, noting her successful completion of multiple programs. She requested that Adrian reside with the maternal grandmother while Mother remained incarcerated or, in the alternative, that Mother’s family reunification services be reinstated. On November 29, 2021, the parties appeared before the juvenile court for the section 366.26 hearing. At that time, the juvenile court denied Mother’s section 388 petition without a hearing on the basis that Mother did not present new evidence or changed circumstances. The juvenile court also denied a pro se section 388 petition filed by Claudia, who continued to request that Adrian be placed with her. The juvenile court continued the section 366.26 hearing to February 7, 2022. On February 7, 2022, the juvenile court found Adrian was adoptable and no exception to termination of parental rights applied and terminated parental rights to Adrian. D. ICWA Proceedings On March 25, 2019, DCFS filed an Indian Child Inquiry Attachment form with the original section 300 petition. DCFS reported it had inquired of Mother as to any possible Indian ancestry on February 19, 2019, and Mother denied any such ancestry. On March 26, 2019, Mother denied Indian ancestry on her parental notification of Indian status (ICWA-020) form.7 At the 7 The ICWA-020 form advises parents, “If you get new information that would change your answers, you must let your attorney, all the attorneys on the case, and the social worker . . . know immediately and an updated form must be filed with the court.” 9 detention hearing that day, the juvenile court asked Mother whether Father had any Indian heritage. Mother responded, “No.” The juvenile court found no reason to know ICWA applied as to Mother and deferred the determination of ICWA status for Father’s appearance. On October 9, 2020, Father’s counsel executed an ICWA- 020 form on Father’s behalf. Reflected on that form is Father’s denial that Adrian had Indian ancestry. On the same day, Father and his counsel were present in court. The juvenile court reviewed Father’s ICWA-020 form out loud, noting Father indicated “no Indian ancestry as far as he knows.” Neither Father nor his counsel corrected the juvenile court. On January 20, 2021, the court ordered a case plan for each parent, which included a checked box indicating that the juvenile court found ICWA did not apply to Mother or to Father.8 On November 29, 2021, the juvenile court found ICWA did not apply to the case. On February 14, 2022, Mother filed a timely notice of appeal. DISCUSSION The juvenile court and DCFS “have an affirmative and continuing duty to inquire whether a child for whom a [section 300] petition . . . has been filed, is or may be an Indian child.”9 8 Father’s death occurred in February 2021. 9 An “Indian child” is an unmarried person under 18 years of age who is (1) a member of a federally recognized Indian tribe or (2) is eligible for membership in a federally recognized tribe and is the biological child of a member of a federally recognized 10 (§ 224.2, subd. (a).) Additionally, section 224.2, subdivision (b) states, that “[i]f a child is placed into the temporary custody of a county welfare agency pursuant to [s]ection 306 . . . the county welfare department . . . has a duty to inquire whether that child is an Indian child. Inquiry includes, but is not limited to, asking the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian child and where the child, the parents, or Indian custodian is domiciled.”10 Mother argues that DCFS breached its duty of inquiry under section 224.2, subdivision (b), to inquire of extended family members “like the maternal grandmother, paternal grandmother, and paternal aunt whether Adrian might have Indian ancestry.” She contends that the failure to conduct this “first-step inquiry” was prejudicial. We disagree. As our prior decisions make clear, DCFS’s failure to inquire of extended family members does not result in automatic reversal. (See In re A.C. (2022)75 Cal.App.5th 1009
; tribe. (25 U.S.C. § 1903
(4) & (8); see § 224.1, subd. (a) [adopting federal definitions], subd. (b) [expanding the age range stated in the federal definition to include persons over 18, but under 21, years of age].) 10 Under ICWA, the term “extended family member” is “defined by the law or custom of the Indian child’s tribe or, in the absence of such law or custom, shall be a person who has reached the age of eighteen and who is the Indian child’s grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin or stepparent.” (25 U.S.C. § 1903
(2).) 11 In re S.S. (2022)75 Cal.App.5th 575
; In re Darian R. (2022)75 Cal.App.5th 502
.) Instead, we must examine the record and reverse or remand only if that review shows prejudice because there was “information that was likely to bear meaningfully upon whether the child is an Indian child.” (In re Darian R., supra, at p. 509, quoting In re Benjamin M. (2021)70 Cal.App.5th 735
, 744.) The appellate record does not demonstrate that inquiring of maternal grandmother, paternal grandmother, or paternal aunt would have yielded information likely to bear meaningfully on the court’s ICWA determination. Mother had at least three opportunities to advise the juvenile court that Adrian was possibly an Indian child. First, DCFS interviewed Mother pre-petition about Adrian’s possible Indian heritage. Second, Mother also filled out an ICWA-020 form prior to her first court appearance. Although the only box on the form that Mother checked stated, “I have no Indian ancestry as far as I know,” she opted not to check other boxes on the form which inquired (1) if she was a member or eligible for membership in any Indian tribe, (2) if Adrian was a member or eligible for membership in any Indian tribe, and (3) if Mother’s parents, grandparents or other lineal ancestors is or were members of any Indian tribe.11 11 We emphasize this because the test for whether ICWA applies does not turn on whether a child has “Indian ancestry,” although that is often used as a shorthand reference for the subject of factual inquiries that may bear on the ultimate question whether a child is or may be an “Indian child.” Our colleagues in Division Three recently made the point succinctly in 12 Third, the juvenile court asked Mother whether Father had any Indian ancestry. In each instance, Mother denied any Indian affiliation. On the day of his first appearance, Father also filed an ICWA-020 form in which he denied any Indian ancestry. When the juvenile court noted Father’s denial in court, Father and his counsel did not correct the juvenile court. The existence of parental denials of Indian ancestry, including denials on Judicial Council forms, does not, standing alone, establish a lack of prejudice. We consider such denials along with the rest of the record to determine if the failure to In re Ezequiel G. (2022)81 Cal.App.5th 984
, 1009 (“it is important to note that ‘ICWA does not apply simply based on a child or parent’s Indian ancestry.’ [Citation.] Instead, the ‘definition of “Indian child” ’ is ‘based on the child’s political ties to a federally recognized Indian Tribe, either by virtue of the child’s own citizenship in the Tribe, or through a biological parent’s citizenship and the child’s eligibility for citizenship’ ”). The point is nuanced but particularly salient in light of the current equal protection challenge to ICWA pending before the United States Supreme Court, in which the parties are sharply divided on the question of whether ICWA makes impermissible racial classifications or permissible distinctions based on political affiliations. (See Brackeen v. Haaland (5th Cir. 2021)994 F.3d 249
, cert. granted Feb. 28, 2022, No. 21-376, ___U.S. ___ [142 S.Ct. 1205
,212 L.Ed.2d 215
]; compare brief for petitioner State of Texas (May 26, 2022)2022 WL 1785628
at p. *19 [“ICWA violates the Constitution’s equal-protection guarantee by categorizing children based on genetics and ancestry”] with Merits Brief for the Federal Parties (Aug. 1, 2022)2022 WL 3449156
at p. *61 [“whether a child is an ‘Indian child’ under ICWA[ citation], turns on the child’s connection to an Indian tribe—the paradigmatic example of a ‘political rather than racial’ classification”].) 13 make ICWA inquiries of other family members deprived the juvenile court of information “likely to bear meaningfully upon whether the child is an Indian child.” (In re Darian R., supra, 75 Cal.App.5th at p. 509.) Here, the record does not disclose a reason to conclude that inquiring of maternal grandmother, paternal grandmother, or paternal aunt would have yielded different information. Mother and Father were close to their respective families. Mother and (to a lesser extent) Father resided with maternal grandmother and maternal uncles at various times throughout the proceedings. Father maintained a relationship with his sister, Veronica, who also lived with paternal grandparents as well as Father’s two other children. Thus, it is unlikely maternal grandmother, paternal grandmother, or paternal aunt had knowledge of Adrian’s possible tribal affiliation superior to Mother’s and Father’s disclaimer of any such ancestry. (Cf. In re A.C., supra, 75 Cal.App.5th at p. 1016 [where Mother herself had been a product of foster care and “may not have known her cultural heritage”]; In re Y.W. (2021)70 Cal.App.5th 542
, 554 [remanding for ICWA inquiry in matter where appealing parent was adopted and estranged from her parents].) Further, as this court observed in In re S.S., supra,75 Cal.App.5th 575
, because preference is given to placing an Indian child with extended family (25 U.S.C. § 1915
(a) & (b)), there is a strong incentive to bring to the juvenile court’s attention facts suggesting that a child is an Indian child. (In re S.S., supra, at p. 582.) Here, Mother and her counsel repeatedly (and unsuccessfully) urged the juvenile court to place Adrian with maternal grandmother. Further, paternal aunt, Veronica (with whom paternal grandparents lived), engaged in significant efforts 14 to have Adrian placed with her. Minor’s counsel, to some extent, aided Veronica in this endeavor, arguing to the juvenile court that the dependency statutes favor placement with relatives. Yet neither Mother, her attorney,12 maternal grandmother, Veronica, or minor’s counsel indicated that Adrian may be an Indian child. That they did not so do implies the extended family members are unaware of facts that would bear meaningfully upon the issue. Although In re S.S., supra, 75 Cal.App.5th at page 582 focused on the incentive to bring forth information regarding a child’s potential status as an Indian child based on the placement preference for extended family members, there are other incentives for a parent and the parent’s relatives to bring ICWA information to the attention of the court that also warrant consideration in connection with our harmless error assessment. Of particular relevance here is the fact that “[i]n cases in which the ICWA applies, the juvenile court cannot order that the Indian child be placed in foster care unless it finds by clear and convincing evidence that the evidence, including expert testimony, establishes that continued custody by the parent or 12 Los Angeles County local court rule 7.17 requires parents’ attorneys to ask their clients whether they have a reason to believe their child is an Indian child and to make every effort to assist in confirming the child’s Indian status. (Super. Ct. L.A. County, Local Rules, rule 7.17(a), (e)(3).) Moreover, the rule requires parents’ counsel to “have a complete familiarity with the facts of the case by reviewing the court file.” (Id., rule 7.17(e)(5).) Thus, we may reasonably infer that Mother’s attorney would have been aware of the placement preferences for Indian children and motivated to assist in Mother’s efforts to have Adrian placed with relatives. This lends further support to our conclusion that Mother fails to show prejudice. 15 Indian custodian is likely to cause the child serious emotional or physical damage [25 U.S.C. § 1912
(e)]. This finding must be made at the disposition hearing.” (Seiser & Kumli, 1 Cal. Juvenile Courts Practice & Procedure (2022) § 2.125; see In re Austin J. (2020)47 Cal.App.5th 870
, 882.) Thus, in 2021, when Mother was facing the prospect that the court would consider removing Adrian from her care at the disposition hearing, she would have had the benefit of this higher standard of proof if there were “reason to know” Adrian was an Indian child.13 Additionally, when termination of parental rights is sought, the evidence, including expert testimony, must establish beyond a reasonable doubt that the continued custody of the Indian child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. (25 U.S.C. § 1912
(f); § 366.26, subd. (c)(2)(B)(ii).) California requires this finding supporting the termination of parental rights be made “at the hearing terminating parental rights.” (§ 366.26, subd. (c)(2)(B)(ii).) This enhanced burden of proof that DCFS would have faced if there had been reason to know Adrian was an Indian child, provided additional incentive for Mother and her family members to bring forward information bearing on whether Adrian was an Indian child. In sum, our review of the record as a whole does not disclose that unquestioned extended family members were likely to have had information that would have borne meaningfully on 13“When there is reason to know that the child is an Indian child, the court shall treat the child as an Indian child unless and until the court determines . . . that the child does not meet the definition of an Indian child as used in [s]ection 224.1 and the federal [ICWA].” (§ 224.2, subd. (i)(1).) 16 whether Adrian is an Indian child. Accordingly, any ICWA inquiry error under section 224.2, subdivision (b) was harmless. DISPOSITION The juvenile court’s order is affirmed. CERTIFIED FOR PUBLICATION KELLEY, J.* We concur: CHANEY, J. BENDIX, Acting P. J. *Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 17 KELLEY, J., Concurring. I concur in the majority opinion which concludes that any Indian Child Welfare Act of 1978 (ICWA;25 U.S.C. § 1901
et seq.) inquiry error in this case is harmless because it did not prejudice the juvenile court’s ultimate finding that ICWA did not apply. I write separately because I conclude that DCFS did not in fact fail to make statutorily required ICWA inquiries. The foundation of Susie R.’s (Mother) appeal is her contention that the Los Angeles County Department of Children and Family Services (DCFS) was required to interview extended family members about Adrian L.’s potential Indian status under Welfare and Institutions Code1 section 224.2, subdivision (b). The subdivision states, “If a child is placed into temporary custody of a county welfare department pursuant to [s]ection 306 . . . , the county welfare department . . . has a duty to inquire whether that child is an Indian child. Inquiry includes, but is not limited to, asking . . . extended family members. . . .” (Ibid.) Mother claims this error, which in her view occurred at the outset of the case in 2019, and thereafter remained uncured, undermined the juvenile court’s subsequent decisions predicated on a finding that ICWA did not apply, including the ultimate order issued on February 7, 2022, terminating parental rights. Mother’s contention that DCFS violated section 224.2, subdivision (b) is based on a reading of that provision that is inconsistent with the plain language of the text. It also conflicts with the Legislature’s express rejection of language that would 1Subsequent unspecified statutory references are to the Welfare and Institutions Code. have supported Mother’s contention that DCFS had a duty to ask extended family members about Indian ancestry under the circumstances present in this case. Finally, Mother’s claim of error is inconsistent with the federal ICWA guidance upon which our Legislature modeled the narrower ICWA inquiry duty it created in section 224.2, subdivision (b).2 To begin the analysis, it is helpful to emphasize a few aspects of the procedural history of this case. During DCFS’s initial investigation, it did not remove Adrian from his parents. Nor did it seek to detain him when it filed the original section 300 petition. The juvenile court conducted a detention hearing on March 26, 2019, and did not detain him from Mother at that time. The court took jurisdiction over the child based on Mother’s waiver at a later hearing held on May 15, 2019. Yet, throughout these early proceedings in the juvenile court, and then for another year thereafter, Adrian remained in Mother’s custody. On October 2, 2020, DCFS sought an expedited ruling on its application for an order authorizing removal of Adrian pursuant to the procedures for obtaining a protective custody warrant in section 340, subdivision (b).3 The juvenile court ultimately issued the requested protective custody warrant. 2 Mother and DCFS have submitted supplemental letter briefs addressing the statutory construction issues in this case in response to our invitation to do so. Both Mother and DCFS state section 224.2, subdivision (b) requires DCFS to ask extended family members about a child’s Indian status no matter how the child came into DCFS’s temporary custody. 3 Section 340, subdivisions (a) and (b) permit the juvenile court to issue a protective custody warrant as follows: 2 Why do these facts matter in resolving the ICWA inquiry question in this case? They matter because the statute we are asked to apply very clearly says that they matter. A. Under the Plain Language of Section 224.2, Subdivision (b), There Was No Requirement to Question Extended Family Members The analysis begins with the statutory language. Section 224.2, subdivision (b) provides as follows: “If a child is placed into the temporary custody of a county welfare department pursuant to [s]ection 306 . . . , the county welfare department . . . has a duty to inquire whether that child is an Indian child. Inquiry includes, but is not limited to, asking the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian “(a) Whenever a petition has been filed in the juvenile court alleging that a minor comes within [s]ection 300 and praying for a hearing on that petition, or whenever any subsequent petition has been filed praying for a hearing in the matter of the minor and it appears to the court that the circumstances of his or her home environment may endanger the health, person, or welfare of the minor, or whenever a dependent minor has run away from his or her court-ordered placement, a protective custody warrant may be issued immediately for the minor.” “(b) A protective custody warrant may be issued without filing a petition under [s]ection 300 if the court finds probable cause to support all of the following: [¶] (1) The child is a person described in [s]ection 300. [¶] (2) There is a substantial danger to the safety or to the physical or emotional health of the child. [¶] (3) There are no reasonable means to protect the child’s safety or physical health without removal.” 3 child and where the child, the parents, or Indian custodian is domiciled.” (Italics added.) Section 306 provides in relevant part: “(a) Any social worker in a county welfare department, . . . while acting within the scope of his or her regular duties under the direction of the juvenile court and pursuant to subdivision (b) of [s]ection 272, may do all of the following: [¶] (1) Receive and maintain, pending investigation, temporary custody of a child who is described in [s]ection 300, and who has been delivered by a peace officer.[4] [¶] (2) Take into and maintain temporary custody of, without a warrant, a child who has been declared a dependent child of the juvenile court under [s]ection 300 or who the social worker has reasonable cause to believe is a person described in subdivision (b) or (g) of [s]ection 300, and the social worker has reasonable cause to believe that the child has an immediate need for medical care or is in immediate danger of physical or sexual abuse or the physical environment poses an immediate threat to the child’s health or safety.” As caselaw recognizes, “[s]ection 306, subdivision (a)(2) empowers a social worker to take a child into temporary custody under certain circumstances, without a warrant, if the child is in immediate danger.” (M.L. v. Superior Court (2009)172 Cal.App.4th 520
, 527.) Despite the large number of recent appeals based on DCFS’s failure to make inquiries of “extended family members,”5 4Section 305 also permits a peace officer to take temporary custody of a child without a warrant in certain circumstances. 5In re Ezequiel G. (2022)81 Cal.App.5th 984
, 1001 observed that in a 12-month period, at least 100 cases have been remanded for such further inquiry after termination of parental 4 no case appears to have confronted the question of why the prefatory clause in section 224.2, subdivision (b) should be interpreted as meaning something other than what it plainly says—that the inquiry obligation expressed in this subdivision is triggered when the child is “placed into the temporary custody of a county welfare department pursuant to [s]ection 306.” (Ibid.) A fundamental tenet of statutory construction is that we begin by examining the words of the statute. “[T]he language used in a statute or constitutional provision should be given its ordinary meaning, and ‘[i]f the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature (in the case of a statute) or of the voters (in the case of a provision adopted by the voters).’ [Citation.] To that end, we generally must ‘accord[ ] significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose,’ and have warned that ‘[a] construction making some words surplusage is to be avoided.’ [Citation].” (People v. Valencia (2017)3 Cal.5th 347
, 357.) “ ‘ “ ‘If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend.’ ” ’ ” (Brennon B. v. Superior Court (2022)13 Cal.5th 662
, 673.) These principles fully apply in dependency cases. “ ‘ “[I]f the statutory language is not ambiguous, then we presume the Legislature meant what it said, and the plain meaning of the language governs.” ’ rights. This does not include the cases where the juvenile court orders were affirmed because the initial inquiry error was found not to be prejudicial. 5 [Citations].” (Melissa R. v. Superior Court (2012)207 Cal.App.4th 816
, 822 (Melissa R.).) Accordingly, the initial question in this case is: Was Adrian “placed into the temporary custody [of DCFS] pursuant to [s]ection 306” at the outset of the juvenile court proceeding? Clearly, he was not. He was not removed from Mother at all prior to, or in connection with, the filing of the original section 300 petition in March 2019. He remained in her care for more than 17 months thereafter. Thus, the specific ICWA inquiry prescribed by section 224.2, subdivision (b) was not implicated at the outset of this case.6 But what about later when DCFS sought to remove Adrian from Mother’s custody in October 2020? Was the duty to question 6 Of course, this does not mean that there was no duty of ICWA inquiry. In fact, two provisions applied. First, the general duty of inquiry specified in section 224.2, subdivision (a) was fully applicable. That subdivision states, “The court, county welfare department, and the probation department have an affirmative and continuing duty to inquire whether a child for whom a petition under [s]ection 300, 601, or 602 may be or has been filed, is or may be an Indian child. The duty to inquire begins with the initial contact, including, but not limited to, asking the party reporting child abuse or neglect whether the party has any information that the child may be an Indian child.” (Ibid.) Significantly, this provision omits any mention of a specific obligation to ask extended family members about ICWA, and Mother does not assert there was a failure to undertake this general inquiry under section 224.2, subdivision (a). Second, section 224.2, subdivision (c) requires specific ICWA inquiries of the “parties” and “participants” at the initial dependency hearings. Again, Mother does not contend the juvenile court or DCFS failed to conduct these inquiries. 6 “extended family members” described in section 224, subdivision (b) triggered then? The answer also appears to be “no.” There can be no dispute that Adrian was not placed into DCFS’s temporary custody “pursuant to section 306” in October 2020. Instead, DCFS acted under an entirely different procedure that authorizes the juvenile court to issue protective custody warrants—namely, the warrant procedure pursuant to section 340, subdivision (b). Based upon a showing that Mother had relapsed into methamphetamine use and demonstrated mental instability in the form of suicidal thoughts, DCFS obtained a court order that authorized removal of Adrian from Mother’s custody. Section 306 played no role in this removal. Placing a child into “temporary custody of a county welfare department pursuant to [section] 306” is fundamentally different from taking a child into “protective custody” under section 340. Beyond the obvious feature that one process requires a court order and the other does not, these provisions are found in entirely different articles of the Juvenile law.7 The two provisions also have different standards that must be met to justify removal. Section 306 requires “imminent physical damage or harm” before a child may be removed without a warrant (id., subd. (c)), but section 340 does not have such a strict standard (id., subds. (a), (b)). Under section 340, a court may issue a warrant without a prior filing of a section 300 petition where “[t]here is a substantial danger to the safety or to the physical or 7Section 306 is part of article 7 which is entitled “Dependent Children—Temporary Custody and Detention.” Section 340 is part of article 8 which is entitled “Dependent Children—Commencement of Proceedings.” 7 emotional health of the child.” (Id., subd. (b)(2), italics added.) It thus requires neither imminent nor physical harm. As discussed, post, this difference is significant under federal ICWA law because a removal under section 306 is considered an “emergency removal” under ICWA, but a removal pursuant to an order issued under section 340 is not. This distinction illuminates why the legislative choice to limit the scope of section 224.2, subdivision (b) to situations where a child is placed in temporary custody of a county welfare agency pursuant to section 306 aligns it with federal ICWA guidance. The limitation expressed in section 224.2, subdivision (b) through the phrase when “a child is placed into the temporary custody . . . pursuant to [s]ection 306” is the kind of express statutory limitation that courts have not hesitated to find “clear and unambiguous, rendering it unnecessary to resort to any extrinsic aids.” (Melissa R., supra, 207 Cal.App.4th at p. 822.) Melissa R. concerned section 361.5, subdivision (b)(10), which permits a court to bypass a parent from reunification services where the parent “had failed to reunify with [a] sibling or half sibling after the sibling or half sibling had been removed from that parent . . . pursuant to [s]ection 361.” (§ 361.5, subd. (b)(10); Melissa R., supra, at p. 822.) In Melissa R., the sibling with whom the parent had failed to reunify was removed from the parent in Wisconsin, “not ‘pursuant to [s]ection 361.’ ” (Melissa R., supra, at p. 822.) The court held that the limitation “pursuant to section 361” was clear and had to be enforced. It thus found section 361.5, subdivision (b)(10) did not apply. (Melissa R., supra, at p. 822.) “The plain language of the statute is limited to cases involving the removal of a sibling or half sibling from the parent ‘pursuant to [s]ection 361.’ . . . The 8 Legislature did not include any language that would permit the extension of this provision to a circumstance in which a sibling was previously removed pursuant to the dependency law of another jurisdiction, whether or not that law is comparable to section 361.” (Ibid.) In addition to the clarity of the statutory language being construed in Melissa R., the court also noted that the Legislature “knew how to write in language” that would have given the provision the broader scope that the agency sought to read into it. (Id. at p. 823 [examples of the Legislature expanding the scope of a statute to other jurisdictions by using language such as “by any court of competent jurisdiction”], italics omitted.) The same is true here. First, there are other provisions regarding ICWA inquiry that are not restricted in the same manner as section 224.2, subdivision (b). For example, the general duty of inquiry in section 224.2, subdivision (a) applies to every child “for whom a petition under [s]ection 300, 601, or 602 may be or has been filed.” In addition, the court-directed inquiry prescribed in section 224.2, subdivision (c) applies to the “first appearance in court of each party” and requires the court to ask “each participant present” about the child’s possible status as an Indian child. That the Legislature wrote these provisions, which address the same subject (ICWA inquiries) as section 224.2, subdivision (b), to apply in all dependency cases underscores that the more limited expression the Legislature chose to use in establishing the duty of initial inquiry in section 224.2, subdivision (b) was a conscious decision. Second, the Legislature’s intention is discernable both from the clear words it chose to include in the statute as well as from a broader formulation it removed from an earlier draft as the bill made its way through the legislative process. Section 224.2, 9 subdivision (b) was added by Assembly Bill No. 3176 (2017-2018 Reg. Sess.) (Assembly Bill 3176), which became effective January 1, 2019. As the legislative history shows, when the language requiring the child welfare agency to “ask[ ] . . . extended family members” about the child’s possible status as an Indian child was added to Assembly Bill 3176, the prefatory limitation “when the child is taken into temporary custody pursuant to section 306” was also added. (Sen. Amend. to Assem. Bill 3176 (2017-2018 Reg. Sess.) June 18, 2018, § 4 (the Senate Amendments).) More significantly, the version of Assembly Bill 3176 that immediately preceded these two changes had provided more broadly that the inquiry duty that the Legislature ultimately set forth in section 224.2, subdivision (b) applied “when a child is taken into temporary custody.” (Assem. Amend. to Assem. Bill 3176 (2017-2018 Reg. Sess.) May 25, 2018, § 4.) In other words, the Legislature expressly rejected having the inquiry prescribed in section 224.2, subdivision (b) apply in all cases when a child is placed into temporary custody and limited such inquiry to cases where a child is placed in temporary custody “pursuant to section 306.” A more clear record of legislative choice is hard to imagine. B. Other Aspects of the Legislative History Support the Conclusion that DCFS Did Not Have an Initial Duty to Inquire of Extended Family Members in This Case Under Section 224.2, Subdivision (b) 1. Assembly Bill 3176 as Introduced A number of legislative materials describe Assembly Bill 3176 as intended to “conform [California law] to changes to federal regulations governing [ICWA].” (Assem. Com. on Human Services Hearing Rep., Apr. 10, 2018, at p. 1 (April 10, 2018, 10 Report); Assem. Third Reading as amended May 25, 2018, at p. 1; Conc. in Sen. Amends., as amended Aug. 22, 2018, at p. 1.) Quoting the author of the bill, the April 10, 2018, Report stated, “[This bill] simply seeks to change California law to comply with Federal regulations.” (Id. at p. 9.) Notably the bill as introduced did not mandate initial ICWA inquiries to include “extended family members.” Rather it took an approach, consistent with the stated purpose of the bill, of tracking provisions added by the 2016 federal ICWA regulations. (See id. at pp. 8-9;25 C.F.R. § 23.107