California Court of Appeal Nov 13, 2024 No. E083415BUnpublished
Filed 11/13/24 In re T.V. CA4/2 Opinion following order vacating prior opinion NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 T.V., a Person Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E083415
Plaintiff and Respondent, (Super.Ct.No. J294939)
v. OPINION
T.B.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes,
Judge. Conditionally reversed and remanded with directions.
Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant
and Appellant.
Tom Bunton, County Counsel, and Joseph R. Barrell, Deputy County Counsel, for
Plaintiff and Respondent.
1
T.B. (mother) appeals an order of the San Bernardino County Juvenile Court
terminating her parental rights as to her child T.V. (the child) pursuant to Welfare and
Institutions Code section 366.26.1 We will conditionally reverse the order for
compliance with California’s provisions designed to implement and enhance the federal
Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.).
In October 2022, the child, then 18 days old, was taken into custody pursuant to a
Penal Code section 1524 detention warrant obtained by respondent San Bernardino
County Children and Family Services (the Department).2 The Department placed the
child in foster care and filed a section 300 juvenile dependency petition.
The juvenile court found the child came within section 300, declared her a
dependent of the court, removed her from parental custody and continued her in a relative
home where she had by then been placed. It ordered family reunification services to be
provided to mother and the child’s presumed father.
Reunification efforts were unsuccessful, and the court terminated them at the
September 2023 six-month review hearing held 10 months after the child was removed
1 All further statutory references are to the Welfare and Institutions Code of California unless otherwise designated. References to rules are to California Rules of Court.
2 The child’s three maternal half siblings were also removed from mother’s home and placed with the previously noncustodial father. The court dismissed the dependency proceedings as to the half siblings and issued a custody order giving their father sole physical custody with legal custody to both parents.
2
from home. In March 2024, the court ordered termination of parental rights and mother
timely noticed this appeal.
DISCUSSION
Mother argues that conditional reversal of the order terminating parental rights is
called before because the Department failed to comply with the ICWA inquiry
requirements set forth in former subdivision (b) of section 224.2 (added by Stats. 2018,
ch. 833, § 5 (Assem. Bill No. 3176), eff. Jan. 1, 2019). The Department agrees
conditional reversal is appropriate if subdivision (b) of section 224.2 applies.
1. The Statutory Framework
ICWA was enacted by Congress to protect the best interests of Indian children,
and to promote the stability and security of Indian tribes and families in child custody
Delila D. held the expanded duty of inquiry applies whether or not a child is removed
pursuant to a protective custody warrant, that is, the way a child is initially removed from
home has no bearing on the question of whether they may be an Indian child. (Delila D.,
supra, at pp. 965-976; accord, In re L.B. (2023) 98 Cal.App.5th 512, 516-519 (First Dist.,
Div. Four); In re Samantha F. (2024) 99 Cal.App.5th 1062 (Samantha F.) (Fourth Dist.,
Div. Two); C.L., supra, 96 Cal.App.5th at pp. 385-391 (Third Dist.); In re V.C. (2023) 95
Cal.App.5th 251, 256-260 (First Dist., Div. Two); In re Jerry R. (2023) 95 Cal.App.5th
388, 411-426 (Fifth Dist.).)
The majority of the panel in Samantha F., which embraced the reasoning of
Delila D., supra, 93 Cal.App.5th 953 added that the reasoning of Robert F., supra, 90
Cal.App.5th 492 is also faulty because it misconstrues the term ‘“protective custody”’ as
exclusive of ‘“temporary custody,”’ and erroneously misinterprets federal ICWA law in
an effort to support the notion that the protection afforded ICWA inquiry does not apply
to children removed by a warrant. (Samantha F., supra, 99 Cal.App.5th at pp. 1068-
1069.)
Recently, the California Legislature amended as part of an urgency measure
subdivision (b) of section 224.2 “clarifying” that a county welfare department has an
obligation to inquire whether a child is an Indian child even when placed in temporary
custody pursuant to a section 340 warrant. (§ 224.2, subd. (b)(2), added by Stats. 2024,
ch. 656, § 3, eff. Sept. 27, 2024; Sen. Rules Com., Off. of Sen. Floor Analyses, 3rd
reading analysis of Assem. Bill No. 81 (2023-2024 Reg. Sess.), as amended Sept. 1,
5
2023, pp. 6-8; Sen. Com. on Judiciary, com. on Assem. Bill. No. 81 (2023-2024 Reg.
Sess.) for Aug. 13, 2024 hearing; Assem. Conc. in Senate Amends. to Assem. Bill No. 81
(2023-2024 Reg. Sess.) as amended Aug. 19, 2024, pp. 2-3.) In its present form, the
extend inquiry provision states in relevant part that:
“If a child is … taken into or maintained in the temporary custody of a county
welfare department pursuant to paragraph (2) of subdivision (a) of Section 306, or if they
were initially taken into protective custody pursuant to a warrant described in
section 340, 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.” (§ 224.2,
subd. (b)(2).)
We recognize the general rule that applying an amended provision does not
operate retrospectively unless the Legislature plainly indicates otherwise. (In re S.B.
(2004) 32 Cal.4th 1287, 1296.) In a case like the present one, however, in which the
amendment to the statute is made to clarify existing law, then it is not retrospective
because the true meaning of the statue has not changed. (Ibid.)
2. The Lack of Compliance with California’s Expanded ICWA Inquiry Provisions
In this case, mother claims, and the Department concedes, that mother and father
provided the paternal grandfather’s name and contact information, but he was not
6
contacted by the Department to inquire whether the child has or may have Indian
ancestry.
The record supports mother’s claim. The paternal grandfather’s name (I.V.) and
telephone number were provided by the child’s parents at the time of the hearing on
jurisdiction and disposition but there is nothing in the Department’s reports to indicate
any effort was made to contact him.
We note, too, that the parents listed the name and contact information for a
grandmother, G.L., on the Department's “Family Find and ICWA Inquiry” form. There
is no mention in the record that G.L. was contacted.
In addition, the Department reported contacts in October and November 2022 with
the maternal grandmother, D.B. D.B. provided information suggesting that the child’s
deceased maternal grandfather might have had have Native American ancestry, including
that his sister, also deceased, lived on an Indian reservation. In August 2023, the
Department’s social worker reported calling the Bureau of Indian Affairs (BIA) and
leaving a voice mail message requesting a call back, and in September 2023, the worker
sent an email to the BIA asking for guidance but did not provide the maternal
grandfather’s full name. The worker did not make further effort to contact BIA when she
did not receive a response.
In view of the Department’s failure to comply with the requirement that it ask
extended family members or others having an interest in the child whether the child does
or may have Indian ancestry, conditional reversal of the order terminating rights is
7
required. (In re Dezi C. (2024) 16 Cal.5th 1112, 1141 [if the Department's inquiry is
inadequate, conditional reversal is required to permit correction of the error].
DISPOSITION
The order terminating parental rights is conditionally reversed. On remand, the
juvenile court shall order the Department to comply with the duty of initial inquiry
(§ 224.2, subd. (b)(2); rule 5.481) and, if applicable, the duty of further inquiry (§ 224.2,
subd. (e)) and the duty to provide notice to the pertinent tribes (25 U.S.C. § 1912(a);
§ 224.3). If the juvenile court determines that ICWA does not apply, then the court shall
reinstate the order. If the court determines that ICWA does apply, then it shall proceed in
conformity with ICWA and related California law.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
We concur:
MILLER J. CODRINGTON J.
8
AI Brief
AI-generated · verify before citing
Holding. The court conditionally reversed the order terminating parental rights because the Department failed to satisfy its affirmative duty of inquiry under the Indian Child Welfare Act (ICWA) and California law by neglecting to contact extended family members.
Issues
Whether the Department of Children and Family Services failed to comply with the expanded ICWA inquiry requirements under section 224.2, subdivision (b).
Whether the recent legislative amendment to section 224.2, subdivision (b) clarifying the duty of inquiry applies to the current proceedings.
Disposition. Conditionally reversed and remanded.
Quotations verified verbatim against the opinion
“In view of the Department’s failure to comply with the requirement that it ask extended family members or others having an interest in the child whether the child does or may have Indian ancestry, conditional reversal of the order terminating rights”
“if the Department's inquiry is inadequate, conditional reversal is required to permit correction of the error”