California Court of Appeal Jul 21, 2023 No. E080389Published
Filed 7/21/23 See dissenting opinion CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re DELILA D., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E080389
Plaintiff and Respondent, (Super.Ct.No. RIJ118579)
v. OPINION
M.T.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Dorothy McLaughlin,
Judge. Conditionally reversed with directions.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and
Appellant.
Minh C. Tran, County Counsel, Teresa K.B. Beecham and Larisa R-McKenna,
Deputy County Counsel, for Plaintiff and Respondent.
1
This case concerns a social worker’s duty to inquire whether a child involved in a
dependency proceeding “is or may be an Indian child” under the Indian Child Welfare
Act (25 U.S.C. § 1901 et seq.) (ICWA), a duty commonly referred to as the “initial 1 inquiry.” (Welf. & Inst. Code, § 224.2, subd. (a).) In 2018, our Legislature expanded this
duty as part of Assembly Bill No. 3176 (2017-2018 Reg. Sess.), which added various
new ICWA-related provisions to the Welfare and Institutions Code that became effective
[recommending “[a]s a matter of general best practice in child welfare,” that social
workers interview extended family members in emergency removal situations both as
“possible emergency placements” and to determine whether the child may have Indian
ancestry].) But even if the guidelines did recommend that states apply a narrower initial
inquiry to children initially removed by warrant, ICWA expressly allows states to enact
higher standards than those imposed or recommended under federal law. (25 U.S.C.
§ 1921.)
This brings us to our second reason for declining to follow Robert F. Even if its
conclusion that section 306 excludes removals by protective custody warrant were
correct, we would still disagree with its conclusion that the duty described in section
224.2(b) does not apply once a child initially removed by warrant is removed from
parental custody at the disposition hearing.
22
First, section 224.2(b) does not state that the inquiry it describes applies “only if” a
child is taken into temporary custody under section 306. (See Adoption of Kelsey S.
(1992) 1 Cal.4th 816, 827 [it is a “cardinal rule” of statutory interpretation that “courts
may not add provisions to a statute”].) Section 224.2(b) does not contain the word only or
any other language suggesting an intent to limit the inquiry it describes. And where, as
here, where remedial legislation is involved, we must interpret the statute broadly to
achieve its purpose. (See In re I.F. (2022) 77 Cal.App.5th 152, 163 [the affirmative and
ongoing duty to inquire under California law serves a “remedial purpose” requiring us to
broadly construe state ICWA statutes]; see also Los Angeles County Metropolitan
Transportation Authority v. Alameda Produce Market, LLC (2011) 52 Cal.4th 1100, 1106
[courts must construe statutory provisions “in context, keeping in mind the statute’s
nature and obvious purposes”], italics added.)
Here, the obvious purpose of A.B. 3176 was to expand the scope of the initial
inquiry beyond the parents. Nothing in the text of that amendment or its legislative
history suggests an intent to apply the expanded inquiry in some cases but not others.
Indeed, A.B. 3176 itself states that it amends existing law to “revise the specific steps a
social worker . . . is required to take in making an inquiry of a child’s possible status as
an Indian child.” (Stats. 2018, ch. 833 (A.B. 3176), § 1.) Notably, the Legislature did not
say those steps apply only in the subset of dependency proceedings that begin with
warrantless removals. We think that if the Legislature intended to so limit the initial
inquiry, it would have said so.
23
Second, rule 5.481 requires social workers to make the inquiry described in
section 224.2(b) any time the department is “seeking a foster-care placement, . . .
termination of parental rights, preadoptive placement, or adoption.” (See rule 5.481(a)(1)
[directing the department, in such circumstances, to ask “extended family members [and]
others who have an interest in the child” about possible Indian ancestry].) Where, as here,
the rule is not inconsistent with the statute, we are required to follow it. (See R.R. v.
Superior Court (2009) 180 Cal.App.4th 185, 205 [“Rules of court have the force of law
and are as binding as procedural statutes as long as they are not inconsistent with
statutory or constitutional law”]; see also T.G., supra, 58 Cal.App.5th at p. 291
[concluding rule 5.481 is “entitled to judicial deference”].)
Third and perhaps most importantly, it simply doesn’t make sense to apply
different initial inquiries depending on how the child was initially removed from home,
as that procedural happenstance has nothing to do with a child’s ancestry.
For all these reasons, we conclude Robert F.’s interpretation of section 224.2(b) as
“crafting [a] narrow inquiry duty” that applies only to children initially taken into
temporary custody without a warrant contravenes the plain language and obvious purpose
of A.B. 3176. (Robert F., supra, 90 Cal.App.5th at p. 503.) We hold instead that the
Legislature enacted section 224.2(b) to impose on departments a broad duty to inquire
that applies regardless of how a child is initially removed from home.
24
The costs of broadening the inquiry are slight, as departments are already required
to identify and to contact extended family members for various reasons unrelated to
ICWA during dependency proceedings. (See S.S., supra, 90 Cal.App.5th at p. 702
[providing a list of examples of such provisions].) But the “payoff can be large for tribes,
whose children carry their cultures into the future.” (Id. at p. 705.) “The inquiry required
by the 2018 amendment is vital—literally: it can help keep cultures alive.” (Ibid.) And,
because tribal knowledge and experience tell us “there is a chance extended family
members may have otherwise-unavailable information the child has Indian ancestry,” the
importance of interviewing such individuals when they are readily available cannot be
overstated. (Ibid.)
We generally follow decisions of our own court, absent a compelling reason to
depart. (Opsal v. United Services Auto. Assn. (1991) 2 Cal.App.4th 1197, 1204; see also
Estate of Sapp (2019) 36 Cal.App.5th 86, 109.) However, there are several considerations
that compel us to depart from Robert F. First, that decision itself departed from earlier
decisions of our court holding the duty of initial inquiry in section 224.2(b) “applies in
every dependency proceeding.” (In re Ricky R. (2022) 82 Cal.App.5th 671, 678; see also
In re Benjamin M. (2021) 70 Cal.App.5th 735 (Benjamin M.) [same].) Second, Robert
F.’s interpretation is, in our view, based on a plain error of statutory construction that is
easily corrected, and the error if put into force would significantly undermine the purpose
of ICWA and the California statutes implementing ICWA. Third, the Robert F.
interpretation is of recent origin, meaning neither courts nor the public have yet placed
25
significant reliance on it. (See Sierra Club v. San Joaquin Local Agency Formation Com.
(1999) 21 Cal.4th 489, 504, 552 [“[s]tare decisis has added force when the legislature, in
the public sphere, and citizens, in the private realm, have acted in reliance on a previous
decision, for in this instance overruling the decision would dislodge settled rights and
expectations or require an extensive legislative response”], quoting Hilton v. South
Carolina Public Railways Comm’n (1991) 502 U.S. 197, 202.)
2. The department’s error was prejudicial
We conclude the department violated 224.2(b)’s clear mandate by failing to ask
the maternal uncle whether Delila may have any Indian ancestry. And, because he was
readily available throughout the proceeding and could have meaningful information about
Delila’s heritage, we conclude the violation prejudiced tribes and remand is necessary.
(Benjamin M., supra, 70 Cal.App.5th at p. 744; S.S., supra, 90 Cal.App.5th at p. 710.)
The analysis regarding the other relatives listed in the jurisdiction and disposition
report that the social worker tried to interview about placement is less straightforward.
While it’s clear the phone numbers the social worker had on file for them were not
correct, we cannot say the same about the addresses. Also, it is possible the individuals
would choose not to respond about placement but would respond to a question about
Delila’s ancestry. On remand, the juvenile court shall decide in the first instance whether
to order the department to send inquiries to those addresses or try to obtain additional
contact information about them from mother and the maternal uncle.
26
III
DISPOSITION
We conditionally reverse the order terminating parental rights and remand the
matter to the juvenile court with directions to comply with the inquiry provisions of
section 224.2. The juvenile court shall order that within 30 days of the remittitur, the
department perform its initial inquiry of Delila’s potential Indian ancestry consistent with
this opinion. If, after completing the initial inquiry, there is no reason to believe Delila is
an Indian child, the court shall reinstate its order terminating parental rights. If the inquiry
produces information substantiating Indian ancestry, the court shall vacate the order and
proceed in compliance with ICWA and related California law.
CERTIFIED FOR PUBLICATION
SLOUGH J.
I concur:
RAPHAEL J.
27
[In re Delila D., E080389]
MILLER, J., Dissenting
I respectfully dissent to the majority opinion finding that remand is necessary in
order for the Riverside County Department of Social Services (Department) to conduct
further inquiry of the relatives of minor, Delila D. as to whether she is an Indian child
pursuant to the guidelines of Welfare and Institutions Code 1 section 224.2, subdivision
(b). I follow this court’s previous opinions of In re Robert F. (2023) 90 Cal.App.5th 492
(Robert F.) and In re Ja.O. (2023) 91 Cal.App.5th 672 (Ja.O.). Since Delila was taken
into custody pursuant to a protective warrant under section 340, the additional inquiry
requirements of section 224, subdivision (b), do not apply. I would affirm.
A protective custody removal warrant under section 340 was obtained by the
Department for Delila on January 24, 2021. Delila was detained and was placed in
protective custody in a foster home on January 25, 2021.
“There is no federal duty to inquire of extended family members.” (In re A.C.
(2021) 65 Cal.App.5th 1060, 1069.) The duty of inquiry under state law comes from
section 224.2, subdivision (b). Subdivision (b) of section 224.2 provides, “If a child is
placed into the temporary custody of a county welfare department pursuant to Section
306 or county probation department pursuant to Section 307, the county welfare
department or county probation department has a duty to inquire whether that child is an
Indian child. Inquiry includes, but is not limited to, asking the child, parents, legal
1All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
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.” The
plain language of section 224.2, subdivision (b), provides that if a child is placed into the
temporary custody of a county welfare department pursuant to section 306, there is a duty
to inquire of extended relatives about Indian ancestry.
Section 306 provides, “(a) Any social worker in a county welfare department, or in
an Indian tribe that has entered into an agreement pursuant to Section 10553.1 while
acting within the scope of his or her regular duties under the direction of the juvenile
court and pursuant to subdivision (b) of Section 272, may do all of the following: [¶]
(1) Receive and maintain, pending investigation, temporary custody of a child who is
described in Section 300, and who has been delivered by a peace officer. [¶] (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 Section 300 or who the social worker has
reasonable cause to believe is a person described in subdivision (b) or (g) of Section 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. [¶]
(b) Upon receiving temporary custody of a child, the county welfare department shall
inquire pursuant to Section 224.2, whether the child is an Indian child.”
Section 340, subdivision (a), provides, “Whenever a petition has been filed in the
juvenile court alleging that a minor comes within Section 300 and praying for a hearing
2
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.”
“ ‘Under settled canons of statutory construction, in construing a statute we
ascertain the Legislature’s intent in order to effectuate the law’s purpose. [Citation.] We
must look to the statute’s words and give them their usual and ordinary meaning.
[Citation.] The statute’s plain meaning controls the court’s interpretation unless its words
are ambiguous.’ ” (People v. Arias (2008) 45 Cal.4th 169, 177.) “ ‘ “[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.” ’ ” (Melissa R. v. Superior Court (2012) 207
Cal.App.4th 816, 822.)
In Robert F., this court found that the plain language of section 224.2, subdivision
(b), controls and it only requires that the Department make an inquiry of extended
relatives if the child “is placed into the temporary custody of a county welfare department
pursuant to Section 306.” (Robert F., supra, 90 Cal.App.5th at p. 500.)
This court, in Robert F., followed the concurring opinion in In re Adrian L. (2022)
86 Cal.App.5th 342 (Adrian L.), a case involving a child being placed into protective
custody pursuant to section 340, subdivision (b). In his concurring opinion, Justice
3
Kelley 2, after extensive examination of the legislative history of section 224.2,
subdivision (b), and the plain language of the statute (Adrian L., at pp. 358-366),
concluded that “[p]lacing 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.” (Id. at p. 357.) “[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.” As such, the requirement of section 224.2, subdivision (b) did
not apply to the case in which the child was removed under section 340 based on the
plain language of the statute. (Adrian L., at p. 357.) The Robert F. court adopted this
reasoning finding that the language of the statue was plain and controlled the
interpretation of section 224.2, subdivision (b). (Robert F., supra, 90 Cal.App.5th at p.
500.)
Based on the plain language in section 224.2, subdivision (b), it is applicable only
to situations where “a child is placed into the temporary custody of a county welfare
department pursuant to [s]ection 306.” Here, Delila was placed into the Department’s
custody pursuant to court order under section 340, subdivision (a), not through the
2 Judge Michael Kelley was sitting on assignment at the Second District Court of Appeal when wrote his concurring opinion in In re Adrian L. Therefore, respectfully, I use the title that is correct for his position at the time. 4
warrantless removal procedure provided by section 306. Accordingly, the Department
was not required to conduct inquiries with “extended family members” at this initial
inquiry stage pursuant to section 224.2, subdivision (b).
The majority states that it cannot follow Robert F.’s reasoning because it disagrees
that section 306 is limited to circumstances where the child is removed without a warrant.
The majority argues that section 306 authorizes the Department to maintain a child in
temporary custody both when the child has been taken from home by a social worker or
police officer under exigent circumstances without a warrant under section 306,
subdivisions (a)(1), and (a)(2), and when the child has been taken from home by means
of a protective custody warrant issued under section 340, citing to section 306,
subdivision (a)(1)).
A similar argument was rejected in Ja.O., another opinion authored by this court.
In Ja.O., the mother argued that since section 306, subdivision (a)(1), authorizes a social
worker to take a child who has been delivered by a peace officer into temporary custody,
“it follows that whenever a peace officer takes a child into protective custody pursuant to
a warrant and then delivers the child to a social worker, the child is thereby taken into
temporary custody pursuant to section 306.” (Ja.O., supra, 91 Cal.App.5th at p. 680.)
This court rejected that argument finding that, “[s]ubdivisions (a) and (b) of section 340
provide for the issuance of protective custody warrants. Subdivision (c) of section 340
requires that ‘[a]ny child taken into protective custody pursuant to this section shall
immediately be delivered to the social worker,’ who must then conduct an investigation
‘pursuant to [s]ection 309.’ Thus, when a peace officer takes a child into protective
5
custody pursuant to a warrant and then complies with the statutory obligation to deliver
the child to the social worker, the social worker is taking custody of the child pursuant to
section 340, subdivision (c). [¶] But subdivision (a)(1) of section 306 has no application
when children are detained pursuant to a warrant under section 340, subdivision (b).
Section 306 expressly involves ‘temporary custody,’ which Article 7 defines, not
‘protective custody’ under section 340. Subdivision (a)(1) of section 306 thus applies to
situations in which an officer detains a child pursuant to one of the sections in Article 7
and the officer then delivers the child to the social worker. [¶] Moreover, if [the]
Mother’s interpretation of sections 306 and 340 were correct, then most of subdivision (c)
of section 340 would be surplusage.” (Ja.O., supra, 91 Cal.App.5th at p. 680.) The
majority is incorrect that all children are taken into temporary custody under section 306.
The majority also relies on the legislative history to insist that section 224.2,
subdivision (b), is to be interpreted broadly and that nothing in the text of that law or its
legislative history suggests an intent to apply the expanded inquiry in some cases but not
others. However, these arguments ignore that the Legislature specifically amended
section 224.2, subdivision (b), before its adoption, to add the language limiting it to
temporary custody pursuant to section 306. “ ‘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.” ’ ” (Robert F., supra, 90
Cal.App.5th at p. 502.)
6
Further, this argument also ignores the language of section 224.2 that shows the
Legislature has restricted the requirement of inquiry to extended family members. This is
evidenced by the inclusion of section 224.2, subdivision (e), which provides for
interviewing extended family members but only when there is “reason to believe” a child
may be an Indian child. Here, the majority interprets the statutory language counter to
the plain language. I find the plain language of section 224.2, subdivision (b), and the
legislative history renders it inapplicable to the detention of Delila under section 340.
I see no reason to depart from the reasoning of our previous cases of Robert F. and