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Name: D.S. v Superior Court
Case #: E079017
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 02/15/2023
Subsequent History: Modified 2/22/2023

The Indian Child Welfare Act (ICWA) inquiry duties mandated by section 224.2 are not limited to biological relationships. Mother is the adoptive mother of the minor. The minor was removed from Mother due to allegations of physical abuse. Mother denied Indian ancestry and provided contact information for several relatives. At the jurisdictional and dispositional hearing, the juvenile court found that ICWA did not apply, denied Mother further reunification services, and set the matter for a section 366.26. hearing. Subsequently, Mother filed a section 388 petition seeking to have minor returned to her home, which the juvenile court summarily denied. Mother appealed. The appellate court noted that the ICWA issue Mother raised on appeal was outside the scope of her appeal from the denial of her section 388 petition because the issue of ICWA was not raised in the petition. However, it construed Mother’s appeal as a petition for extraordinary writ seeking to order the juvenile court to comply with ICWA, and so ordered. Under California law, an adopted person and the adopting person are, by law, in a parent-child relationship the same as a natural parent and child and section 224.2, subdivision (b) makes no distinction when using the term “parent.” Additionally, the section 224.2, subdivision (b) duty of initial inquiry includes legal guardians, Indian custodians, and others who have an interest in the child, thus suggesting no limitation on the duty based upon a biological connection to the child. Here, the record did not show that the Agency made any attempt to inquire of Mother’s extended family members despite Mother having provided their contact information. The Agency’s argument that it had no duty to conduct an ICWA inquiry in this case because Mother was an adoptive mother is incorrect.