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Name: In re Delila D.
Case #: E080389
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 07/21/2023
Summary

The Indian Child Welfare Act (ICWA) section 224.2, subdivision (b) initial inquiry requirements apply when a minor is brought into custody pursuant to a warrant. The minor was removed from her parents pursuant to a detention warrant. The parents denied Indian ancestry. Mother appealed the subsequent termination of her parental rights, raising an ICWA initial inquiry failure, and the reviewing court conditionally reversed. Division Two of the Fourth Appellate District declined to follow its own precedent in In re Robert F. (2023) 90 Cal.App.5th 492 and In re Ja.O. (2023) 91 Cal.App.5th 672, because those decisions were themselves a departure from precedent, their interpretation is based on erroneous statutory construction, and the interpretation is of recent origin such that the public has not significantly relied upon it. AB 3176 expanded the scope of initial inquiry beyond parents to include extended relatives and nothing in the text or legislative history of the amendment suggests the expansion should apply to some cases, but not others. Robert F., which held that section 224.2, subdivision (b) does not apply when a child is removed by a warrant, was wrongly decided because even when a child is removed pursuant to section 340, the maintenance in custody that triggers the need for detention is authorized by section 306, subdivision (a)(1) (social worker authorized to “receive” the child and “maintain” them in temporary custody). Further, there is no practical difference between children taken into custody by warrant and those taken without a warrant and thus no reason to distinguish between them for ICWA purposes. Because the Agency, not law enforcement, is tasked with conducting an ICWA investigation, it makes more sense that section 224.2, subdivision (b) would tie to when a child is delivered to the Agency, rather than when they are initially taken. Further, even if section 306 excluded removals by warrant order, the initial inquiry duty applies once the minor is removed at the disposition hearing. Here, the Agency failed to question a maternal uncle about ICWA, despite communicating with this extended relative about other matters. This inquiry failure is prejudicial to the Indian tribe and thus the matter must be conditionally reversed and remanded for ICWA compliance. [Editor’s Notes: (1) Justice Miller dissented and would have followed the Robert F. precedent and reasoning. (2) The California Supreme Court has granted review in In re Robert F. (S279743/E080073) and In re Ja.O. (S280572/E079651). In re Ja.O. is the lead case and presents the following issue: Does the duty of a child welfare agency to inquire of extended family members and others about a child’s potential Indian ancestry apply to children who are taken into custody under a protective custody warrant?]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/E080389.PDF