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Name: In re Jerry R. (2023) 95 Cal.App.5th 388
Case #: F085850
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 09/11/2023

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 (section 340). Parents appealed the termination of their parental rights, raising the issue of the failure to comply with the initial inquiry requirements of ICWA. The Fifth District reversed, following the reasoning of In re Delila D. (2023) 93 Cal.App.5th 953, that section 224.2, subdivision (b) is applicable regardless of whether the minor was initially removed pursuant to a warrant or not. There is no practical difference between children taken by warrant and those taken without a warrant, and so there is no need to distinguish between them for ICWA inquiry purposes.

The Agency erred in failing to inquire beyond the parents about possible Indian ancestry and such error was not harmless applying the standard set forth in In re K.H. (2022) 84 Cal.App.5th 566. The initial inquiry requirement was not satisfied here because there was no indication in the record that the Agency asked anyone besides the parents about possible Indian ancestry. Following the standard of In re K.H., ICWA rights belong to Indian tribes. Where the opportunity to gather relevant information critical to determine whether a child may be an Indian child is lost due to inadequate inquiry, reversal is generally the only effective safeguard. Here, the inquiry fell short of that required by section 224.2, subdivision (b) and thus, the ICWA finding is conditionally reversed and the matter remanded for the Agency to comply with ICWA.