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Name: In re Robert F.
Case #: E080073
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 04/12/2023

The initial ICWA inquiry requirements of section 224.2, subdivision (b) do not apply when a minor is removed pursuant to a warrant under section 340. The Agency sought and received a protective custody warrant for minor due to concern that Father was physically and sexually abusing the minor. After a failed attempt at reunification, parental rights were terminated, which Mother appealed. The Court of Appeal affirmed, finding that section 224.2, subdivision (b) does not apply when a minor is taken into custody pursuant to a warrant under section 340. The plain language of section 224.2, subdivision (b), which states “[i]f a child is placed into the temporary custody of a county welfare department pursuant to Section 306,” is clear and therefore controls. Because a removal under section 340 is not an “emergency removal” and thus requires neither imminent danger nor the threat of physical harm, it is fundamentally different than temporary custody under section 306. A warrantless detention triggers time-sensitive requirements that are not present when removal is under section 340. Further, the legislative history of SB 3176, which made the relevant 2018 amendment to section 224.2, recommended initial inquiry of extended family members in emergency situations, but not in all cases. Therefore, there was no failure to discharge a duty of initial inquiry in this case.

The full opinion is available on the court’s website here: