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Name: In re Samantha F. (2024) 99 Cal.App.5th 1062
Case #: E080888
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 02/22/2024

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 (§ 340). Samantha was removed pursuant to a protective custody warrant. Father appealed the termination of his parental rights, raising the issue of the failure to comply with the initial inquiry requirements of ICWA. The Fourth Appellate District, Division Two 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. All children awaiting a detention hearing, both those removed by way of a warrant and those who were not, are in the Agency’s “temporary custody” as well as its “protective custody.” Further, all pre-petition removals are emergency removals under Federal ICWA law. [Editor’s Note: Justice Fields wrote a concurring and dissenting opinion which disagreed with this holding and would have followed the precedent in In re Robert F. (2023) 90 Cal.App.5th 492, 497.]

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 Benjamin M. (2021) 70 Cal.App.5th 735. Both parents denied Indian ancestry. The Agency did not inquire of any extended relatives, despite their involvement in the case. Here, following the standard of In re Benjamin M., the error was prejudicial because the relatives had readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child and thus, a conditional reversal is required.