In re D.M.

• Court: California Court of Appeal
• Decided: May 7, 2024
• Docket: E082401
• Status: Published

Opinion

Filed 5/7/24 See Dissenting Opinion

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re D.M., a Minor Person Coming Under the Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E082401

Plaintiff and Respondent, (Super.Ct.No. RIJ2000775)

v. OPINION

DAISY M.,

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Mona M. Nemat, Judge.

Affirmed.

Mansi Thakkar, under appointment by the Court of Appeal, for Defendant and

Appellant.

Minh C. Tran, County Counsel and Teresa K.B. Beecham and Catherine E. Rupp,

Deputy County Counsel, for Plaintiff and Respondent.

1 Daisy M. (Mother) appeals from the juvenile court’s order terminating her parental

rights to her daughter, D.M. The only argument that Mother raises is that the Riverside

County Department of Public Social Services (DPSS) conducted an inadequate

investigation under state law implementing the Indian Child Welfare Act of 1978 (25

U.S.C. § 1901 et seq. (ICWA)). In particular, Mother argues that DPSS failed to comply

with the expanded duty of initial inquiry under Welfare and Institutions Code section

224.2, subdivision (b) (§ 224.2(b)). (Unlabeled statutory citations refer to the Welfare

and Institutions Code.)

We continue to agree with In re Robert F. (2023) 90 Cal.App.5th 492, 497 (Robert

F.), review granted July 26, 2023, S279743, and In re Ja.O. (2023) 91 Cal.App.5th 672,

677-678 (Ja.O.), review granted July 26, 2023, S280572, that the expanded duty of initial

inquiry under section 224.2(b) applies only if the child was placed into temporary

custody without a warrant. Also, for the reasons explained in In re Andres R. (2023) 94

Cal.App.5th 828, 840-856 (Andres R.), review granted November 15, 2023, S282054, we

remain unpersuaded by In re Delila D. (2023) 93 Cal.App.5th 953 (Delila D.), review

granted September 27, 2023, S281447, which declined to follow Robert F. We publish

this opinion in order to explain why we are similarly unpersuaded by subsequent cases

that follow Delila D.

Because D.M. was taken into custody pursuant to a protective custody warrant, the

expanded duty of initial inquiry under section 224.2(b) was never triggered. Mother’s

argument therefore fails, and we accordingly affirm the order terminating parental rights.

2 BACKGROUND

In November 2020, DPSS received a referral alleging general neglect of D.M. by

Mother. The referral arose from a domestic violence incident between Mother and her

boyfriend. The boyfriend told law enforcement that Mother threatened him with a

pedicure tool and that Mother smoked methamphetamine in front of D.M. Mother agreed

to keep D.M. away from her boyfriend and to submit to an on-demand urine test. Mother

denied having any Indian ancestry.1

The social worker later spoke with a maternal aunt and maternal grandmother.

Both denied being aware of any domestic violence between Mother and her boyfriend.

Maternal grandmother told the social worker that she did not have any Indian ancestry.

The social worker tried to reach D.M.’s father but later learned from paternal

grandfather that he was in jail for violating a restraining order protecting paternal

grandmother. Paternal grandfather denied having any Indian ancestry. Paternal

grandfather expressed concern that father and Mother were abusing drugs and were

incapable of parenting D.M. Paternal grandmother also denied having Indian ancestry.

When DPSS reached father, he confirmed that he did not have any Indian ancestry.

In December 2020, DPSS filed a petition under section 300 as to D.M. As

subsequently amended, the petition alleged that Mother engages in domestic violence in

D.M.’s presence, that both parents have a history of substance abuse, that father fails to

1 “[B]ecause ICWA uses the term ‘Indian,’ we do the same for consistency, even though we recognize that other terms, such as ‘Native American’ or ‘indigenous,’ are preferred by many.” (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1.) 3 provide for D.M., that father has a criminal history including discharge of a firearm,

robbery, and gang activity, and that Mother has pending criminal charges including

battery and driving under the influence. DPSS attached an Indian Child Inquiry form

(ICWA-010(A)) to the original petition, indicating that DPSS asked the parents, maternal

grandmother, and paternal grandfather whether D.M. may be an Indian child. DPSS

reported that as a result of its inquiry, it had no reason to believe that D.M. was an Indian

child.

The juvenile court initially detained D.M. from father but released her to Mother.

The court found that DPSS had conducted a sufficient ICWA inquiry and that ICWA did

not apply. The court ordered Mother to file a Parental Notification of Indian Status form

(ICWA-020), which she did. Mother denied that she had any Indian ancestry. When

asked by the social worker later that month, both Mother and father denied Indian

ancestry.

In March 2021, the juvenile court found that father was D.M.’s presumed father.

Father filed an ICWA-020, indicating that he was unaware of any Indian ancestry.

Later that month, Mother was arrested for battery and driving under the influence.

DPSS obtained a protective custody warrant, took D.M. into protective custody, and

asked the court to detain D.M. from Mother. The court then detained D.M. from Mother

and again found that ICWA did not apply.

At the contested jurisdiction and disposition hearing in May 2021, the court

sustained the amended petition, removed D.M. from the custody of both parents, and

4 ordered reunification services for both parents. The court also found that DPSS had

conducted a sufficient inquiry and that ICWA did not apply.

At the six-month and 12-month review hearings, the court continued reunification

services for both parents. Mother continued to deny Indian ancestry, and the court found

that DPSS had made a sufficient ICWA inquiry, that ICWA did not apply to D.M., and

that there was no new information to the contrary.

At the contested 18-month review hearing in September 2022, the court terminated

reunification services for both parents and set a selection and implementation hearing

under section 366.26. Father was incarcerated for much of the reunification period and

made little progress in services. Mother participated in some services but frequently

missed drug tests, tested positive in April 2022, and refused to test thereafter.

In the report for the section 366.26 hearing, father again denied having any Indian

ancestry. When the selection and implementation hearing was conducted in October

2023, the court again found that ICWA did not apply, and the court terminated parental

rights.

DISCUSSION

Mother argues that the juvenile court erred by not requiring DPSS to conduct an

adequate initial inquiry to determine whether D.M. is an Indian child within the meaning

of ICWA, because DPSS did not ask various extended family members whether they had

any Indian ancestry. In response, DPSS argues that no such inquiry of extended family

members was required, because the statutory provision on which Mother relies does not

apply. We agree with DPSS.

5 By statute, the county welfare department and the juvenile court have an

“‘affirmative and continuing duty to inquire’ whether a child in a dependency proceeding

‘is or may be an Indian child.’” (In re Ricky R. (2022) 82 Cal.App.5th 671, 678 (Ricky

R.), quoting § 224.2, subd. (a).) “The duty to inquire consists of two phases—the duty of

initial inquiry and the duty of further inquiry.” (Id. at p. 678.) This case does not

concern the duty of further inquiry, which arises only if the court or the department has

“reason to believe that an Indian child is involved.” (§ 224.2, subd. (e).)

“The duty of initial inquiry applies in every dependency proceeding.” (Ricky

R., supra, 82 Cal.App.5th at p. 678.) The department’s “duty to inquire begins with the

initial contact, including, but not limited to, asking the party reporting child abuse or

neglect whether the party has any information that the child may be an Indian child.”

(§ 224.2, subd. (a).) In addition, “[f]ederal regulations require state courts to ask each

participant ‘at the commencement’ of a child custody proceeding ‘whether the participant

knows or has reason to know that the child is an Indian child.’ (25 C.F.R. § 23.107(a)

(2022).)” (Ricky R., at pp. 678-679.) Similarly, “[s]tate law requires the court to pursue

an inquiry ‘[a]t the first appearance in court of each party’ by asking ‘each participant

present in the hearing whether the participant knows or has reason to know that the child

is an Indian child.’ (§ 224.2, subd. (c).)” (Id. at p. 679.)

In addition, section 224.2(b) provides that “[i]f a child is placed into the temporary

custody of a county welfare department pursuant to Section 306 or county probation

department pursuant to Section 307,” then the department’s initial inquiry duty includes

asking “extended family members” about the child’s Indian status. Mother argues that

6 DPSS violated section 224.2(b) by failing to ask various extended family members about

Indian ancestry. DPSS responds that the section 224.2(b) duty was not triggered in this

case, because D.M. was removed pursuant to a protective custody warrant.

There is a conflict in the case law on the application of section 224.2(b), and the

California Supreme Court has granted review to resolve it. Pending guidance from our

high court, we continue to agree with Robert F., supra, 90 Cal.App.5th 492, and Ja.O.,

supra, 91 Cal.App.5th 672, that the expanded duty of initial inquiry under

section 224.2(b) applies only if the child was placed into temporary custody without a

warrant. And for the reasons explained in Andres R., supra, 94 Cal.App.5th 828, we are

not persuaded by the criticisms of Robert F. that were expressed in Delila D., supra, 93

Cal.App.5th 953.

Since Andres R. was published in August 2023, five published opinions have

agreed with Delila D. that the duty to inquire of extended family members under

section 224.2(b) is not limited to cases in which the children were placed into temporary

custody without a warrant: In re Samantha F. (2024) 99 Cal.App.5th 1062 (Samantha

F.); In re L.B. (2023) 98 Cal.App.5th 512 (L.B.); In re C.L. (2023) 96 Cal.App.5th 377

(C.L.); In re Jerry R. (2023) 95 Cal.App.5th 388 (Jerry R.); and In re V.C. (2023) 95

Cal.App.5th 251 (V.C.). Below we briefly summarize the analysis with which we agree,

and we identify some of the reasons why we do not find the contrary cases persuasive.

I. The Statutory Analysis and Rationale of Robert F., Ja.O., and Andres R.

The statutory analysis developed in Robert F., Ja.O., and Andres R. can be

summarized as follows: (1) Section 224.2(b) provides that there is a duty to conduct

7 ICWA inquiry of extended family members “[i]f a child is placed into the temporary

custody of a county welfare department pursuant to Section 306 or county probation

department pursuant to Section 307”; (2) subdivisions (a)(1) and (a)(2) of section 306

describe the only ways a child can be placed into the temporary custody of a county

welfare department under section 306; (3) subdivision (a)(1) of section 306 authorizes a

social worker to “[r]eceive and maintain” “temporary custody” of a child from a peace

officer, and the only way a peace officer can take a child into “temporary custody” is

“without a warrant” pursuant to sections 305, 305.6, and 625; (4) subdivision (a)(2) of

section 306 authorizes a social worker to take a child into “temporary custody” “without

a warrant”; (5) the only way a child can be placed into the temporary custody of a county

probation department pursuant to section 307 is if the child was taken into temporary

custody under section 305, which exclusively concerns warrantless removals; so (6) the

extended family inquiry duty under section 224.2(b) is triggered only by warrantless

removals.2 (See Andres R., supra, 94 Cal.App.5th at pp. 841-845; Ja.O., supra, 91

Cal.App.5th at pp. 677-678; Robert F., supra, 90 Cal.App.5th at pp. 500-501.)

The Legislature’s creation of a duty to conduct ICWA inquiry of extended family

members when a child is removed without a warrant makes sense because that is what the

2 Delila D. misdescribes the language of subdivision (a)(1) of section 306, asserting that it “authorizes the social worker to ‘receive’ the child and ‘maintain’ them in temporary custody.” (Delila D., supra, 93 Cal.App.5th at p. 971.) That is not what the statute says. Rather, it authorizes the social worker to “[r]eceive and maintain . . . temporary custody of a child who is described in Section 300, and who has been

8 Bureau of Indian Affairs (BIA) guidelines recommend. (U.S. Dept. of the Interior,

Guidelines for Implementing the Indian Child Welfare Act (Dec. 2016) (BIA guidelines)

pp. 23-24, 28, available at

idc2-056831.pdf> [as of Mar. 28, 2024] [recommending extended family inquiry in cases

of “emergency removal” and defining emergency removal as removal “without court

authorization”]; see Andres R., supra, 94 Cal.App.5th at pp. 849-851; Ja.O., supra, 91

Cal.App.5th at pp. 680-681; Robert F., supra, 90 Cal.App.5th at pp. 502-503.)

The BIA guidelines’ recommendation and the Legislature’s decision to follow it

make sense because (among other reasons) the criteria for warrantless removal under

both the BIA guidelines and California law include parental absence. (Andres R., supra,

94 Cal.App.5th at pp. 852-853; BIA guidelines, at p. 24 [warrantless removal is permitted

“when a young child is left without care or adequate supervision”]; § 305, subd. (a)

[warrantless removal is authorized if “the fact that the child is left unattended poses an

immediate threat to the child’s health or safety”].) When the parents are unavailable, as

is often the case with warrantless removals, it makes sense to require the child welfare

department to ask extended family members whether the child has Indian ancestry.

delivered by a peace officer.” (§ 306, subd. (a)(1).) Thus, by its terms, the statute authorizes the social worker to receive temporary custody. Consequently, the child must already be in temporary custody before the child is delivered by the peace officer. Delila D. elides the issue by incorrectly asserting that the statute authorizes the social worker to receive the child, rather than receiving temporary custody of the child. That point was made in Andres R., supra, 94 Cal.App.5th at pages 842 to 843, but none of the cases following Delila D. mentions it. 9 II. The Contrary Case Law

In our view, Delila D. and cases following it do not present a persuasive

alternative account. Given the statutory analysis summarized above, there would appear

to be two principal ways one might attempt to defend the conclusion that the extended

family inquiry duty under section 224.2(b) is not limited to warrantless removals:

(1) One could argue that children removed pursuant to protective custody warrants are

placed into temporary custody under section 306, thereby triggering the section 224.2(b)

duty, or (2) one could argue that the conditional language in section 224.2(b) is not a

limitation at all, so the extended family inquiry duty created by section 224.2(b) applies

even to children who are not placed into temporary custody under section 306 or 307.

Delila D. takes both approaches. (Delila D., supra, 93 Cal.App.5th at pp. 971-972, 974.)

All of the cases following Delila D. adopt one or the other, but they all fail to address

problems with both approaches that were described in Andres R.

A. Protective Custody Warrants, Section 306, and Section 224.2(b)

Three cases agree with Delila D.’s claim that a child taken into protective custody

pursuant to a protective custody warrant is placed into temporary custody pursuant to

section 306, so the extended family inquiry duty under section 224.2(b) applies to such

children. (Delila D., supra, 93 Cal.App.5th at pp. 971-972; Jerry R., supra, 95

Cal.App.5th at pp. 414-417; C.L., supra, 96 Cal.App.5th at p. 386; Samantha F., supra,

99 Cal.App.5th at p. 1069.) The cases reason that when a peace officer removes a child

pursuant to a protective custody warrant and then delivers the child to a social worker, the

social worker receives temporary custody of the child under section 306, subdivision

10 (a)(1). (Delila D., supra, 93 Cal.App.5th at p. 971; Jerry R., supra, 95 Cal.App.5th at p.

414; C.L., supra, 96 Cal.App.5th at p. 386; Samantha F., supra, 99 Cal.App.5th at p.

1069.)

We do not find those cases persuasive, because they fail to address a central

problem with their position: Sometimes a child is not taken from parental custody at all

until the child is detained by court order at the detention hearing or removed by court

order at the disposition hearing. None of the cases argues (or could credibly argue) that

such children are placed into temporary custody under section 306. Thus, even if

section 306 applies to removals pursuant to protective custody warrants in addition to

warrantless removals, the extended family inquiry duty still would not be universal—it

would not apply to children who were not removed before the detention hearing. That

problem was identified in Andres R., supra, 94 Cal.App.5th at page 857, footnote 9, but

none of the cases following Delila D. mentions it. As a result, the cases also never

explain why the Legislature would create one duty of inquiry for children removed before

the detention hearing and a different duty of inquiry for children who are first removed at

the detention hearing or later. We are aware of no rationale for such differential

treatment. In contrast, the differential treatment under Robert F., Ja.O., and Andres R. is

easily explained: The Legislature created an extended family inquiry duty for warrantless

removals because that is what the BIA guidelines recommend, and the recommendation

makes sense because (among other reasons) warrantless removals are often the result of

parental absence.

11 There is an additional problem with the cases’ claim that a child who is removed

pursuant to a protective custody warrant is placed into temporary custody pursuant to

section 306. The cases assume that protective custody warrants are executed by peace

officers, and the cases infer that subdivision (a)(1) of section 306—which concerns

children delivered to social workers by peace officers—applies.

But protective custody warrants are not always executed by peace officers.

Rather, sometimes protective custody warrants are executed directly by social workers,

with no peace officer involved. For example, when a baby tests positive for illicit

substances at birth, the social worker might serve the protective custody warrant at the

hospital with no assistance from law enforcement. And even when peace officers are

involved, they do not necessarily take the children into custody themselves and then

deliver them to the social worker; rather, the peace officers might be present merely as a

show of force to support the social worker, who serves the warrant and takes delivery of

the children directly from the parents. The protective custody warrant in this case

illustrates the point: It directs law enforcement to “assist” DPSS “by maintaining the

peace during the execution of this warrant.”

If a child is not delivered to a social worker by a peace officer but rather is taken

into custody directly by the social worker (with or without law enforcement assistance)

pursuant to a protective custody warrant, then there is not even an arguable basis to claim

that the child was placed into temporary custody under section 306. Section 224.2(b)

therefore would not apply to such children, even if Delila D.’s interpretation of

subdivision (a)(1) of section 306 were correct. Again, Delila D. and cases following it do

12 not explain why the Legislature would create one duty of inquiry for children removed by

peace officers pursuant to warrants and a different duty of inquiry for children removed

by social workers pursuant to warrants. And again, we are not aware of any rationale for

such differential treatment.

For the foregoing reasons, we are not persuaded by the cases that reason that

children removed pursuant to protective custody warrants are placed into temporary

custody under section 306.

B. The Absence of the Word “Only” in Section 224.2(b)

Two cases agree with Delila D.’s argument that because section 224.2(b) begins

with the word “if” instead of the words “only if,” the statute’s conditional language does

not function as a limitation at all, so section 224.2(b) imposes the extended family inquiry

duty even for children who were not placed into temporary custody under section 306 or

307. (Delila D., supra, 93 Cal.App.5th at p. 974; V.C., supra, 95 Cal.App.5th at pp. 259-

260; L.B., supra, 98 Cal.App.5th at p. 517.) The argument was assessed and found

meritless in Andres R., supra, 94 Cal.App.5th at pages 846 to 847, but the cases never

mention Andres R.’s analysis.

That analysis, with which we continue to agree, can be summarized as follows:

The extended family inquiry duty was created and imposed by section 224.2(b). No case

argues (or could credibly argue) that without section 224.2(b) there would still be a

statutory duty to conduct ICWA inquiry of all available extended family members in

every case. The conditional language in section 224.2(b), which identifies the

circumstances triggering the extended family inquiry duty, is the same as the conditional

13 language used in other statutes to identify the circumstances triggering other ICWA-

related duties. The duty of “further inquiry” is triggered “[i]f the court, social worker, or

probation officer has reason to believe that an Indian child is involved in a proceeding.”

(§ 224.2, subd. (e).) The duty to provide notice to the tribes is triggered “[i]f the court, a

social worker, or probation officer knows or has reason to know . . . that an Indian child

is involved.” (§ 224.3, subd. (a).) Neither of those provisions says “only if”—they say

that the duties arise “[i]f” the relevant circumstances are present. But the provisions

cannot be reasonably interpreted as imposing a duty of further inquiry even if there is not

reason to believe an Indian child is involved, or a duty to provide notice to the tribes even

if there is not reason to know an Indian child is involved.

The identical language in section 224.2(b) must be interpreted the same way. It

cannot be reasonably interpreted as imposing a duty to inquire of extended family even if

the child was not placed into temporary custody under section 306 or 307. (Andres R.,

supra, 94 Cal.App.5th at pp. 846-847.) Again, the case law contains no attempted

rebuttal of that analysis.

In effect, Delila D. interprets the word “if” in section 224.2(b) to mean “regardless

of whether.” But statutory conditions introduced by “if” rather than “only if” are

commonplace in California statutes and do not carry that meaning. To take just one more

example: Subdivision (c) of Penal Code section 1172.6 provides that “[i]f the petitioner

makes a prima facie showing that the petitioner is entitled to relief, the court shall issue

an order to show cause.” The statute does not say “only if.” Thus, by Delila D.’s

reasoning, the condition (if the petitioner makes a prima facie case) is not a limitation at

14 all, and the court must issue an order to show cause regardless of whether the petitioner

has made a prima facie case. Moreover, subdivision (d)(3) of Penal Code section 1172.6

provides that, at the evidentiary hearing after issuance of an order to show cause, “[i]f the

prosecution fails to sustain its burden of proof, the prior conviction, and any allegations

and enhancements attached to the conviction, shall be vacated and the petitioner shall be

resentenced on the remaining charges.” Again, the statute does not say “only if.” Thus,

by Delila D.’s reasoning, the condition (if the prosecution fails to carry its burden of

proof) is not a limitation at all, and the court must vacate the conviction and

enhancements regardless of whether the prosecution has carried its burden. Such a

reading of Penal Code section 1172.6 would be absurd. But it is identical to Delila D.’s

reading of section 224.2(b).3

Some cases rely on rule 5.481(a)(1) of the California Rules of Court, which

requires ICWA inquiry of “extended family members” and does not limit that duty to

cases in which the child is placed into temporary custody pursuant to section 306 or 307.

(Delila D., supra, 93 Cal.App.5th at pp. 966, 975; L.B., supra, 98 Cal.App.5th at p. 518;

Jerry R., supra, 95 Cal.App.5th at p. 426; V.C., supra, 95 Cal.App.5th at pp. 259-260;

Samantha F., supra, 99 Cal.App.5th at p. 1067.) That rule is invalid, however, because it

conflicts with legislative intent. (Andres R., supra, 94 Cal.App.5th at pp. 853-854.)

3 There is no shortage of similar examples. Subdivision (c) of Code of Civil Procedure section 437c provides that a “motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The statute does not say “only if.” 15 Similarly, if there were a rule of court that broadly imposed the duty of further inquiry, so

that the duty would be triggered even if there were not reason to believe the child was an

Indian child, such a rule would conflict with legislative intent and hence would be

invalid. Or if there were a rule of court that broadly imposed the duty to provide notice

to the tribes, so that the duty would be triggered even if there were not reason to know the

child was an Indian child, such a rule would conflict with legislative intent and hence

would be invalid. This is not the first time that a juvenile law rule of court has been

invalidated for such a reason, namely, for creating an additional trigger beyond those

provided by statute, even though the statutory triggers do not say “only if.” (In re Jesus

J. (1995) 32 Cal.App.4th 1057, 1060.)

Nor is it the first time that an ICWA-related rule of court has been invalidated for

conflicting with legislative intent by applying ICWA-related protections beyond the

circumstances specified by statute, even though the relevant statutes do not say “only if.”

In re Abbigail A. (2016) 1 Cal.5th 83 invalidated a rule that required dependency courts

to apply ICWA’s protections to children who are eligible for tribal membership but are

not Indian children within the meaning of ICWA. (Id. at pp. 91-96.) And In re W.B.

(2012) 55 Cal.4th 30 invalidated a rule that required juvenile courts to apply ICWA to all

delinquency proceedings; the rule conflicted with legislative intent because by statute

ICWA applied to delinquency proceedings “if the child is at risk of entering foster care or

is in foster care.” (Id. at p. 53 (italics omitted); see id. at pp. 53-58 & fn. 17.) The statute

did not say “only if.”

16 For all of these reasons, we are not persuaded by the claim that because section

224.2(b) begins with the word “if” instead of the words “only if,” section 224.2(b)

imposes the extended family inquiry duty even for children who were not taken into

temporary custody under section 306 or 307, and we are similarly unpersuaded by the

cases’ reliance on rule 5.481(a)(1) of the California Rules of Court.

C. The BIA Guidelines

The cases’ treatment of other issues is no more convincing. Two cases endorse

Delila D.’s claim that “it simply doesn’t make sense to apply different initial inquiries

depending on how the child was initially removed from home.” (Delila D., supra, 93

Cal.App.5th at p. 975; V.C., supra, 95 Cal.App.5th at p. 260; L.B., supra, 98 Cal.App.5th

at p. 518.) But neither of those cases mentions the BIA guidelines, which were cited by

Robert F., Ja.O., and Andres R. as explaining why creating an extended family inquiry

duty for warrantless removals does make sense. (Andres R., supra, 94 Cal.App.5th at

pp. 849-851; Ja.O., supra, 91 Cal.App.5th at pp. 680-681; Robert F., supra, 90

Cal.App.5th at pp. 502-503.)

Jerry R. likewise never addresses the BIA guidelines. And Delila D.’s response

concerning the BIA guidelines consists of the puzzling assertion that Robert F.’s

“argument misconstrues the definition of an emergency removal under both the federal

regulations and California law.” (Delila D., supra, 93 Cal.App.5th at p. 973.) There is

no definition of emergency removal in the federal regulations or in California law (and in

any event California law cannot tell us what the BIA guidelines mean by “emergency

17 removal”).4 (Andres R., supra, 94 Cal.App.5th at pp. 850-851.) The BIA guidelines, in

contrast, do tell us that emergency removals are removals “without court authorization,”

i.e., warrantless removals. (BIA guidelines, pp. 23-24.)

C.L. contains an extended discussion of federal law, ultimately concluding that “a

removal under section 340 [i.e., a removal pursuant to a protective custody warrant]

constitutes an emergency proceeding under the ICWA regulations.” (C.L., supra, 96

Cal.App.5th at pp. 388-390, italics added.) Whatever the merits of that conclusion and

the analysis on which it is based, it is nonresponsive to the point made in Robert F.,

Ja.O., and Andres R.: The BIA guidelines recommend extended family inquiry for

emergency removals (not emergency proceedings, which are something else), and the

BIA guidelines define emergency removals as removals without court authorization, i.e.,

warrantless removals. (BIA guidelines, pp. 23-24, 28; Andres R., supra, 94 Cal.App.5th

at pp. 849-851; Ja.O., supra, 91 Cal.App.5th at pp. 680-681; Robert F., supra, 90

4 Delila D. cites 25 Code of Federal Regulations part 23.2 (2023), which defines “emergency proceeding” in terms of both “emergency removal” and “emergency placement” but leaves the latter two terms undefined. (Delila D., supra, 93 Cal.App.5th at p. 973.) Delila D. also cites section 315, which provides that “[i]n the case of an Indian child,” the detention hearing “shall be considered an emergency removal” under section 1922 of title 25 of the United States Code. (Delila D., supra, 93 Cal.App.5th at p. 973.) That is not a definition of “emergency removal,” just as “a koala is a mammal” is not a definition of “mammal.” 18 Cal.App.5th at pp. 502-503.) That recommendation explains the Legislature’s decision to

create a duty of extended family inquiry for warrantless removals.5

D. Samantha F.

Samantha F. is the most recent published opinion to follow Delila D. It articulates

two additional reasons for declining to follow Robert F.: “First, Robert F. misconstrues

‘protective custody’ as exclusive of ‘temporary custody’ in categorizing children

removed by warrant as not in temporary custody before their detention hearing. Second,

Robert F.’s interpretation misconstrues federal ICWA law as supporting its view that the

ICWA inquiry differs based on whether a child is removed by warrant.” (Samantha F.,

supra, 99 Cal.App.5th at pp. 1068-1069.) In our view, Samantha F. is mistaken on both

points.

1. “Protective Custody” and “Temporary Custody”

Samantha F. argues that the statutory terms “protective custody” and “temporary

custody” refer to all children in custody before the detention hearing, so a child removed

5 In addition, C.L.’s conclusion that “a removal under section 340 constitutes an emergency proceeding under the ICWA regulations” (C.L., supra, 96 Cal.App.5th at pp. 388-390) cannot be correct. The regulations define an emergency proceeding as “any court action that involves an emergency removal or emergency placement of an Indian child.” (25 C.F.R. § 23.2 (2023).) Although the issuance of a protective custody warrant under section 340 might be described as a court action, a removal pursuant to such a warrant is not a court action—it is something done in the field by a social worker or a law enforcement officer executing the warrant. Similarly, although the issuance of an arrest warrant might be described as a court action, an arrest pursuant to such a warrant is not a court action—it is something done in the field by a law enforcement officer executing the warrant. Because a removal under section 340 is not a court action, it cannot be an emergency proceeding under the ICWA regulations. 19 pursuant to a protective custody warrant is in temporary custody under section 306,

triggering the section 224.2(b) duty. (Samantha F., supra, 99 Cal.App.5th at p. 1069.) In

support of that conclusion, Samantha F. cites various provisions of the juvenile court law

purporting to show that the statutory terms “protective custody” and “temporary custody”

are interchangeable. (Id. at pp. 1070-1072.) We find the analysis unpersuasive partly

because it is based on a logical error and partly because it misinterprets various code

provisions.

By its terms, the section 224.2(b) duty applies only to children taken into

“temporary custody” under section 306 or 307. Thus, if the statutory term “temporary

custody” refers only to children removed without a warrant, then the section 224.2(b)

duty likewise applies only to children removed without a warrant. It does not matter if

the term “protective custody” is sometimes used as an umbrella term encompassing both

warrantless removals and removals pursuant to warrants. As long as the term “temporary

custody” is not such an umbrella term but instead refers exclusively to warrantless

removals, the section 224.2(b) duty is limited to warrantless removals and Robert F. is

correct.

Put another way: Showing that “protective custody” includes “temporary

custody” (or includes warrantless removals) would not undermine Robert F. Rather,

showing that “temporary custody” includes “protective custody” (or includes removals

pursuant to warrants) would undermine Robert F. Thus, for example, subdivision (a) of

section 307.4 provides that when a child is taken into “temporary custody” under sections

305 through 307, the parents or other responsible adults must immediately be informed

20 that the child has been taken into “protective custody.” Therefore, as used in that

provision, the term “protective custody” includes “temporary custody”—if the child is in

“temporary custody,” then the child is in “protective custody” as well. But that proves

nothing about whether Robert F. is correct.

Samantha F. argues that some statutes (such as section 307.4, subdivision (a)) use

the term “protective custody” to include “temporary custody” (or to include warrantless

removals). (Samantha F., supra, 99 Cal.App.5th at pp. 1070-1071.) For the reasons just

explained, those arguments are irrelevant and logically incapable of casting any doubt on

Robert F. Rather, in order to undermine Robert F.’s interpretation of section 224.2(b),

Samantha F. would need to show that statutes use the term “temporary custody” to

include “protective custody” (or to include removals pursuant to warrants). Samantha F.

attempts to make that showing by citing a few code provisions. But Samantha F.

misinterprets those provisions, so the argument fails.

Samantha F. cites subdivision (d) of section 306 and asserts that it “obviously

applies to all children in predetention custody” even though it uses the term “‘temporary

custody.’” (Samantha F., supra, 99 Cal.App.5th at p. 1071.) The statute provides that if

a social worker has an Indian child in temporary custody and knows or has reason to

believe the Indian child is a ward of a tribal court or lives on the reservation of a tribe

“that has exclusive jurisdiction over child custody proceedings” under ICWA, then the

social worker must notify the tribe no later than the next workday and provide relevant

documentation. (§ 306, subd. (d).) Samantha F. reasons that because tribes have

exclusive jurisdiction over all Indian children who live on reservations or are wards of

21 tribal courts, the provision must apply regardless of whether a child was removed without

a warrant—“[w]hether the child was removed by warrant has nothing to do with the

tribe’s exclusive jurisdiction over such a case.” (Samantha F., supra, 99 Cal.App.5th at

p. 1071.)

That reasoning reflects a misunderstanding of both state and federal law. Under

federal law, tribes have exclusive jurisdiction of child custody proceedings involving

children who live on reservations “except where such jurisdiction is otherwise vested in

the State by existing Federal law.” (25 U.S.C. § 1911(a).) The same federal statute

further provides that tribes can decline to exercise jurisdiction, thereby ceding it to state

courts. (25 U.S.C. § 1911(b).) Thus, if a state court is involved, exclusive tribal

jurisdiction is not automatic. As a result, under California law the juvenile court in such

a case must contact the tribe to determine whether the tribe wishes to accept transfer of

the case or decline to exercise jurisdiction. (§ 305.5, subd. (b); Cal. Rules of Court, rule

5.483(d)(1)(B).) Contrary to Samantha F.’s interpretation, subdivision (d) of section 306

has nothing to do with such cases; it concerns only cases in which there is no court

involved, i.e., warrantless removals. In such cases, the social worker must immediately

contact the tribe. But if a court is involved, then the court will contact the tribe under

section 305.5, subdivision (b). In sum, Samantha F. misreads subdivision (d) of section

22 306 and provides no reason to believe that it applies to anything but warrantless

removals.6

Samantha F. likewise misinterprets subdivision (b)(7) of section 319. The statute

provides that if there is reason to know that a child who is the subject of a detention

hearing is an Indian child, then the report for the detention hearing must include “[a]

specific and detailed account of the circumstances that caused the Indian child to be taken

into temporary custody.” (§ 319, subd. (b)(7).) Samantha F. concludes, “That again

indicates that the Legislature views all children held before that hearing as being in

temporary custody.” (Samantha F., supra, 99 Cal.App.5th at p. 1071.) That conclusion

is mistaken. Rather, there is a straightforward reason why subdivision (b)(7) of section

319 specifically targets only warrantless removals. If a known Indian child is removed

without a warrant (i.e., taken into temporary custody), then the statute requires the social

worker to provide the court with a detailed account of the facts that made the warrantless

removal necessary. But if a known Indian child is removed pursuant to a protective

custody warrant, then there is no need to impose such a requirement, because the social

worker has already provided the court with the relevant facts in the warrant application.

6 Samantha F. makes a similar error concerning section 369, subdivision (a), which authorizes medical care for children in “temporary custody,” and Health and Safety Code section 121020, subdivision (a)(3)(A), which authorizes HIV testing for children in “temporary custody.” (Samantha F., supra, 99 Cal.App.5th at p. 1072.) If a court is involved, subdivision (b) of section 369 provides the same authorization for medical care and subdivision (a)(3)(A) of Health and Safety Code section 121020 provides the same authorization for HIV testing. The statutes thus exhibit the same structure as section 306, subdivision (d) and section 305.5, subdivision (b): One provision covers cases with no court involvement, and the other covers cases in which a court is involved. 23 There is no reason to believe that the term “temporary custody” in subdivision (b)(7) of

section 319 applies to anything but warrantless removals.7

Samantha F.’s treatment of section 206 is similarly misguided and has the

additional unfortunate consequence of undermining child safety. Section 206 provides

that a minor cannot be held in “temporary custody in any building that contains a jail or

lockup for the confinement of adults” unless certain conditions are met (e.g., the minor

must be “under continuous supervision”). Samantha F. reasons that “[i]t is not plausible”

that those conditions would be limited to minors removed without a warrant—the

relevant protections should apply to any child removed with or without a warrant.

(Samantha F., supra, 99 Cal.App.5th at pp. 1071-1072.) That reasoning is unsound

because section 206 is not a general regulation of the housing of minors in jails or

lockups for adults. Rather, section 206 creates an exception to a more general prohibition

on housing children with adults, and it limits that exception to “temporary custody,” i.e.,

warrantless removals.

7 In addition, it would make sense for the Legislature to presume that any known Indian child removed before the detention hearing would be removed without a warrant. As Samantha F. acknowledges, even the court at the detention hearing cannot remove a known Indian child except when “necessary to prevent imminent physical damage or harm.” (§ 319, subd. (d); see Samantha F., supra, 99 Cal.App.5th at p. 1075.) But the same standard applies to a social worker’s warrantless removal of a known Indian child: Such a removal is authorized if it is “necessary to prevent imminent physical damage or harm to the Indian child.” (§ 306, subd. (c).) Because known Indian children cannot be removed before the detention hearing except when necessary to prevent imminent physical damage or harm, and warrantless removal is authorized in such circumstances, it would make sense for the Legislature to presume that all predetention removals of known Indian children will be warrantless. For that additional reason, there is no basis to think that subdivision (b)(7) of section 319 is about anything other than warrantless removals. 24 Subdivision (a) of section 207.1 provides that children cannot be detained “in a jail

or lockup, unless otherwise permitted by any other law,” and the statute defines jails and

lockups as detention facilities for adults (§ 207.1, subd. (g)(1)-(2)). The prohibition is

general—it is not limited to “temporary custody.” But other provisions create narrow

exceptions to that general prohibition. In particular, subdivision (b) of section 207.1

authorizes holding “[a] minor 14 years of age or older who is taken into temporary

custody by a peace officer on the basis of being a [delinquent minor]” in certain adult

facilities if certain conditions are met, notwithstanding the general prohibition on

detaining children in adult facilities. Section 206 is similar—it authorizes holding

(alleged) dependent or delinquent minors in “temporary custody” in adult facilities as

long as certain conditions (such as continuous supervision) are met, notwithstanding the

general prohibition on detaining children in adult facilities.

Limiting the authorization for holding children with adults to warrantless removals

(“temporary custody”) makes very good sense. If a social worker applies for a protective

custody warrant, the worker must have already done some investigation in order to gather

the facts needed for the warrant application. In the process, the worker may have already

identified relatives for placement. But even if no such placement options have been

identified, the warrant will ordinarily be executed during the day, giving the worker some

time to arrange for third-party care. For all of those reasons, when a child is removed

pursuant to a protective custody warrant, the social worker will have both the familiarity

with the family and the necessary time to arrange for an appropriate placement pending

the detention hearing.

25 Warrantless cases are completely different. There may have been no prior

investigation at all, so there might be no social worker who already knows the family.

The parents themselves might be absent; parental absence is among the criteria for

warrantless removal (§ 305, subd. (a)). And the exigent circumstances necessitating

warrantless removal can arise at any time, including the middle of the night.

For all of those reasons, the Legislature sensibly created narrow authorizations for

detaining children in adult facilities in warrantless cases in order to allow some more

flexibility in dealing with the exigencies that warrantless removals commonly present.

By interpreting “temporary custody” in section 206 to include removals pursuant to

warrants, Samantha F. purports to expand protection for children. But Samantha F.’s

erroneous interpretation actually expands an exception to the general prohibition on

detaining children in adult facilities, thereby making it easier, not harder, to house

children in such facilities.

In sum, we are not persuaded by Samantha F.’s arguments concerning the

statutory terms “temporary custody” and “protective custody.” In order to succeed, the

argument would have to show that “temporary custody” includes “protective custody” or

includes removals pursuant to warrants. But Samantha F. fails to make that showing. It

may be true that “protective custody” is sometimes used broadly to include both

warrantless removals and removals pursuant to warrants. But the juvenile court law’s use

of the term “temporary custody” is remarkably consistent, and it applies only to

26 2. Federal Law

Samantha F. contains an extended discussion of federal ICWA statutes and

regulations, the BIA guidelines, and related California law. (Samantha F., supra, 99

Cal.App.5th at pp. 1073-1081.) The aim of the discussion is to rebut the “erroneous

claim that federal ICWA law counsels for inquiries into extended family only when a

child is removed without a warrant.” (Id. at p. 1073.) We conclude that Samantha F.’s

analysis is unsound.

It is useful to begin by reviewing the role played by federal authority in the

position developed by Robert F., Ja.O., and Andres R.: All three cases hold that under

the plain language of section 224.2(b), ICWA inquiry of all available extended family

members is required only if the child was removed without a warrant. The Legislature’s

decision to impose that requirement makes sense because it is recommended by the BIA

guidelines. In particular, guideline C.7 recommends “that the State agency ask the family

and extended family whether the child is a Tribal member or whether a parent is a Tribal

member and the child is eligible for membership as part of the emergency removal and

placement process,” and guideline C.2 explains that an emergency removal is a removal

“without court authorization.” (BIA guidelines, pp. 23-24, 28; see Andres R., supra, 94

Cal.App.5th at pp. 849-851.) Thus, when a child is removed without court authorization,

i.e., without a warrant, the BIA guidelines recommend that the state child protection

agency inquire of extended family in order to determine whether the child is an Indian

child. By its plain language, that is precisely what section 224.2(b) requires. And we

know that the Legislature that enacted section 224.2(b) was aware of the BIA guidelines

27 and sought to conform California law to them in various respects. (See Robert F., supra,

90 Cal.App.5th at pp. 502-503.) The BIA guidelines thus help to explain our

Legislature’s decision to require extended family inquiry for warrantless removals.

One additional feature of the legal landscape is helpful in evaluating Samantha

F.’s analysis: The provisions of federal ICWA statutes and regulations, the BIA

guidelines, and related California law can be grouped into two broad categories. One

concerns the inquiry, investigation, and notice utilized to determine whether a child is an

Indian child within the meaning of ICWA. (E.g., 25 U.S.C. § 1912(a); 25 C.F.R.

§§ 23.11, 23.107, 23.111; §§ 224.2, 224.3; BIA guidelines, pp. 11-12, 28-35.) The other

concerns the procedures and protections that apply to Indian children once they have

been identified. (E.g., 25 U.S.C. §§ 1912(d)-(f), 1915, 1916, 1920, 1922; 25 C.F.R.

§§ 23.110, 23.113, 23.114, 23.120, 23.121; §§ 224.4, 224.6, 361.31, 361.7, 366.24,

366.26, subd. (c)(1)(B)(vi), (c)(2)(B); BIA guidelines, pp. 42-44, 52-53.) By its terms,

guideline C.7 belongs to the former category—it concerns the inquiry that a child

protection agency should conduct to determine whether a child is an Indian child. (BIA

guidelines, p. 28.)

Samantha F.’s discussion can be summarized as follows: First, Samantha F.

argues for the conclusion that “all prepetition removals of Indian children in dependency

cases are emergency removals” within the meaning of section 1922 of title 25 of the

United States Code (§ 1922). (Samantha F., supra, 99 Cal.App.5th at p. 1077; see id. at

p. 1073 [“Any prepetition removal of an Indian child in a dependency case is an

28 ‘emergency removal’”].)8 Second, on that basis Samantha F. infers the further

conclusion that all prepetition removals of all children are emergency removals within the

meaning of BIA guideline C.7. (Samantha F., at p. 1078 [“the recommendation of BIA

Guidelines, section C.7 applies to all prepetition removals”].) That is, Samantha F.

reasons that because every prepetition removal of an Indian child (with or without a

warrant) is an emergency removal under section 1922, it follows that every prepetition

removal of any child (with or without a warrant) is an emergency removal under BIA

guideline C.7. Thus, as interpreted by Samantha F., the BIA guidelines actually

recommend extended family inquiry for all prepetition removals, with or without

warrants, so the BIA guidelines do not support Robert F.’s interpretation of section

224.2(b).

The analysis is unsound because, assuming for the sake of argument that

Samantha F. is right that every prepetition removal of an Indian child is an emergency

removal under section 1922, there is no basis to infer that every prepetition removal of

8 We do not find Samantha F.’s argument for that conclusion persuasive. The argument appears to be that because a prepetition removal of an Indian child is not a child custody proceeding under ICWA, such a removal must be an emergency removal under section 1922. (Samantha F., supra, 99 Cal.App.5th at pp. 1074-1077.) But a prepetition removal, with or without a warrant, of an Indian child cannot be a child custody proceeding under ICWA for the simple reason that it is not a court action (and it also is not a permanent placement or a placement after termination of parental rights). (25 U.S.C. § 1903(1)(i)-(iv).) Rather, such a removal is something done in the field by a social worker or a peace officer. (See ante, fn. 5 [discussing a related issue in C.L., supra, 96 Cal.App.5th at pp. 388-390].) It does not follow that such a removal is an emergency removal under section 1922—not everything that is not a court action is an emergency removal under section 1922. 29 any child is an emergency removal under BIA guideline C.7.9 Section 1922 is one of

ICWA’s protections for Indian children. It provides that nothing in ICWA “shall be

construed to prevent the emergency removal of an Indian child who is a resident of or is

domiciled on a reservation, but temporarily located off the reservation, from his parent or

Indian custodian or the emergency placement of such child in a foster home or institution,

under applicable State law, in order to prevent imminent physical damage or harm to the

child.” (§ 1922.) That is, section 1922 states that ICWA does not prevent the emergency

removal of Indian children as long as the imminent physical damage or harm standard is

met. Section 1922 does not define the term “emergency removal.” But more importantly

for our purposes, section 1922 says nothing about the inquiry, investigation, and notice

process for determining whether a child is an Indian child.

BIA guideline C.7, in contrast, is expressly about that process. The guideline is

entitled “Identifying Indian children in emergency situations,” and it recommends asking

“family and extended family whether the child is a Tribal member or whether a parent is

9 We express no opinion on whether a prepetition removal of an Indian child pursuant to a protective custody warrant constitutes an emergency removal within the meaning of section 1922. In our view, the question is difficult to answer because neither section 1922 nor any other federal statute or regulation contains a definition of “emergency removal.” But the question is also unnecessary to answer because, under California law, (1) an Indian child cannot be removed at any time up to and including the detention hearing unless removal is necessary to prevent imminent physical damage or harm to the child, and (2) that is the standard for warrantless removal of an Indian child. (§§ 306, subd. (c), 319, subd. (d).) Thus, anytime a prepetition removal of an Indian child is authorized, a warrantless removal of the same child is authorized. Given that no warrant is needed and the circumstances are exigent—the child is in danger of imminent physical damage or harm—it is not clear why the social worker in such a case would ever seek a warrant or how they could find the time to seek one if they were so inclined. 30 a Tribal member and the child is eligible for membership.” (BIA guidelines, p. 28.) That

recommendation is concerned exclusively with determining whether a child is an Indian

child, i.e., determining whether the child is a tribe member or eligible for membership

and the biological child of a tribe member. It says nothing about the protections that

apply to Indian children. And unlike section 1922 and other federal statutes and

regulations, the BIA guidelines do define “emergency removal”—guideline C.2 explains

that an emergency removal is a removal “without court authorization.” (BIA guidelines,

pp. 23-24, 28; see Andres R., supra, 94 Cal.App.5th at pp. 849-851.)

A central problem with Samantha F.’s reasoning, then, is that we cannot draw

inferences about the inquiry process that applies to all children from a non-inquiry

protection that applies only to Indian children. And the inference drawn by Samantha F.

is particularly unsupported, because it starts with a statute (§ 1922) that does not define

“emergency removal” and then draws a conclusion about the meaning of “emergency

removal” under the BIA guidelines, but that conclusion is contrary to the BIA guidelines’

own definition of “emergency removal.”

Samantha F.’s only attempt to defend the inference consists of the following

sentence: “If an Indian child is identified in any California prepetition removal, an

emergency proceeding and its standard is required, so the recommendation of BIA

Guidelines section C.7 applies to all prepetition removals.” (Samantha F., supra, 99

Cal.App.5th at p. 1078.) The argument appears to be that (1) because any child might

turn out to be an Indian child, and (2) a prepetition removal of an Indian child must meet

the imminent physical damage or harm standard for an emergency removal, it follows

31 that (3) all prepetition removals of all children must be emergency removals under BIA

guideline C.7.

The argument does nothing to fill the inferential gap already identified, and if

anything it makes the invalidity of the inference even more apparent. If the ultimate

conclusion were that all prepetition removals of all children must meet the imminent

physical damage or harm standard for emergency removals, then the inference might

have some surface appeal: A prepetition removal of an Indian child must meet the

imminent physical damage or harm standard, and any child might turn out to be an Indian

child, so any prepetition removal of any child should meet that standard. But we know

that inference is unsound—the imminent physical damage or harm standard applies only

if there is reason to know the child is an Indian child. (§ 306, subd. (c).) If there is not

reason to know that the child being removed is an Indian child, then other standards

apply. (§§ 305, 305.6, 306, subds. (a)-(b), 340, subd. (b).) And because that inference is

unsound, the more radical inference drawn by Samantha F.—that because a prepetition

removal of an Indian child must meet the imminent physical damage or harm standard,

and any child might turn out to be an Indian child, it follows that the extended family

inquiry recommendation of BIA guideline C.7 applies to all children—cannot possibly be

valid.

There is at least one further problem with Samantha F.’s discussion of this issue:

Recall that the BIA guidelines’ only role in Robert F. and similar cases is that the

guidelines’ recommendation of extended family inquiry for warrantless removals

explains why the Legislature enacted section 224.2(b), requiring extended family inquiry

32 for warrantless removals. Samantha F. offers an alternative interpretation of the BIA

guidelines. For the reasons given, we believe that alternative interpretation is incorrect.

But even if it were in some sense correct, it would still not undermine the analysis in

Robert F. for the following reason: There is no reason to believe that the legislators who

enacted section 224.2(b) subscribed to, or were even aware of, Samantha F.’s

interpretation of federal law. Rather, the most reasonable inference remains that the

legislators read the BIA guidelines and enacted what the guidelines appear, on their face,

to recommend: extended family inquiry for removals “without court authorization,” i.e.,

warrantless removals. (BIA guidelines, pp. 23-24, 28.)

For all of these reasons, we conclude that Samantha F.’s discussion ultimately

casts no doubt on the treatment of the BIA guidelines in Robert F., Ja.O., and Andres R.

E. Legislative Intent

Most of the points raised by the dissent do not require additional discussion, but it

is worth briefly addressing the dissent’s interpretation of legislative intent.

According to the dissent, the Legislature intended the section 224.2(b) duty to

apply whenever a child is removed from parental custody either at or before the detention

hearing. (Dis. opn., post, at pp. 6-8.) (The dissent does not address whether the

Legislature intended for the duty to apply to children who are first removed at

disposition.) The dissent concedes, however, that that is not what section 224.2(b)

says—by its terms, section 224.2(b) does not apply to children who are first removed at

the detention hearing. (Dis. opn., post, at p. 7.) But the dissent reasons that rule

5.481(a)(1) of the California Rules of Court fills the gap between the statutory language

33 and the Legislature’s unstated intent. (Dis. opn., post, at pp. 7-8.) Thus, rather than

conclude (as we do) that the rule is invalid because it conflicts with the legislative intent

expressed by the statutory language, the dissent concludes that the rule is valid because it

accords with the Legislature’s intent, which was not expressed in the statutory language.

(Dis. opn., post, at pp. 7-8 [the Legislature “would want” the duty to apply to children

first removed at the detention hearing, even though the “strict terms” of the statute do not

so provide].)

For several reasons, we find that reasoning unpersuasive. First, the dissent’s

assertions about legislative intent are groundless. The Legislature did not say that the

section 224.2(b) duty is triggered whenever a child is removed from parental custody. If

that had been what the Legislature intended, then it would have said so. The Legislature

knows how to refer generally to the removal of a child from parental custody and does so

in various dependency statutes. (See, e.g., § 361.49 [“the date on which the child was

initially removed from the physical custody of his or her parent or guardian”]; § 366.22,

subd. (a)(1) [“the date the child was originally removed from the physical custody of

their parent or legal guardian”]; § 361.5, subd. (a) [“whenever a child is removed from a

parent’s or guardian’s custody”].) The Legislature did not use any such generic language

in section 224.2(b). Rather, it used very specific language: “temporary custody . . .

pursuant to Section 306 or . . . pursuant to Section 307.” (§ 224.2(b).) It is difficult to

understand why the Legislature would choose to use those words if it intended that the

duty be triggered whenever a child is removed from parental custody. The dissent, like

34 Delila D. and cases following it, fails to accord any significance to the Legislature’s

decision to use the language that it used.

Second, rule 5.481(a)(1) of the California Rules of Court itself does not conform

to the dissent’s understanding of legislative intent. The rule applies in all dependency

cases (Cal. Rules of Court, rules 5.481(a), 5.480(1)) and does not require that the child be

removed from parental custody (or that “termination of parental rights [be] at issue” (dis.

opn., post, at p. 7)). Rather, the rule requires only that there be a “party seeking a foster-

care placement.” (Cal. Rules of Court, rule 5.481(a)(1).) The rule thus imposes the

extended family inquiry duty not only more broadly than the terms of section 224.2(b)

but also more broadly than the dissent claims the Legislature intended. The dissent fails

to acknowledge this and instead concludes that the rule “has it right.” (Dis. opn., post, at

p. 9.)

In our view, the dissent’s treatment of all of those issues is unsound. The statutory

language is generally the most reliable indicator of legislative intent. (E.g., People v.

Ruiz (2018) 4 Cal.5th 1100, 1105.) There is no reading of the statutory language

according to which it means what the dissent claims the Legislature intended. We

believe that the Legislature meant what it said and said what it meant. Our interpretation

of section 224.2(b) gives effect to the intent that the Legislature expressed by the

language that it used. And because rule 5.481(a)(1) of the California Rules of Court is

inconsistent with that intent, it is invalid.

35 F. Extended Family Inquiry and Effective ICWA Enforcement

Finally, both Delila D. and the cases following it appear to be based on the belief

that a blanket duty to inquire of all available extended family members in every case is

important for effective ICWA enforcement, so limiting that duty to warrantless removals

“would significantly undermine the purpose of ICWA.” (Delila D., supra, 93

Cal.App.5th at p. 976; see Jerry R., supra, 95 Cal.App.5th at p. 426 [the Robert F. rule

“subverts legislative intent and policy goals underlying California dependency law and

ICWA”]; L.B., supra, 98 Cal.App.5th at p. 518 [the Robert F. rule “‘frustrates the

purpose of the initial inquiry’”].) In our view, that belief is mistaken.

ICWA’s protections apply only to children who are Indian children within the

meaning of ICWA. (In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1009 (Ezequiel G.).)

To be an Indian child within the meaning of ICWA, a child must be either (1) a member

of a federally recognized tribe or (2) eligible for membership and the biological child of a

member. (25 U.S.C. § 1903(4).) As Ezequiel G. explains, tribal membership “‘is

voluntary and typically requires an affirmative act by the enrollee or her parent.’”

(Ezequiel G., at p. 1009.) Thus, because being an Indian child requires that either the

child or a biological parent be a tribe member, and because tribal membership is

voluntary and typically requires an affirmative act, it is typically impossible for a child to

be an Indian child without the parents knowing about it. As a result, if both of a child’s

biological parents are available and deny Indian ancestry, then extended family inquiry is

all but guaranteed to be pointless. Such inquiry may uncover some claim of Indian

ancestry, but it typically cannot reveal that the child is an Indian child within the meaning

36 of ICWA unless the biological parents are deliberately concealing the information despite

having strong incentives to reveal it.10 Moreover, if for some reason the biological

parents are deliberately concealing the information because they do not want ICWA to

apply to their case, extended family inquiry is still likely to be fruitless—tribal

membership is voluntary, so the parents can thwart application of ICWA by renouncing

their tribal membership. (Indian Child Welfare Act Proceedings, 81 Fed.Reg. 38778,

38783 (June 14, 2016).) For these reasons, a requirement to conduct ICWA inquiry of all

available extended family members in every case—even when the biological parents are

available and deny Indian ancestry—would appear to be of negligible importance for

effective ICWA enforcement.

We are not aware of any empirical evidence that such a requirement has been of

any benefit to any tribe, any Indian family or child, or anyone else. Again, given the

definition of “Indian child” and the voluntary nature of tribal membership, one would

expect that if both parents deny Indian ancestry, then extended family inquiry might

sometimes lead to the discovery of some claim of Indian ancestry but will not lead to the

10 For example, ICWA and related law impose heightened standards for removal from parental custody and termination of parental rights (25 U.S.C. § 1912(e), (f); 25 C.F.R. § 23.121(a), (b)), require the social worker to use “active efforts” (rather than merely reasonable efforts) to reunify the family (25 U.S.C. § 1912(d); 25 C.F.R. §§ 23.2, 23.120(a)), and provide additional alternatives to termination of parental rights (§§ 366.26, subd. (c)(1)(B)(vi), (c)(2)(B)(iii), 366.24). Moreover, parents in dependency cases are represented by counsel (§ 317), and court-appointed counsel are subject to minimum requirements for education and training in dependency law (§ 317.5; Cal. Rules of Court, rule 5.660(d)). Thus, counsel presumably will inform their clients that it is in their interest to disclose any Indian ancestry. 37 discovery of any Indian children within the meaning of ICWA. We do not know of any

evidence that runs contrary to those expectations.

On the other side of the ledger, the mistaken assumption that there is a universal

requirement of extended family inquiry has created considerable extra work for already

overburdened social workers and juvenile court judges. And that extra work has

inevitably created increased opportunities for error, causing widespread disruption in

dependency litigation and delaying permanency for hundreds of dependent children. We

do not mean to suggest that those costs, though surely nontrivial, are so high that they

could not possibly be justified by countervailing benefits. Rather, the point is that

requiring ICWA inquiry of all available extended family members in every case is far

from costless but in all likelihood produces no benefits.

The foregoing considerations suggest that what “simply doesn’t make sense”

(Delila D., supra, 93 Cal.App.5th at p. 975) is that the Legislature would impose a

requirement that appears to be all cost and no benefit in the first place. Fortunately, as

Robert F., Ja.O., and Andres R. explain, the statutory language shows that the Legislature

did not do that. Instead, it did something more reasonable. It required extended family

member inquiry only in the subclass of cases in which the children were initially taken

from parental custody without court authorization, just as the BIA guidelines recommend.

The BIA’s recommendation and the Legislature’s decision to follow it make sense,

because extended family member inquiry is important if the parents are not available, and

parental absence is one of the criteria for warrantless removal under both the BIA

guidelines and California law.

38 Finally, we wish to emphasize that the importance of scrupulous compliance with

ICWA cannot be overstated. ICWA is antigenocide legislation, and to our knowledge it

is the most significant federal legislative victory for Indian rights in the history of the

United States. (See Haaland v. Brackeen (2023) 599 U.S. 255, 297 [143 S.Ct. 1609,

1641] (conc. opn. of Gorsuch, J.) [ICWA was a response to federal, state, and private

attacks on the Indian family that “presented an existential threat to the continued vitality

of Tribes”].) Rigorous enforcement of ICWA and related California law is imperative.

But more ICWA inquiry does not always mean more or better ICWA enforcement.

If in the future the Legislature decides that the negligible benefits of a universal duty of

extended family inquiry are worth the nontrivial costs, and the Legislature enacts such a

duty—perhaps by deleting or revising the conditional language in section 224.2(b)—then

that legislative command must be rigorously enforced, just like every other part of ICWA

and related California law. But as far as we can determine from the statutory language

and the authorities and analysis adduced to date, no such legislative command currently

exists.

For all of the foregoing reasons, we continue to believe that the duty to inquire of

extended family members under section 224.2(b) is triggered only if the child was taken

into temporary custody without a warrant, which did not occur in this case. Accordingly,

we reject Mother’s argument and affirm the order terminating parental rights.

39 DISPOSITION

The order terminating parental rights is affirmed.

MENETREZ J. I concur:

MILLER Acting P. J.

40 [In re D.M., E082401]

RAPHAEL, J., dissenting.

The federal Indian Child Welfare Act (ICWA) and its California analogue apply

identically in California dependency cases whether a child is initially removed by warrant

or without one. ICWA procedures meant to aid in keeping Indian children in Indian

homes are the same either way. So is the inquiry into whether a child is Indian.

The majority errs in following recent cases from our division wrongly holding the

duty to inquire of “extended family members” about whether a child is Indian is triggered

only when the children are taken into custody without a warrant. (See In re Robert F.

(2023) 90 Cal.App.5th 492 (Robert F.), review granted July 26, 2023, S279743). Rather,

“there is only one duty of initial inquiry, and that duty encompasses available extended

family members no matter how the child is initially removed from home.” (In re Delila

D. (2023) 93 Cal.App.5th 953, 962, review granted Sept. 27, 2023, S281447.)

I

Whether a warrant is used or not, a California dependency case with an Indian

child involves an “emergency removal” in an “emergency proceeding” under ICWA.

Congress enacted ICWA in 1978 to provide minimum federal standards for

removing Indian children from their families and guidance for placing them in homes

reflecting “the unique values of Indian culture.” (25 U.S.C. § 1902.) The statute applies

to “child custody proceedings,” which it defines as actions involving foster care, the

termination of parental rights, or adoption. (25 U.S.C. § 1903(1).)

1 ICWA gives Indian tribes exclusive jurisdiction over child custody proceedings

involving Indian children domiciled on the tribe’s reservation, or who are wards of the

tribe, and concurrent jurisdiction over proceedings involving other Indian children. (25

U.S.C. § 1911.) It requires ten days’ notice to tribes of their right to intervene in a state

removal or placement hearing. (25 U.S.C. § 1912(a).) It requires a demonstration of

“active efforts” to prevent the Indian family’s breakup. (25 U.S.C. § 1912(d).) It enacts

standards for removal and foster care placement, including requiring expert testimony

about harm to the child from the parent. (25 U.S.C. § 1912(b) – (f).) And, where a

removal occurs, it prioritizes placement of Indian children with the Indian child’s family,

members of the tribe, or other Indian families. (25 U.S.C. § 1915.)

But ICWA’s subchapter on child custody proceedings provides for an exception to

those requirements for an “emergency removal” of an Indian child. (25 U.S.C. § 1922.)

“Recognizing . . . that a Tribe may not always be able to take swift action to exercise its

jurisdiction, Congress authorized States to take temporary emergency action.” (81 Fed.

Reg. 38778, 38816.) States may do so “to prevent imminent physical damage or harm to

the child.” (Id. at p. 38817) The emergency removal must “terminate immediately” if

“no longer necessary to prevent imminent physical damage or harm.” (Ibid.) Emergency

removals are to “be as short as possible.” (Id. at p. 38818.) If an Indian child is not

returned home or jurisdiction transferred to a tribe, states must expeditiously “initiate a

child custody proceeding subject to all ICWA protections.” (Ibid.)

2 In every California dependency case involving an Indian child, the removal at the

initial hearing (often called the detention hearing) is an emergency removal. That hearing

is governed by Welfare and Institutions Code section 319. (Undesignated statutory

citations here refer to that Code.) As our Legislature put it: “In the case of an Indian

child, the hearing pursuant to Section 319 shall be considered an emergency

removal under Section 1922 of the federal Indian Child Welfare Act of 1978 (25 U.S.C.

Sec. 1922).” (§ 315.) The Legislature reiterated in section 319 that an order detaining an

Indian child through the section “shall be considered an emergency removal within the

meaning of Section 1922 of the federal Indian Child Welfare Act of 1978.” (§ 319, subd.

(i).) A detention hearing occurs in every dependency case—warrant or not—where a

child is removed from parents. If the child is Indian, a removal at that hearing is an

emergency removal under the ICWA.

Every initial removal of a child in a California dependency case also comes in

what federal regulations define as an “emergency proceeding.” In June 2016 regulations

meant to improve ICWA’s implementation, the Department of the Interior’s Bureau of

Indian Affairs defined an “emergency proceeding” as “any court action that involves an

emergency removal or emergency placement of an Indian child.” (25 C.F.R. § 23.2

(2023).) Our Legislature accordingly defined “[e]mergency proceeding” for dependency

purposes as “the initial petition hearing held pursuant to Section 319.” (§ 224.1, subd.

(l); see § 224.1, subds. (d)(1), (d)(1)(A) [“emergency proceeding under section 319” and

“emergency proceeding requirements set forth in section 319”]; § 319, subd. (i)

3 [detention order occurs in an “emergency proceeding”)]. Thus, under both federal

regulations and California statutes, a detention hearing involving an Indian child is an

“emergency proceeding.” That is so whether a warrant is used or not.

For any detention hearing involving an Indian child, our Legislature adapted the

federal “standards for emergency proceedings involving an Indian child” in the 2016

regulations. (25 C.F.R. 23.113 (2023).) The requirements for a “petition for a court

order authorizing the emergency removal or continued emergency placement” became

(with small changes) part of our law governing a detention hearing involving an Indian

child. (Compare 25 C.F.R. 23.113(d)(1)-(10) (2023) with § 319, subds. (b)(1)-(9).) If,

by the detention hearing, a court has reason to know a child is Indian, the county social

worker must provide “a specific and detailed account of the circumstances that caused the

Indian child to be taken into temporary custody” and information about the “imminent

physical damage or harm.” (§ 319, subds. (b)(7), (b)(1).) This is because—whether a

warrant has been used or not—at the detention hearing, a court “may only detain the

Indian child if it also finds that detention is necessary to prevent imminent physical

damage or harm.” (Id., subd. (d).) The court must state the facts supporting that finding.

(Ibid.) The social worker must also provide other information about notice to the tribe,

potentially keeping the child with the parents, and placing the child in an Indian home.

(Id., subds. (b)(2)-(6), (8)-(9).) This is because the trial court must make other findings

about efforts to prevent the family breakup or comply with ICWA placement preferences.

(Id., subds. (f)(2), (f)(3), (h)(1)(C).) These requirements apply, warrant or not, to an

4 Indian child’s detention hearing. (See also Cal. Rules of Court, rules 5.480(1), 5.484;

undesignated rules references here refer to the Cal. Rules of Court.)

Under the above statutes, then, in any dependency case where a child is removed

from their parents and the county then learns that the child is Indian, the detention

hearing is an emergency proceeding to determine whether the ICWA emergency removal

standard is met, and, if so, to place the child accordingly. If the emergency proceeding

continues (without transfer to a tribe or the return of the child to parents), the case must

then progress to a child-custody proceeding in accord with ICWA’s protections. This is

the process with any Indian child, whether a warrant was used or not.

II

The section above explains the emergency proceeding that occurs in a California

dependency case if a removed child is Indian, whether or not a warrant is used. The issue

before us, however, is about the duty to inquire whether a child is Indian. Like the

emergency proceeding, the inquiry duty is not affected by whether a warrant is used to

take the child from the parents.

The “initial inquiry” duty applies when a county department has no reason to

believe a child is Indian. When a department conducts an initial inquiry, there is no

“emergency proceeding” under ICWA, as there is no emergency removal or placement of

an Indian child. (25 C.F.R. § 23.2 (2023).) If the initial inquiry reveals reason to believe

that a child is Indian, a duty of “further” inquiry applies. (§ 224.2, subd. (e).) An initial

inquiry leads to an ICWA “emergency proceeding” if it reveals “reason to know” a child

5 is Indian. Then, the county department must provide information to justify the

emergency removal of an Indian child, while the court must determine whether the

removal is warranted and consider placement options. (See § 319, subd (b).)

The initial inquiry duty comes from two code subsections. First, from the outset

of a dependency investigation, a county welfare department has an “affirmative and

continuing duty” to inquire into whether the child involved is Indian. (§ 224.2, subd. (a).)

The general duty thus applies during the early investigation of an allegation against a

parent or guardian, and it applies when children are maintained with their families. The

“‘affirmative and continuing’” language means that a county welfare department’s duty

lasts throughout the dependency. (In re Isaiah W. (2016) 1 Cal.5th 1, 11.)

If an investigation proceeds such that a child is removed from home, the initial

inquiry duty becomes more specific, including requiring inquiry of extended family

members. Section 224.2, subdivision (b), effective January 1, 2019, imposes on the

department a duty to ask whether a child placed in the department’s temporary custody

under section 306 is an Indian child, an inquiry that “includes, but is not limited to,

asking the child, parents, legal guardian, Indian custodian, extended family members,

others who have an interest in the child, and the party reporting child abuse or neglect,

whether the child is, or may be, an Indian child . . . .” (Ibid.; see Assembly Bill No. 3176

(2017-2018 Reg. Sess.), Stats. 2018, ch. 833, § 5 (Assembly Bill 3176).)

Before the court holds a detention hearing, most children are placed in the

department’s temporary custody under section 306. The custody is temporary because

6 the child is about to be either detained or returned to their parents at the initial hearing.

Among the ways that a child can enter the department’s temporary custody is by delivery

to the department after removal by warrant. (In re Samantha F., (2024) 99 Cal.App.5th

1062, 1069.) Section 306 provides for department social workers to receive and maintain

temporary custody of children delivered by a peace officer, and the statute authorizing

warrants requires that a removed child “shall immediately be delivered to the social

worker.” (§ 306, subd. (a)(1); § 340, subd. (c).) In adding the provision requiring

delivery to the social worker in the bill that created the warrant process, the author

explained it was meant to clarify that provisions for children placed in the department’s

temporary custody applied to children removed by warrant. (In re Samantha F., supra,

99 Cal.App.5th at p. 1084.)

At times, a child is ordered detained for the first time at the initial hearing without

entering the department’s temporary custody. Then, the strict terms of the statute would

not trigger the extended family inquiry duty, which begins when the child is taken into

the department’s temporary custody. But in that circumstance our rules of court impose

the same duty. Rule 5.481(a)(1) applies the duty to inquire of extended family members

in all dependency cases where termination of parental rights is at issue. (See Dept. of

Social Services Regs. 31-101.11, 31-125.225 (DSS).) The rule aligns with the statute’s

placement of an affirmative and continuing duty to inquire into whether children are

Indian. The Legislature created the inquiry to protect ICWA’s interest in the removal and

placement of Indian children in homes reflecting Indian culture. (See 25 U.S.C. § 1902.)

7 That interest applies equally to children removed for the first time at a hearing, so the

Legislature would want the affirmative inquiry duty to cover them.

In the legislative history of Assembly Bill 3176, there is no express explanation

for the inclusion of the extended family inquiry. There are two possible sources of the

idea. One is the Bureau of Indian Affairs Guidelines for Implementing the Indian Child

Welfare Act (December 2016) (BIA Guidelines) [as of

May 3, 2024]. Chapter C of that guidance concerns “emergency proceedings” and

contains nine guidelines with recommendations about implementing the 2016 ICWA

regulations about those proceedings. In interpreting 25 Code of Federal Regulations part

23.113 (2023), which provides the standards for emergency proceedings, guideline C.7

recommends in emergency situations “the State agency ask the family and extended

family whether the child is a Tribal member” or whether the child is eligible for

membership due to a parent. That inquiry leads to an emergency proceeding if it reveals

a reason to know the child is Indian. In a California dependency case, that emergency

proceeding is the detention hearing, for which our Legislature has adapted procedures

from the regulation guideline C.7 interprets (25 C.F.R. § 23.113 (2023)). That detention

hearing occurs with an Indian child, warrant or not. If our Legislature looked to

guideline C.7 in creating the extended family inquiry, it would apply that inquiry in all

situations that could result in an emergency proceeding. There would be no reason to

exclude cases with warrants.

8 The second possible source is the 2017 report of an ICWA task force appointed by

the State Attorney General, which concluded “initial inquiry should not be made only to

the parents” and explained its reasons for that conclusion. (Cal. ICWA Compliance Task

Force, Report to the Cal. Attorney General’s Bureau of Children’s Justice, p. 28

[as of May 3, 2024].(Task Force).) The executive

director of the group that sponsored Assembly Bill 3176 in 2018 testified in introducing

the bill that her organization was “‘a successor organization’” to the task force and was

formed to implement it. (In re Samantha F., supra, 99 Cal.App.5th at pp. 1081-1082.)

The report also provides no reason to exclude children removed by warrant from an

extended family inquiry duty.

Regardless of which of these sources inspired the Legislature, the simple answer

to the question before us is that rule 5.481(a)(1) has it right. The duty to inquire of

extended family about whether a child is Indian applies in all dependency cases where

parents face the termination of parental rights. The use of a warrant does not matter.

III

For about four years after our Legislature in 2018 enacted the requirement that

county welfare departments inquire of extended family as part of the initial inquiry,

federal ICWA law played no role in caselaw interpreting that requirement. Instead, our

courts simply applied the extended family inquiry in all dependency appeals. (See, e.g.,

In re M.M. (2022) 81 Cal.App.5th 61, 65, 70 [stating, in case where children were

removed by warrant, that the initial inquiry duty requires departments to ask extended

9 family about the child’s Indian ancestry “in every case”].) Applying the requirement in

this way was not controversial.

But then the concurring opinion in In re Adrian L. (2022) 86 Cal.App.5th 342,

353-374 (Kelley, J., concurring) (Adrian L.) contended that our Legislature intended for

the extended family inquiry to apply only in cases without warrants. The opinion read

the statutes as meaning that among the children awaiting detention hearings in child

welfare department custody, only those removed without a warrant are in “temporary

custody” under section 306; children removed by warrant are in the department’s

“‘protective custody’” but not in “‘temporary custody.’” (But see In re Samantha F.,

supra, 99 Cal.App.5th at p. 1070 [contrary view that “temporary custody” means in

custody awaiting a detention hearing, so all such children are in temporary custody].)

The Adrian L. concurrence argued that its view derived from the 2016 federal

ICWA guidelines. (Adrian L., supra, 86 Cal.App.5th at pp. 361-365.) In so doing, it

misread those guidelines. It concluded that the use of a warrant meant a child’s removal

was not an “emergency removal” under ICWA, so the recommendation to inquire of

extended family in BIA guideline C.7 would not apply. (Adrian L., at p. 362.) That

misunderstands the federal ICWA statutes and the 2016 guidelines. (See In re Samantha

F., supra, 99 Cal.App.5th at p. 1078.)

The Adrian L. concurrence focused on the California standard for warrant

removals. (Adrian L., supra, 86 Cal.App.5th at pp. 362-363.) In California, non-warrant

removals require the “imminent physical damage or harm” needed for an emergency

10 removal of an Indian child, but removals by warrant are allowed if there is just a

“‘substantial danger’” of “emotional” damage. (See In re Samantha F, supra, 99

Cal.App.5th at p. 1079.) The Adrian L. concurrence concluded from this distinction that

the removal by warrant of an Indian child “would not be an ‘emergency removal’ under

federal law.” (Adrian L., supra, 86 Cal.App.5th at pp. 363-364.)

In fact, if an Indian child is involved, federal law requires—in either case, warrant

or not—justification of an emergency removal at a detention hearing under the “imminent

physical damage or harm” standard. (See In re Samantha F., supra, 99 Cal.App.5th at p.

1079.) “Any prepetition removal of an Indian child is subject to the ICWA emergency

proceeding standard, requiring imminent physical damage or harm—no matter that

California law would allow removal of non-Indian children using a lesser standard, if a

warrant is obtained.” (Id. at pp. 1080-1081.)

Today’s majority opinion does not defend the Adrian L. concurrence’s argument

that the lower standard for California removal warrants means that an Indian child is not

in an emergency removal if removed by a warrant. Instead, the majority opinion relies on

a different argument, based on the nature of a warrant. It reads BIA guideline C.2 as

defining an “emergency removal” as one “without court authorization.” (Maj. opn., ante,

at pp. 8-9, 17-18, 36.) It concludes this BIA guideline means removals by warrant are not

emergency removals, and our Legislature made a “decision to follow it.” (Id. at pp. 9,

36.)

11 There are two broad flaws in this argument. One is that our Legislature has

defined every detention hearing involving an Indian child as an emergency removal in an

emergency proceeding, as discussed in section I, above. Even if the majority were

correct that federal law provides less ICWA protection when a child is initially removed

by warrant than exists for an emergency removal, our Legislature’s decision to provide

stronger protection would still govern. (25 U.S.C. § 1921.) And its view that every

detention hearing is an emergency removal means that our Legislature did not decide that

some are not.

The second broad flaw is that under ICWA there is no less protective option for

the removal of an Indian child than an emergency proceeding. The only other option is a

child-custody proceeding subject to full ICWA protections. If a detention hearing

involving an Indian child removed by warrant is not an emergency proceeding, then the

more protective child-custody proceeding is the only other option. The majority suggests

the detention hearing involving an Indian child removed by warrant is somehow subject

to neither full ICWA protections nor the rules governing emergency removals. Federal

law offers no such option.

Along with these two broad flaws, the majority’s reading of the BIA guidelines is

wrong. The BIA guidelines, like the federal regulations, are written to apply across 50

states. Guideline C.1 interprets the definition of “emergency proceeding,” which

“includes any court action that involves an emergency removal or emergency placement

of an Indian child.” It cites to 25 United States Code section 1922, which it identifies as

12 the statutory authority allowing states to remove children “notwithstanding the provisions

of” ICWA to “prevent imminent physical damage or harm to the child.” It recognizes

that states use “different . . . terminology for emergency hearings” but they are meant to

cover proceedings needed to “prevent imminent physical damage or harm to the child.”

(BIA Guidelines, C.1, p. 23.) This means that whatever method a county welfare

department uses to remove an Indian child, it must either satisfy all the provisions of

ICWA (a child-custody proceeding) or satisfy the “imminent physical damage or harm to

the child” standard for an emergency hearing (under California law, the detention

hearing.) As there is no time to give ten days’ notice to the child’s tribe (25 U.S.C. §

1912(a)) before a detention hearing, the only option for such a hearing is an emergency

hearing to determine whether the emergency removal standard is satisfied. Warrant or

not, there is no other option for removing an Indian child.

Rather than focusing on that BIA guidance about the definition of emergency

proceeding in guideline C.1, the majority focuses on a phrase in the commentary in

guideline C.2. This commentary addresses a state’s showing to justify an emergency

removal, that is, that the removal is “necessary to prevent imminent or physical damage

or harm to the child.” (Guideline C.2 [quoting 25 C.F.R. 23.113(b)(1) (2023)].)

According to the commentary, the BIA believes that standard is needed to justify

removing any child (not just an Indian child) without due process. The commentary then

acknowledges that children can be removed “without court authorization” in emergency

circumstances. This is what the majority concludes is a BIA “recommendation” that

13 “extended family member inquiry [is required in] only the subclass of cases in which the

children were initially taken from parental custody without court authorization.” (Maj.

opn., ante, at p. 36.)

The BIA guideline recommends nothing of the sort. It simply recognizes that

children can and sometimes must be removed without prior court authorization. It does

not suggest that due process generally, or ICWA more specifically, is satisfied when

children are removed by an ex parte court order, such as a warrant. Such removals still

need to be justified at a court hearing—such as California’s detention hearing—both for

non-Indian children and Indian children. Warrants are nowhere discussed in the BIA

guidance, which was issued in 2016, before California’s prepetition dependency warrant

process was enacted in 2017. A child removed with such a warrant is still subject to a

section 319 detention hearing. If the removed child is Indian, that detention hearing is by

definition an emergency removal in an emergency proceeding, and it includes the ICWA

emergency removal procedures discussed in the BIA guidelines C.3, C.4, C.5, and C.6.

There is no good reason why the removal of a child by warrant should not trigger the

recommended guideline C.7 inquiry procedure that even the majority believes applies

when children are removed without a warrant. Federal ICWA law supports the identical

treatment of our dependency cases, whether a warrant is used for removal or not.

IV

Following are comments on five more items.

14 First, the majority opinion suggests the Legislature might have required extended

family inquiry in warrantless cases (but not those with warrants) because parents might

more often be absent at the time of such a removal. (Maj. opn., ante, at pp. 10, 11, 26,

36.) Nothing suggests that the Legislature considered that issue. But, in any event, the

notion that warrantless removals more often include absent parents is speculation. The

most prominent reason for a warrantless removal is that the child faces an “immediate

danger of physical or sexual abuse or the physical environment poses an immediate threat

to the child’s health or safety.” (§ 306, subd. (a)(2).) Unfortunately, it is often one or

both parents who pose this immediate threat to the child, requiring immediate action

without prior court authorization. Absent or uncooperative parents, on the other hand,

may well pose a less immediate threat, so the department has time to obtain a warrant.

(See, e.g., In re Robert F., supra, 90 Cal.App.5th at p. 498 [department “was unable to

interview Mother” before detention hearing]; In re Andres R. (2023) 94 Cal.App.5th 828,

838, review granted Nov. 15, 2023, S282054 [social worker “was unable to ask Father

about Indian ancestry because of his refusal to be interviewed”]; In re Jerry R. (2023) 95

Cal.App.5th 388, 405-406 [“Father and Mother refused to cooperate” with investigation

and to execute warrant “police forced entry after Mother refused to open the door.”)

Second, the majority opinion places some emphasis on the possibility that a child

might not be delivered to the welfare department by a “peace officer” after execution of a

warrant. Section 306, subdivision (a)(1), authorizes departments to take temporary

custody over children “delivered by a peace officer.” Tying to that language, the

15 Legislature required in 2017 that “[a]ny child” taken into protective custody by a warrant

“shall immediately be delivered to the social worker. . . .” (§ 340, subd. (c).) Not only

does that language show that the Legislature intended children removed by warrants to

enter the department’s temporary custody, but the author of that 2017 provision explained

that it was added to ensure that children removed by warrant were subject to the

departmental procedures for children taken into temporary custody. (In re Samantha F.,

supra, 99 Cal.App.5th at p. 1084.) If state regulations are followed, it will always be a

peace officer that delivers the child removed by a warrant, because a social worker must

be “deputized as a peace officer” or “shall” request law enforcement assistance when

placing a child into temporary custody, unless the social worker takes custody directly

under § 306. (DSS Regs. §§ 31-130.1, 31.130.12.) Given the existing law, it is

reasonable to conclude that when the Legislature in 2018 tied the “extended family”

inquiry to the child entering the department’s temporary custody, it would have expected

all the children in the department’s custody to be covered. Even if in some cases a person

who is not a “peace officer” delivers the child into a department’s temporary custody,

rule 5.481 accords with legislative intent by applying the duty to all cases involving

removed children.

Third, as explained in In re Samantha F., reading “temporary custody” to include

only children removed without warrants must be incorrect because it would have

unintended consequences in other places where the term “temporary custody” is used.

(In re Samantha F., supra, 99 Cal.App.5th at p. 1071.) Although these consequences

16 have never been recognized or alluded to by the Legislature or caselaw, the majority

opinion embraces them, even arguing that they were intended. Accepting the majority’s

view of the statute, then, means accepting there is differential treatment between children

removed with and without warrants in a provision about housing minors with adults.

(See maj. opn., ante, at pp. 24-26 [discussing § 206].) It means accepting that a social

worker has no statutory duty to act when a child needs “medical, surgical, dental, or other

remedial care” if a court issued a warrant authorizing the child’s removal. (§ 369; see

maj. opn., ante, at p. 23, fn. 6 [discussing § 369].) It means accepting that the Legislature

intended the social worker’s report to a court for an Indian child’s detention hearing need

not include an account of the circumstances that caused the child’s “temporary custody,”

because those circumstances were earlier put in a request to the judge who issued a

warrant. (See maj. opn., ante, at pp. 23-24 [discussing § 319, subd. (b)(7)].) It is

implausible the Legislature so intended. The better view, articulated in In re Samantha

F., is that the Legislature considered all children in custody awaiting their detention

hearing to be in “temporary custody.” The same procedures apply to all these removed

children.

One provision is worth special focus. The majority opinion is wrong that the duty

section 306, subdivision (d), imposes on social workers to contact a tribe that has

exclusive jurisdiction over an Indian child is limited to warrantless removals. (Maj. opn.,

ante, at pp. 22-23.) Section 306, subdivision (d), applies to children placed in the

department’s “temporary custody.” The social worker’s duty under this subdivision is

17 triggered, for example, if a child comes into a department’s temporary custody on a

warrant, and the department learns the child is a ward of an Indian tribe. Then, the

department must act under section 306, subdivision (d), to “transfer custody of the child

to the tribe.” The Department of Social Services accordingly requires that a social

worker who learns “that an Indian child who has been removed from the custody of his or

her parent(s)” is subject to a tribe’s exclusive jurisdiction must transfer the child to the

tribe, preferably before a dependency petition is ever filed. (DSS Reg. 31-135.234, 31-

135.234(a).)

The majority believes that in the situation where a warrant issued, section 305.5,

subdivision (b) applies instead of section 306, subdivision (d), so the juvenile court must

contact the tribe to determine whether the tribe wants to “accept transfer” of the case.

(Maj. opn., ante, at p. 22.) Not so. Section 305.5, subdivision (b), requires a court to act

during a “child custody proceeding” if it learns that an Indian tribe has exclusive

jurisdiction over a child, but what it requires the court to do is dismiss the case. Section

305.5, subdivision (b), does not allow a court to “transfer” an exclusive jurisdiction case;

a transfer would be an exercise of authority that the law does not grant the juvenile court.

(See 25 C.F.R. § 23.110 (2023) [mandatory dismissal provision that section 305.5

tracks]; Initial Statement of Reasons for DSS Reg. 31-136.32 [“If a tribe has exclusive

jurisdiction over the child custody proceeding, however, the state court has no authority

to make decisions regarding the child. It must therefore dismiss the dependency case.”];

18 see also 25 U.S.C. § 1919 [exception where state and tribe have an agreement between

the sovereigns].)

Before a petition is filed, though, there is no case to dismiss. The point of the

Legislature’s 2018 creation of section 306, subdivision (d), was to require the department

to act to transfer the child, rather than initiating a case over which the juvenile court lacks

jurisdiction. (See Initial Statement of Reasons for DSS Reg. 31-105.11 [amendments

made by Assembly Bill 3176 in 2018 “require child welfare services agencies to perform

such jurisdictional screens as early as possible in order to avoid initiating dependency

cases in state court where the state lacks jurisdiction”]). Section 306, subdivision (d)’s

use of the term “temporary custody” shows that the Legislature understood it to include

all children awaiting their prepetition detention hearing. It is not tenable to conclude that

the Legislature would require social workers to transfer children to tribes with exclusive

jurisdiction over them where the children are taken into custody without a warrant but not

with one.

Fourth, the majority offers its belief that a blanket requirement of extended family

inquiry includes situations where the biological parents both deny Indian ancestry,

rendering it “pointless” or of “negligible importance” to ICWA enforcement. (Maj. opn.,

ante, at p. 33-37.) The majority postulates that it is typically impossible for a child to be

Indian without the parents knowing it, and that parents would not conceal their tribal

connection. (Maj. opn., ante, at p. 34) This belief is directly contradicted by prominent

California evidence on the issue when the Legislature enacted Assembly Bill 3176. The

19 bill was 2018 legislation sponsored by a group formed to implement recommendations in

the 2017 Attorney General’s task force report. The report recommended initial inquiry of

extended family about whether a child is Indian because parents “may not have that

information, or may possess only vague or ambiguous information. [¶] [They] may be

fearful to self-identify . . . . [and] may even wish to avoid the tribe’s participation or

assumption of jurisdiction.” (Task Force, p. 28.) That conclusion came after testimony,

feedback, surveys, and interviews. (Task Force p. 1.) The task force recommendation

supports applying the extended family inquiry uniformly in a blanket manner.

Instead, the majority’s view is that the policy behind the requirement was to apply

the extended family inquiry only to children removed without a warrant. This conclusion

combines the majority’s view that inquiry of the parents is adequate with its belief

(discussed as the first point in this section above) that parents are more often absent when

a child is removed without a warrant. From those two beliefs, the majority concludes that

the Legislature acted to require the extended family inquiry only in cases where removal

was without a warrant. But neither of the majority’s two views were mentioned in the

legislative history of Assembly Bill 3176, nor in any identified study, like the task force

report. Indeed, for several years after Assembly Bill 3176, the legislative policy was

construed in the way the majority opposes. (E.g., In re Y.W. (2021) 70 Cal.App.5th 542,

556 [“the point of the statutory requirement that the social worker ask all relevant

individuals whether a child is or may be an Indian child” is “to obtain information the

parent may not have”]).] During those years, a rule of court and administrative

20 regulations were adopted—after public comment—to apply the extended family inquiry

as a blanket matter. (In re Samantha F., supra, 99 Cal.App.5th at pp. 1072-1073.) The

majority’s views on what policies the Legislature had in mind are new to the scene.

Moreover, the majority’s views rest on a subtle misunderstanding of the purpose

of the initial inquiry. The focus is not to discover information that will “reveal that the

child is an Indian child” (maj. opn., ante, at p. 34), but information that suggests the child

is Indian, requiring inquiry of, or notice to, a tribe so that it may determine whether the

parent or the child is a tribe member. (See In re T.G. (2020) 58 Cal.App.5th 275, 292-

297.) Whether a child or a parent is a tribal member is “solely within the jurisdiction and

authority of the Tribe . . . .” (25 C.F.R. § 23.108(b) (2023); In re Isaiah W., supra, 1

Cal.5th at p. 8.) A tribe’s determination is “conclusive” on our courts. (§ 224.2, subd.

(h).) When notice is provided to a tribe, that “often requires providing a tribe with

extensive biographical data (that is, information about ancestors and ancestry), which is

why section 224.3, subdivision (a)(5)(C), prescribes in detail the information about

parents, grandparents and great-grandparents that must be included in an ICWA notice.”

(In re T.G., supra, 58 Cal.App.5th at p. 294.) Indian ancestry learned from extended

family can provide a tribe a basis to determine the child is an Indian child. (See In re S.R.

(2021) 64 Cal.App.5th 303, 315-316 [discovery from extended family that great-

grandmother was a Yaqui tribe member triggered a duty for the department to inquire

further, including by contacting the Yaqui tribe].)

21 Fifth, and finally, this case’s path helps illustrate the oddity of tying the scope of

the ICWA inquiry to the way a child is placed in temporary custody. The investigation

here began on November 19, 2020, and this appeal was taken from the order terminating

parental rights nearly three years later, on October 12, 2023. In the midst of that span

exceeding 1000 days, the child was detained on a protective custody warrant for five

days, from March 25 through March 30, 2021. Under the majority’s view, the fact that

those five days in custody were on a warrant restricts the scope of the ICWA inquiry. It

is implausible the Legislature intended that. It may be debatable how much inquiry of

extended family members is the minimum required (or that should be required) in a

family’s particular circumstances. But those five days have nothing to do with it.

Rule 5.481 has this matter correct. Counties are to inquire of extended family

about a child’s Indian heritage in all dependency cases where children are removed from

their parents. The majority opinion’s approach of declaring that rule “invalid” as in

conflict with what the Legislature wanted (maj opn., ante, at p. 15) perpetuates a

misreading of the law that began with the Adrian L. concurrence. Delila D. and the

divisions that follow it have charted the course that we should follow. (See In re C.L.

(2023) 96 Cal.App.5th 377; In re Jerry R. (2023) 95 Cal.App.5th 388; In re V.C. (2023)

95 Cal.App.5th 251; In re L.B. (2023) 98 Cal.App.5th 512.)

V

I respectfully dissent because the failure to inquire of D.M.’s readily available

extended family members was error. That D.M. was removed by warrant does not

22 matter. As these available family members include six maternal aunts and two paternal

aunts, I would not find the error harmless. (See In re Benjamin M. (2021) 70 Cal.App.5th

735, 744.) I would conditionally affirm and remand for completion of the ICWA inquiry.

RAPHAEL J.