BACKGROUND

In October 2022, the child, then 18 days old, was taken into custody pursuant to a

Penal Code section 1524 detention warrant obtained by respondent San Bernardino

County Children and Family Services (the Department).2 The Department placed the

child in foster care and filed a section 300 juvenile dependency petition.

The juvenile court found the child came within section 300, declared her a

dependent of the court, removed her from parental custody and continued her in a relative

home where she had by then been placed. It ordered family reunification services to be

provided to mother and the child’s presumed father.

Reunification efforts were unsuccessful, and the court terminated them at the

September 2023 six-month review hearing held 10 months after the child was removed

1 All further statutory references are to the Welfare and Institutions Code of California unless otherwise designated. References to rules are to California Rules of Court.

2 The child’s three maternal half siblings were also removed from mother’s home and placed with the previously noncustodial father. The court dismissed the dependency proceedings as to the half siblings and issued a custody order giving their father sole physical custody with legal custody to both parents.

2 from home. In March 2024, the court ordered termination of parental rights and mother

timely noticed this appeal.

DISCUSSION

Mother argues that conditional reversal of the order terminating parental rights is

called before because the Department failed to comply with the ICWA inquiry

requirements set forth in former subdivision (b) of section 224.2 (added by Stats. 2018,

ch. 833, § 5 (Assem. Bill No. 3176), eff. Jan. 1, 2019). The Department agrees

conditional reversal is appropriate if subdivision (b) of section 224.2 applies.

1. The Statutory Framework

ICWA was enacted by Congress to protect the best interests of Indian children,

and to promote the stability and security of Indian tribes and families in child custody

proceedings, including juvenile dependency cases. (25 U.S.C. §§ 1902, 1903(1); 25

C.F.R. § 23.106 (2024).) To that end, California law imposes an affirmative and

continuing duty on the juvenile court and child services agencies such as the Department

to inquire whether a child for whom a section 300 juvenile dependency petition has or

may be filed is or may be an Indian child. (§ 224.2, subd. (a).) Rule 5.481(a)(5) requires

the agency to include in its filings on an ongoing basis a detailed description of all

inquiries undertaken, and all information it received pertaining to the child’s Indian

status.

Section 224.2 and rule 5.481 sets forth California’s provisions governing the

timing and scope of the Department's and the juvenile court's respective duties of ICWA

inquiry. The Department’s duty of inquiry attaches at its first contact concerning the

3 child. (§ 224.2, subd. (b)(1), formerly subd. (a), which was renumbered and revised

without substantive change, Stats. 2024, ch. 656, § 3, eff. Sept. 27, 2024.) During the

course of the juvenile dependency proceedings leading up to termination of parental

rights in this case, the minimum inquiry requirement imposed on the Department was to

ask the reporting party whether that person had any information that the child may be an

Indian child. (Former § 224.2, subd. (a).) That duty expanded to include the child,

parents, legal guardian, Indian custodian, extended family members, and others who have

an interest in the child “[i]f a child is placed into the temporary custody of a county

welfare department pursuant to Section 306.” (Former § 224.2, subd. (b).)

In our early cases addressing subdivision (b) of section 224.2, we found the duty

of inquiry applied in every dependency proceeding. (In re C.L. (2023) 96 Cal.App.5th

377, 385 (C.L.) (Third District).) In 2022, however, a concurring opinion in In re

Adrian L. (2022) 86 Cal.App.5th 342, 353-354 (conc. opn. of Kelley, J.), gave rise to the

notion that the reference to section 306 in former subdivision (b) of section 224.2 meant

that the extended inquiry requirement does not apply if a child was taken into custody

pursuant to a protective custody warrant. Some panels of this court adopted that

approach. (In re Robert F. (2023) 90 Cal.App.5th 492, 504, review granted July 26,

2023, S279743 (Robert F.); In re Ja.O. (2023) 91 Cal.App.5th 672, 677-678, review

granted July 26, 2023, S280572; In re Andres R. (2023) 94 Cal.App.5th 828, 860, review

granted, Nov. 15, 2023, S282054.)

On the other hand, the majority of another panel of this court disagreed with

Robert F., supra, 90 Cal.App.5th 492 line of cases in In re Delila D. (2023) 93

4 Cal.App.5th 953, 965-976, review granted Sept. 27, 2023, S281447 (Delila D.).

Delila D. held the expanded duty of inquiry applies whether or not a child is removed

pursuant to a protective custody warrant, that is, the way a child is initially removed from

home has no bearing on the question of whether they may be an Indian child. (Delila D.,

supra, at pp. 965-976; accord, In re L.B. (2023) 98 Cal.App.5th 512, 516-519 (First Dist.,

Div. Four); In re Samantha F. (2024) 99 Cal.App.5th 1062 (Samantha F.) (Fourth Dist.,

Div. Two); C.L., supra, 96 Cal.App.5th at pp. 385-391 (Third Dist.); In re V.C. (2023) 95

Cal.App.5th 251, 256-260 (First Dist., Div. Two); In re Jerry R. (2023) 95 Cal.App.5th

388, 411-426 (Fifth Dist.).)

The majority of the panel in Samantha F., which embraced the reasoning of

Delila D., supra, 93 Cal.App.5th 953 added that the reasoning of Robert F., supra, 90

Cal.App.5th 492 is also faulty because it misconstrues the term ‘“protective custody”’ as

exclusive of ‘“temporary custody,”’ and erroneously misinterprets federal ICWA law in

an effort to support the notion that the protection afforded ICWA inquiry does not apply

to children removed by a warrant. (Samantha F., supra, 99 Cal.App.5th at pp. 1068-

1069.)

Recently, the California Legislature amended as part of an urgency measure

subdivision (b) of section 224.2 “clarifying” that a county welfare department has an

obligation to inquire whether a child is an Indian child even when placed in temporary

custody pursuant to a section 340 warrant. (§ 224.2, subd. (b)(2), added by Stats. 2024,

ch. 656, § 3, eff. Sept. 27, 2024; Sen. Rules Com., Off. of Sen. Floor Analyses, 3rd

reading analysis of Assem. Bill No. 81 (2023-2024 Reg. Sess.), as amended Sept. 1,

5 2023, pp. 6-8; Sen. Com. on Judiciary, com. on Assem. Bill. No. 81 (2023-2024 Reg.

Sess.) for Aug. 13, 2024 hearing; Assem. Conc. in Senate Amends. to Assem. Bill No. 81

(2023-2024 Reg. Sess.) as amended Aug. 19, 2024, pp. 2-3.) In its present form, the

extend inquiry provision states in relevant part that:

“If a child is … taken into or maintained in the temporary custody of a county

welfare department pursuant to paragraph (2) of subdivision (a) of Section 306, or if they

were initially taken into protective custody pursuant to a warrant described in

section 340, the county welfare department … has a duty to inquire whether that child is

an Indian child. Inquiry 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 and where the child, the parents, or Indian custodian is domiciled.” (§ 224.2,

subd. (b)(2).)

We recognize the general rule that applying an amended provision does not

operate retrospectively unless the Legislature plainly indicates otherwise. (In re S.B.

(2004) 32 Cal.4th 1287, 1296.) In a case like the present one, however, in which the

amendment to the statute is made to clarify existing law, then it is not retrospective

because the true meaning of the statue has not changed. (Ibid.)

2. The Lack of Compliance with California’s Expanded ICWA Inquiry Provisions

In this case, mother claims, and the Department concedes, that mother and father

provided the paternal grandfather’s name and contact information, but he was not

6 contacted by the Department to inquire whether the child has or may have Indian

ancestry.

The record supports mother’s claim. The paternal grandfather’s name (I.V.) and

telephone number were provided by the child’s parents at the time of the hearing on

jurisdiction and disposition but there is nothing in the Department’s reports to indicate

any effort was made to contact him.

We note, too, that the parents listed the name and contact information for a

grandmother, G.L., on the Department's “Family Find and ICWA Inquiry” form. There

is no mention in the record that G.L. was contacted.

In addition, the Department reported contacts in October and November 2022 with

the maternal grandmother, D.B. D.B. provided information suggesting that the child’s

deceased maternal grandfather might have had have Native American ancestry, including

that his sister, also deceased, lived on an Indian reservation. In August 2023, the

Department’s social worker reported calling the Bureau of Indian Affairs (BIA) and

leaving a voice mail message requesting a call back, and in September 2023, the worker

sent an email to the BIA asking for guidance but did not provide the maternal

grandfather’s full name. The worker did not make further effort to contact BIA when she

did not receive a response.

In view of the Department’s failure to comply with the requirement that it ask

extended family members or others having an interest in the child whether the child does

or may have Indian ancestry, conditional reversal of the order terminating rights is

7 required. (In re Dezi C. (2024) 16 Cal.5th 1112, 1141 [if the Department's inquiry is

inadequate, conditional reversal is required to permit correction of the error].

DISPOSITION

The order terminating parental rights is conditionally reversed. On remand, the

juvenile court shall order the Department to comply with the duty of initial inquiry

(§ 224.2, subd. (b)(2); rule 5.481) and, if applicable, the duty of further inquiry (§ 224.2,

subd. (e)) and the duty to provide notice to the pertinent tribes (25 U.S.C. § 1912(a);

§ 224.3). If the juvenile court determines that ICWA does not apply, then the court shall

reinstate the order. If the court determines that ICWA does apply, then it shall proceed in

conformity with ICWA and related California law.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

MILLER

J.

CODRINGTON

J.

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