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Div. Two of Fourth District C.A. Disagrees With April 12 Opinion of That Division
Majority Says Inquiry As to Child’s Indian Heritage Must Be Made in All Dependency Proceedings
By a MetNews Staff Writer
A child welfare agency is obliged to make an inquiry of parents and extended family members as to whether the child has native American heritage whether that child is taken into protective custody with or without a warrant, Div. Two of the Fourth District Court of Appeal has declared, rejecting a contrary view expressed by members of the same division on April 12.
In that earlier opinion, in In re Robert F., Justice Frank J. Menetrez wrote that the statute requiring an inquiry “does not apply when a county welfare department takes a child into protective custody pursuant to a warrant.” Joining in his opinion were Acting Presiding Justice Douglas P. Miller and Justice Richard T. Fields.
On Friday, Div. Two took a contrary stance.in an opinion by Justice Marsha G. Slough, joined in by Justice Michael J. Raphael. Miller dissented.
Slough’s Opinion
Slough wrote:
“We conclude 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. Applying a narrower initial inquiry to the subset of dependencies that begin with a temporary removal by warrant frustrates the purpose of the initial inquiry….”
Tribes otherwise would be denied the benefit created in 2018 when Assembly Bill No. 3176 was enacted, she said. The act supplements the federal Indian Child Welfare Act (“ICWA.”)
Slough declared:
“The goal of the initial inquiry is to determine whether ICWA’s protections may apply to the proceeding, and the way a child is initially removed from home has no bearing on the question of whether they may be an Indian child. The holding of Robert F. is, in our view, contrary to both the letter and spirit of A.B. 3176.”
Robert F. is predicated on an interpretation of Welfare and Institutions Code sections.
Legislative Intent
Slough protested:
“Here, the obvious purpose of A.B. 3176 was to expand the scope of the initial inquiry beyond the parents. Nothing in the text of that amendment or its legislative history suggests an intent to apply the expanded inquiry in some cases but not others. Indeed, A.B. 3176 itself states that it amends existing law to ‘revise the specific steps a social worker...is required to take in making an inquiry of a child’s possible status as an Indian child.’…Notably, the Legislature did not say those steps apply only in the subset of dependency proceedings that begin with warrantless removals. We think that if the Legislature intended to so limit the initial inquiry, it would have said so.”
She added that “it simply doesn’t make sense to apply different initial inquiries depending on how the child was initially removed from home, as that procedural happenstance has nothing to do with a child’s ancestry.”
Miller argued that, as found in Robert F., Welfare & Institutions Code §224.2(b) “only requires that the Department make an inquiry of extended relatives if the child “is placed into the temporary custody of a county welfare department pursuant to Section 306” and §306 spells out a warrantless procedure.
The case is In re Delila D, 2023 S.O.S. 2636.
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