In re V.C.

Filed 9/6/23
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

In re V.C. et al., Persons Coming
Under the Juvenile Court Law.

ALAMEDA COUNTY SOCIAL
SERVICES AGENCY,
A166527
Plaintiff and Respondent,
v. (Alameda County
Super. Ct. Nos. JD03188201,
John C. et al.,
JD03191801)
Defendants and Appellants.

In a previous appeal in these dependency proceedings with respect to
V.C. and Z.C., we reversed the juvenile court’s order terminating the parental
rights of John C. (father) and Vanity L. (mother) (together, parents) and
remanded for a new Welfare and Institutions Code1 section 366.26 hearing to
consider the beneficial relationship exception under In re Caden C. (2021)
11 Cal.5th 614 (Caden C.). On remand, the juvenile court again terminated
parental rights. Both parents, each represented by separate counsel, have
again appealed, both arguing that respondent Alameda County Social
Services Agency (the agency) failed to comply with the Indian Child Welfare
Act (ICWA) (25 U.S.C. § 1901 et seq.) by not asking available extended family
members about the children’s possible Indian ancestry. We agree, and

1 Further undesignated statutory references are to the Welfare and

Institutions Code.

1
conditionally reverse and remand for the agency to conduct the appropriate
ICWA inquiry.
BACKGROUND
A more detailed recitation of the facts of these dependency proceedings
is contained in our prior unpublished opinion, In re V.C. (Feb. 22, 2022,
A163417) [nonpub. opn.]. We set forth only the facts relevant to the ICWA
issue raised on appeal.
On December 2, 2019, the agency filed a petition pursuant to
section 300, subdivisions (b)(1) and (j) regarding infant boy V.C., born that
November. Among other allegations, the petition included that mother tested
positive for methamphetamine at V.C.’s birth, resulting in V.C. experiencing
withdrawal symptoms. A similar petition was filed with respect to Z.C on
December 11. According to detention reports filed shortly thereafter, V.C.
was placed in protective custody on November 17, and a search and seizure
warrant with respect to Z.C. was signed on November 26 and served on
December 9, on which date Z.C. was taken into protective custody.
According to the Indian Child Inquiry Attachment form attached to the
petitions, each child “has no known Indian ancestry,” and on November 25,
2019, a social worker spoke with both parents, who each “denied any Native
American ancestry.”
On December 3, both parents completed and filed “Parental
Notification of Indian Status” forms, checking the box to indicate “I have no
Indian ancestry as far as I know,” and signing the form under penalty of
perjury.
On March 9, 2020, the juvenile court held combined jurisdiction and
disposition hearings with respect to both V.C. and Z.C. The court found the
allegations of the petitions true, declared the children dependents, removed

2
them from parental custody, and ordered reunification services. Based on the
Parental Notification of Indian Status forms, the court concluded that each
child “is not an Indian child and no further notice is required under ICWA.”
On February 22, 2021, a combined six-month and 12-month review
hearing was held at which the court terminated reunification services, set a
section 366.26 hearing, and again concluded that ICWA did not apply to the
children.
A section 366.26 hearing was held on June 30, July 12, and August 4,
2021, at which hearing the court concluded that the beneficial relationship
exception to the termination of parental rights did not apply and terminated
parental rights, with adoption identified as the children’s permanent plan.
The court again found “ICWA does not apply.”
On August 16, mother filed a notice of appeal.
On February 22, 2022, we reversed the termination of parental rights,
and remanded for the juvenile court to conduct a new section 366.26 hearing
consistent with the standards set forth for application of the beneficial
relationship exception in Caden C., supra, 11 Cal.5th 614. (In re V.C.
(Feb. 22, 2022, A163417) [nonpub. opn.].)
On October 5, a new section 366.26 hearing was held, at which hearing
the juvenile court again terminated parental rights, found “ICWA does not
apply in this matter,” and identified adoption as the children’s permanent
plan.
Both parents filed notices of appeal. 2

2 On July 26, 2023, after this appeal was fully briefed, mother filed an

unopposed motion to take additional evidence on appeal pursuant to Code of
Civil Procedure section 909 and California Rules of Court, rule 8.252(c),
attaching a short declaration stating the she has “heard through my family
over the years that I am Native American through both sides of my family,”

3
 DISCUSSION
Parents’ only argument is that agency failed to comply with ICWA
because it was required to, but did not, ask “extended family members” about
the children’s potential Indian ancestry.3
Applicable Law
Parents’ argument is based on section 224.2, which provides:
“(a) The court, county welfare department, and the probation
department have an affirmative and continuing duty to inquire whether a
child for whom a petition under Section 300, 601, or 602 may be or has been
filed, is or may be an Indian child. The 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.
“(b) If a child is placed into the temporary custody of a county welfare
department pursuant to Section 306[4] or county probation department

including through her mother’s cousin, mother’s nephews, and paternal
grandfather, and stating that father also has Native American ancestry
though his maternal grandmother.
3 Because of the continuing duty imposed by ICWA and related state

law to inquire whether a child is an Indian child (In re Isaiah W. (2016)
1 Cal.5th 1, 10−11), our Supreme Court has held that a parent may challenge
a finding that ICWA is inapplicable in an appeal from a subsequent order,
even though the parent did not raise that issue in the trial court or in an
appeal from a previous order (id. at p. 6).
4
Section 306 provides:
“(a) Any social worker in a county welfare department, or in an Indian
tribe that has entered into an agreement pursuant to Section 10553.1 while
acting within the scope of his or her regular duties under the direction of the
juvenile court and pursuant to subdivision (b) of Section 272, may do all of
the following:

4
pursuant to Section 307, the county welfare department or county probation
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.
“(c) At the first appearance in court of each party, the court shall ask
each participant present in the hearing whether the participant knows or has
reason to know that the child is an Indian child. The court shall instruct the
parties to inform the court if they subsequently receive information that
provides reason to know the child is an Indian child.”
The ICWA Duty to Inquire of Extended Family Members
Applies Here
As noted, Z.C. was placed into protective custody pursuant to a search
and seizure warrant signed on November 26 and served on December 9. The

“(1) Receive and maintain, pending investigation, temporary custody of
a child who is described in Section 300, and who has been delivered by a
peace officer.
“(2) Take into and maintain temporary custody of, without a warrant, a
child who has been declared a dependent child of the juvenile court under
Section 300 or who the social worker has reasonable cause to believe is a
person described in subdivision (b) or (g) of Section 300, and the social worker
has reasonable cause to believe that the child has an immediate need for
medical care or is in immediate danger of physical or sexual abuse or the
physical environment poses an immediate threat to the child's health or
safety.
“(b) Upon receiving temporary custody of a child, the county welfare
department shall inquire pursuant to Section 224.2, whether the child is an
Indian child.”

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petition for Z.C. was filed on December 11. V.C. was placed into protective
custody on November 26. A petition for V.C. was filed on December 2. Thus,
both children were presumably taken into protective custody pursuant to
section 340, subdivision (b).5
Focusing on the introductory language in section 224.2,
subdivision (b)—“If a child is placed into the temporary custody of a county
welfare department pursuant to Section 306”—the agency argues that
because the minors were not placed into the temporary custody of the agency
without a warrant pursuant to section 306, the agency was not required by

5 Section 340 provides in relevant part: “(a) Whenever a petition has
been filed in the juvenile court alleging that a minor comes within Section
300 and praying for a hearing on that petition, or whenever any subsequent
petition has been filed praying for a hearing in the matter of the minor and it
appears to the court that the circumstances of his or her home environment
may endanger the health, person, or welfare of the minor, or whenever a
dependent minor has run away from his or her court-ordered placement, a
protective custody warrant may be issued immediately for the minor.
“(b) A protective custody warrant may be issued without filing a
petition under Section 300 if the court finds probable cause to support all of
the following:
“(1) The child is a person described in Section 300.
“(2) There is a substantial danger to the safety or to the physical or
emotional health of the child.
“(3) There are no reasonable means to protect the child's safety or
physical health without removal.
“(c) Any child taken into protective custody pursuant to this section
shall immediately be delivered to the social worker who shall investigate,
pursuant to Section 309, the facts and circumstances of the child and the
facts surrounding the child being taken into custody and attempt to maintain
the child with the child's family through the provision of services.”

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subdivision (b) to make an initial ICWA inquiry of “extended family
members.”
This language that begins section 224.2, subdivision (b) was addressed
in In re Adrian L. (2022) 86 Cal.App.5th 342 (Adrian L.), where the Second
District Court of Appeal found a failure to make ICWA inquiry of extended
family members harmless. (Id. at pp. 349–353.) In a concurring opinion,
Judge Kelley of the Los Angeles Superior Court, sitting by assignment,
explained that based on the language that begins subdivision (b) of section
224.2, he would have concluded that the agency did not have a duty to make
inquiry of extended family members at all. This was his explanation:
“Despite the large number of recent appeals based on DCFS’s failure to
make inquiries of ‘extended family members,’ no case appears to have
confronted the question of why the prefatory clause in section 224.2,
subdivision (b) should be interpreted as meaning something other than what
it plainly says—that the inquiry obligation expressed in this subdivision is
triggered when the child is ‘placed into the temporary custody of a county
welfare department pursuant to [s]ection 306.’ (Ibid.) [¶] . . . [¶]
“Placing a child into ‘temporary custody of a county welfare department
pursuant to [section] 306’ is fundamentally different from taking a child into
‘protective custody’ under section 340. Beyond the obvious feature that one
process requires a court order, and the other does not, these provisions are
found in entirely different articles of the juvenile law. The two provisions
also have different standards that must be met to justify removal. Section
306 requires ‘imminent physical damage or harm’ before a child may be
removed without a warrant (id., subd. (c)), but section 340 does not have such
a strict standard (id., subds. (a), (b)). Under section 340, a court may issue a
warrant without a prior filing of a section 300 petition where ‘[t]here is a

7
substantial danger to the safety or to the physical or emotional health of the
child.’ (§340, subd. (b)(2), italics added.) It thus requires neither imminent
nor physical harm. As discussed, post, this difference is significant under
federal ICWA law because a removal under section 306 is considered an
‘emergency removal’ under ICWA, but a removal pursuant to an order issued
under section 340 is not. This distinction illuminates why the legislative
choice to limit the scope of section 224.2, subdivision (b) to situations where a
child is placed in temporary custody of a county welfare agency pursuant to
section 306 aligns it with federal ICWA guidance.” (Adrian L., supra, at
pp. 356−357, fns. omitted (conc. opn. of Kelley, J.).)
Two recent decisions from Division Two of the Fourth District Court of
Appeal adopted the reasoning of Judge Kelley’s concurring opinion, holding
that the duty to inquire of “extended family members” is not triggered when
the children are taken into protective custody with a warrant pursuant to
section 340, but only if the children are taken into temporary custody under
section 306: In re Robert F. (2023) 90 Cal.App.5th 492, 500–504 (Robert F.)
and In re Ja. O. (2023) 91 Cal.App.5th 672, 677–678 (Ja. O.). On July 26,
2023, our Supreme Court granted review in both cases. (See In re Ja. O.
(July 26, 2023, S280572); In re Robert F. (July 26, 2023, S279743; review
granted and held for Ja. O.)
Both parents appear to accept the premise that inquiry of “extended
family members” is required only where the “child is placed into the
temporary custody of a county welfare department pursuant to Section 306,”
and argue that the children were placed into such temporary custody. We are
not persuaded to accept the parties’ premise, however, because we do not
agree that the language of section 224.2, subdivision (b) plainly limits the
inquiry described to situations where the children have been taken into

8
“temporary custody” pursuant to section 306—as held by a case from Division
Two of the Fourth District that declined to follow the holdings of their
colleagues in Robert F. and Ja. O.
On July 21, 2023, after briefing in this appeal was completed, Division
Two of the Fourth District filed In re Delila D. (2023) 93 Cal.App.5th 953
(Delila D.). There, in a 2–1 opinion, Justices Slough and Raphael declined to
follow Robert F. and Ja. O., and instead concluded “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.” (Id. at
p. 962.) Because “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.
concluded that “[t]he holding of Robert F. is, in our view, contrary to both the
letter and spirit of Assembly Bill [No.] 3176,” the legislation enacting
section 224.2. (Delia D., supra, 93 Cal.App.5th at p. 962.) Their reasoning
was as follows:
“Even if [Robert F.’s] conclusion that section 306 excludes removals by
protective custody warrant were correct, we would still disagree with its
conclusion that the duty described in section 224.2(b) does not apply once a
child initially removed by warrant is removed from parental custody at the
disposition hearing.
“First, section 224.2(b) does not state that the inquiry it describes
applies ‘only if’ a child is taken into temporary custody under section 306.
(See Adoption of Kelsey S. (1992) 1 Cal.4th 816, 827 [it is a ‘cardinal rule’ of
statutory interpretation that ‘courts may not add provisions to a statute’].)
Section 224.2(b) does not contain the word only or any other language
suggesting an intent to limit the inquiry it describes. And where, as here,
where [sic] remedial legislation is involved, we must interpret the statute

9
broadly to achieve its purpose. (See In re I.F. (2022) 77 Cal.App.5th 152, 163
[the affirmative and ongoing duty to inquire under California law serves a
‘remedial purpose’ requiring us to broadly construe state ICWA statutes]; see
also Los Angeles County Metropolitan Transportation Authority v. Alameda
Produce Market, LLC (2011) 52 Cal.4th 1100, 1107 [courts must construe
statutory provisions ‘in context, keeping in mind the statute’s nature and
obvious purposes’ (italics added)].)
“Here, the obvious purpose of Assembly Bill [No.] 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, Assembly Bill
[No.] 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.’ [(Stats. 2018, ch. 833 (Assembly Bill
No. 3176), § 5.)] 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.
“Second, [California Rules of Court,] rule 5.481 requires social workers
to make the inquiry described in section 224.2(b) any time the department is
‘seeking a foster-care placement, . . . termination of parental rights,
preadoptive placement, or adoption.’ ([See] rule 5.481(a)(1) [directing the
department, in such circumstances, to ask ‘extended family members [and]
others who have an interest in the child’ about possible Indian ancestry].)
Where, as here, the rule is not inconsistent with the statute, we are required
to follow it. (See R.R. v. Superior Court (2009) 180 Cal.App.4th 185, 205
[‘Rules of court have the force of law and are as binding as procedural

10
statutes as long as they are not inconsistent with statutory or constitutional
law’]; see also [In re] T.G. [(2020)] 58 Cal.App.5th [275,] 291 [concluding
rule 5.481 is ‘entitled to judicial deference’].)
“Third and perhaps most importantly, 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.
“For all these reasons, we conclude Robert F.’s interpretation of section
224.2(b) as ‘crafting [a] narrow inquiry duty’ that applies only to children
initially taken into temporary custody without a warrant contravenes the
plain language and obvious purpose of Assembly Bill [No.] 3176. (Robert F.,
supra, 90 Cal.App.5th at p. 503.) We hold instead that the Legislature
enacted section 224.2(b) to impose on departments a broad duty to inquire
that applies regardless of how a child is initially removed from home.”
(Delila D., supra, 93 Cal.App.5th at pp. 974–975.)6
Following supplemental briefing from the parties on Delila D., we write
to express agreement with Delila D. on this point, holding that the duty to
make ICWA inquiry of “extended family members” applies even if the
children here were not taken into “temporary custody” pursuant to
section 306.
We thus turn to the issue of prejudice.
The ICWA Error Was Not Harmless
The appellate courts are divided on what showing of prejudice warrants
reversal for ICWA inquiry errors, the varying standards for prejudice
including these four: (1) deficient inquiry necessarily infects the juvenile

6 Justice Douglas Miller, who had been on the panel in Robert F.,

dissented.

11
court’s ruling and reversal is automatic and required (“automatic reversal
rule”) (See, e.g., In re G.H. (2022) 84 Cal.App.5th 15, 32; In re A.R. (2022)
77 Cal.App.5th 197, 207; In re J.C. (2022) 77 Cal.App.5th 70, 80; In re
Antonio R. (2022) 76 Cal.App.5th 421, 432–437 (Antonio R.); In re Y.W. (2021)
70 Cal.App.5th 542, 556 (Y.W.)); (2) deficient inquiry is harmless unless the
record below demonstrates, or the parent on appeal makes an offer of proof or
other affirmative assertion of, Indian heritage (“presumptive affirmance
rule”) (In re A.C. (2021) 65 Cal.App.5th 1060, 1069); (3) a deficient inquiry
requires reversal where the record indicates that there was readily
obtainable information that was likely to bear meaningfully upon whether
the child is an Indian child (In re Benjamin M. (2021) 70 Cal.App.5th 735,
744 (Benjamin M.)); and (4) deficient inquiry is harmless unless the record
contains information suggesting a “reason to believe” the child is an Indian
child (In re Dezi C. (2022) 79 Cal.App.5th 769, 779, review granted Sept. 21,
2022, S275578 (Dezi C.)).
We weigh in on the issue, and begin by noting that we join with the
many other courts that have declined to apply the presumptive affirmance
rule, which has been rightly criticized. (See In re K.H. (2022) 84 Cal.App.5th
566, 612–614, citing In re Y.M. (2022) 82 Cal.App.5th 901, 913–915; Dezi C.,
supra, 79 Cal.App.5th at pp. 777–778; Benjamin M., supra, 70 Cal.App.5th at
pp. 743–744.) As explained in In re K.H., a presumptive affirmance rule
requiring a parent to demonstrate evidence in the record or make an offer on
appeal regarding possible Indian heritage would routinize consideration of
new evidence on appeal, which is generally disfavored. It would also shift the
burden of investigation onto parents in dependency proceedings and,
moreover, disregard the interests of the Native American tribes, because
prejudicially deficient inquiries will go uncorrected if an appealing parent is

12
unwilling or unable to make a meaningful proffer on appeal. (See In re K.H.,
supra, 84 Cal.App.5th at pp. 612–614 [and cases cited].)
We also decline to adopt the “reason to believe” approach in Dezi C. In
deeming an agency’s failure to conduct a proper inquiry into a dependent’s
Indian ancestry to be harmless unless the “record contains information
suggesting a reason to believe that the child may be an ‘Indian child’ within
the meaning of ICWA,” (Dezi C., supra, 79 Cal.App.5th at p. 779), the rule in
Dezi C. shifts the duty of developing information on Indian ancestry from the
agency to the parents. (See Benjamin M., supra, 70 Cal.App.5th at p. 743
[“Requiring a parent to prove that the missing information would have
demonstrated ‘reason to believe’ would effectively impose a duty on that
parent to search for evidence that the Legislature has imposed on only the
agency”].)
Additionally, section 224.2, subdivision (b) requires inquiry of more
than just the parents in order “to obtain information the parent may not
have” (Y.W., supra, 70 Cal.App.5th at p. 556), or who perhaps lack the
relevant information or possess only vague or ambiguous information.
(Antonio R., supra, 76 Cal.App.5th at p. 432 [noting reasons why parent
might incorrectly report no American Indian ancestry]; see generally In re
T.G. (2020) 58 Cal.App.5th 275, 289; In re S.R. (2021) 64 Cal.App.5th 303,
315–316.)
We adopt the standard of Benjamin M.: A finding that ICWA does not
apply cannot stand “where the record demonstrates that the agency has not
only failed in its duty of initial inquiry, but where the record indicates that
there was readily obtainable information that was likely to bear meaningfully
upon whether the child is an Indian child.” (Benjamin M., supra,
70 Cal.App.5th at p. 744.) And, we conclude, reversal is required under this

13
standard, because the record reveals numerous extended family members
who may have had information regarding the children’s potential Indian
ancestry. For example, the December 12, 2019 detention report indicated
that according to mother, her great uncle was “at [the] home with her and her
family,” and the December 23 jurisdiction and disposition report indicated
that parents identified the great uncle as one of their “support people.” And
according to notes from the Alameda Health System dated December 6, 2019,
mother stated that she had stable housing at the maternal grandfather’s
house and provided the address, adding that the maternal grandmother and
great uncle were “currently providing care” to the maternal grandfather. The
children were initially placed with the maternal second cousin, who later
became the prospective adoptive parent. On January 19, 2021, the agency
reported that at the home of the maternal second cousin, the children “get to
see their maternal aunt as well as other cousins and other extended family
members.” The agency does not contend that it could not have contacted any
of these extended family members to ask about Indian ancestry, or that it
made any attempt to do so.
In addition, as noted, mother has filed a motion to take additional
evidence on appeal, attaching her declaration stating that she has “heard
through my family over the years that I am Native American through both
sides of my family,” including through her mother’s cousin, mother’s
nephews, and paternal grandfather, and stating that father also has Native
American ancestry though his maternal grandmother. We grant this motion
for the limited purpose of considering the issue of prejudice. (See Dezi C.,
supra, 79 Cal.App.5th at p. 779 & fn. 4 [considering proffers by the appealing
parent is appropriate in assessing prejudice under ICWA].) Mother’s proffer
further supports our conclusion that the record here “indicates that there was

14
readily obtainable information that was likely to bear meaningfully upon
whether the child is an Indian child.” (Benjamin M., supra, 70 Cal.App.5th
at p. 744.)
DISPOSITION
The order terminating parental rights is conditionally reversed. The
matter is remanded with directions for the juvenile court to order the agency
to comply with the duty of initial ICWA inquiry (§ 224.2, subd. (b)) as to
available extended family members and, if applicable, the duty of further
inquiry (§ 224.2, subd. (e)) and the duty to provide notice to the pertinent
tribes (§ 224.3, subd. (a)). If the court determines ICWA does not apply, then
it shall immediately reinstate the order terminating parental rights. If the
court finds that ICWA applies, the court shall proceed in conformity with
ICWA and related California law. The court shall enter its findings on the
record as to whether ICWA applies and whether the agency complied with its
duties under the law.

15
 _________________________
Richman, J.

We concur:

_________________________
Stewart, P.J.

_________________________
Miller, J.

In re V.C. (A166527)

16
Trial Court: Alameda County Superior Court

Trial Judge: Honorable Ursula Jones Dickson;

Attorney for Plaintiff and Office of the County Counsel,
Respondent, Alameda County County of Alameda; Donna R.
Social Services Agency: Ziegler, County Counsel,
Samantha Stonework-Hand,
Senior Deputy County Counsel,
Josephine Miller Williams,
Associate County Counsel;

Attorney for Defendant and Christopher R. Booth, under
Appellant, John C.: appointment by the Court of
Appeal;

Attorney for Defendant and Gorman Law Office; Seth F.
Appellant Vanity L.: Gorman, under appointment by
the Court of Appeal.

17