In re Joliene H. CA2/3

Filed 9/28/23 In re Joliene H. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

In re JOLIENE H., et. al., Persons B326604
Coming Under the Juvenile Court Law.
_____________________________________ (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 21CCJP01954A-D)
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

Plaintiff and Respondent,

v.
TERRILL H. et al.,

Defendants and Appellants.

APPEAL from an order of the Superior Court of
Los Angeles County, Stephen C. Marpet, Juvenile Court Referee.
Conditionally affirmed and remanded with directions.
Megan Turkat Schirn, under appointment by the Court of
Appeal, for Defendant and Appellant Terrill H.
Jesse McGowan, under appointment by the Court of
Appeal, for Defendant and Appellant Jessica R.
 Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and David Michael Miller, Deputy
County Counsel for Plaintiff and Respondent.

‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗

Jessica R. (mother) and Terrill H. (father) separately
appeal from an order terminating parental rights to their four
children under Welfare and Institutions Code section 366.26.1
Mother contends the court failed to comply with the Uniform
Child Custody Jurisdiction and Enforcement Act (UCCJEA, Fam.
Code, § 3400 et seq.). Mother and father both argue the Los
Angeles County Department of Children and Family Services
(DCFS) conducted an inadequate inquiry to determine whether
the children are or may be Indian children within the meaning of
the Indian Child Welfare Act (ICWA) and related state law. We
hold that the court impliedly found it had jurisdiction over this
proceeding and substantial evidence supports that finding.
However, we conclude the juvenile court prejudicially erred in
finding that DCFS conducted proper and adequate inquiry, and
that it exercised due diligence, in determining whether the
children are or may be Indian children. DCFS was required to
attempt to interview available maternal extended family
members and it failed to do so. We conditionally affirm the
juvenile court’s order and remand for further proceedings.

1 All further undesignated statutory references are to the
Welfare and Institutions Code.

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 FACTUAL AND PROCEDURAL BACKGROUND
Overview of dependency proceedings
The family consists of mother, father, Joliene H. (born
December 2013), Paul H. (born November 2015), Leilani H. (born
March 2017), and Joel H. (born June 2018).
The family came to DCFS’s attention in April 2021, when it
received a report that mother was on drugs, she had “socked” Joel
in the stomach, and she left the children with strangers. On
April 27, 2021, DCFS filed a petition under section 300, and the
children were detained. In August 2021, the court sustained
allegations in the petition that parents had a history of violent
altercations, mother had a history of substance abuse and father
failed to protect the children from it, mother left the children
with a maternal uncle without an appropriate plan for their care,
and father was unable to care for the children. The court ordered
family reunification services for parents. Parents, however,
failed to attend programs, to drug test, and to consistently visit
the children, who were eventually placed together with a
prospective adoptive parent. Parents’ reunification services were
terminated, and on January 24, 2023, the court terminated their
parental rights, finding that the children were adoptable.
Proceedings and evidence related to the UCCJEA
When DCFS received the report concerning the family in
April 2021, a social worker investigated the allegations. Mother
told the social worker that she had been in Los Angeles for two
months, living with three of her children with a maternal cousin,
while Joliene had been living with a maternal uncle for months.
Previously, mother had been in Arizona where maternal
grandmother and maternal aunt lived, although mother said she
did not get along with them. Mother left Arizona because she

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was unable to pay her rent. Mother also said that she had been
going from California to Arizona for the past three years and had
lived in Arizona for only a few months, returning to Los Angeles
when her family would not help her.
Maternal uncle reported that Joliene had been with him
since she was a baby. Maternal uncle’s partner reported that
mother and the children had lived on and off with them for the
last few years. Joliene was put in their care after mother and
father were involved in a domestic violence incident at a motel in
Montebello, California, where the family was living on November
9, 2019. The police report from the incident stated that mother
and father lived in Montebello and had California drivers’
licenses. In February 2020, mother took all four children to
Arizona, but father then took Joliene, Paul, and Joel from mother
in December 2020 and left them with a stranger in Pomona.
Joliene returned to maternal uncle’s home in January 2021,
where she remained until the dependency petition was filed.
Maternal grandmother told the social worker that mother
and the children had lived in Arizona, but maternal grandmother
had not spoken to mother since January or February 2021.
At the April 30, 2021 detention hearing, mother submitted
a mailing address notification form identifying an address in Los
Angeles. At the detention hearing, the court noted the UCCJEA
might apply because mother had previously resided in Arizona.
Mother was at the hearing and said she had lived her “whole life”
in California. However, she had moved to Mesa, Arizona around
March 2019 and returned to California at the beginning of

4
November 2020.2 She denied having any open child welfare cases
in Arizona or being investigated by social workers there. Mother
also said she had health insurance through LA Care. The court
ordered DCFS to reach out to its Arizona counterpart and to
update the court in its next report.
DCFS did so, and its Arizona counterpart said the family
had one “report” but no cases. The report was from December
2019 and concerned the domestic violence incident between
mother and father at the motel in Montebello, California. It was
believed that mother and three of her children were living with
maternal aunt in Arizona, while Joliene remained in California
with maternal uncle. General neglect allegations were
unsubstantiated, and the report was closed in February 2020.
Neither the court nor any party thereafter raised the
UCCJEA in the proceedings below.
ICWA Background
Mother reported that she was born in Los Angeles.
Although maternal grandmother raised her, mother and her
three sisters were also in foster care for a time. Mother explained
that “[h]er parents divorced, she grew up too fast, and was
traumatized,” and “[s]he had to take care of her siblings and took
the place of her parents.” Mother knew maternal grandfather’s
first name but did not know his full name and did not talk to

2 Mother and father had previously told the social worker
that mother and the children returned to Los Angeles from
Arizona in November or December 2020 and lived with father in
a house in either Montebello or Pico Rivera, California.

5
him.3 Mother told a social worker that she did not get along with
her family and she believed maternal grandmother and maternal
aunt made false reports about her to child protective services.
Father reported that he was born in Los Angeles, and
paternal grandfather, whose name he refused to provide, raised
him and his six siblings after his mother left them. Although
father initially provided what he claimed was paternal
grandmother’s address as his mailing address, he later told a
social worker he did not have any family members’ contact
information. The record does not indicate that DCFS ever
obtained the names of any paternal relatives or that social
workers had contact with any paternal relatives.
Mother and father submitted ICWA-020 forms denying
Indian ancestry. At the detention hearing in April 2021, the
court found it had no reason to believe the children were Indian
children and did not order notice to any tribe. Parents, their
counsel, and DCFS were ordered to inform the court of any new
information relating to possible ICWA status.
DISCUSSION
I. The UCCJEA
For the first time, mother contends on appeal that the court
failed to determine whether it had jurisdiction over this
dependency proceeding under the UCCJEA, that because such
jurisdiction is fundamental the order terminating parental rights
is null and void, and that remand is necessary so that the court

3 The record does, however, contain maternal grandfather’s
name, in connection with a child welfare referral from 2014. The
referral indicated father, mother, and maternal grandfather were
in the same house, and that maternal grandfather is a registered
sex offender.

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can conduct an evidentiary hearing. DCFS responds that mother
forfeited any issue under the UCCJEA by failing to object below,
and in any event, substantial evidence supports the court’s
implied finding that California has jurisdiction over this matter.
As we now explain, we conclude the court considered whether it
had jurisdiction under the UCCJEA and found it did. Further,
substantial evidence supports that jurisdictional finding.
California and Arizona have adopted the UCCJEA, an act
applicable in dependency proceedings that is the exclusive
method to decide the proper forum to adjudicate issues involving
a child subject to a sister-state custody order. (Fam. Code,
§ 3421, subd. (b); In re Cristian I. (2014) 224 Cal.App.4th 1088,
1096; In re J.W. (2020) 53 Cal.App.5th 347, 355 [every state
except Mass. has enacted UCCJEA].) The UCCJEA “is designed
to avoid jurisdictional conflicts between states and relitigation of
custody decisions, promote cooperation between states, and
facilitate enforcement of another state’s custody decrees.” (In re
R.L. (2016) 4 Cal.App.5th 125, 136.)
The UCCJEA is codified in the Family Code. (Fam. Code,
§ 3400 et seq.) There are four ways in which a California court
has jurisdiction.
First, California was the child’s home state when the
proceeding was commenced, or was the child’s home state within
six months before commencement of the proceeding and the child
is absent from this state but a parent or person acting as a parent
continues to live in this state. (Fam. Code, § 3421, subd. (a)(1).)
“Home state” means the state in which a child lived with a parent
for at least six consecutive months immediately before the
beginning of the child custody proceeding. (Fam. Code, § 3402,

7
subd. (g).) A period of temporary absence is part of the period.
(Ibid.)
Second, another state’s court does not have jurisdiction
under the first ground, or declines to exercise jurisdiction, and
the child or at least one parent acting as a parent has a
significant connection to California other than mere physical
presence and substantial evidence is available in California
concerning the child’s care, protection, training, and personal
relationships. (Fam. Code, § 3421, subd. (a)(2).)
Third, all courts having jurisdiction under the first two
grounds have declined to exercise jurisdiction because California
is the more appropriate forum. (Fam. Code, § 3421, subd. (a)(3).)
Fourth, no other state would have jurisdiction under the
first three grounds.4 (Fam. Code, § 3421, subd. (a)(4).)
Whether the UCCJEA implicates a court’s fundamental
jurisdiction is unsettled. (Compare In re J.W., supra, 53
Cal.App.5th at p. 367 [“UCCJEA does not govern fundamental
jurisdiction,” so father could not raise lack of UCCJEA
jurisdiction for first time on appeal]; with In re L.C. (2023) 90
Cal.App.5th 728, 737–738 [declining to decide whether UCCJEA
implicates fundamental jurisdiction but finding “other reasons
why” forfeiture doctrine should not apply]; see also In re
Marriage of Kent (2019) 35 Cal.App.5th 487, 491–492, 495–496
[stipulation to modify N.C. court’s custody and support order was
act in excess of jurisdiction under UCCJEA].)

4 The UCCJEA also permits courts to exercise temporary
emergency jurisdiction under specified circumstances. (Fam.
Code, § 3424, subd. (a).) Because we hold the court properly
exercised jurisdiction, we need not decide whether it had
temporary emergency jurisdiction.

8
 If, as mother contends, the UCCJEA implicates a court’s
fundamental jurisdiction, then any issue regarding it cannot be
forfeited and may be raised on appeal for the first time. (See
generally In re J.W., supra, 53 Cal.App.5th at p. 356.) We need
not reach this contention, because the court here did consider the
UCCJEA and impliedly found it had jurisdiction over the
dependency proceedings. This case is therefore unlike In re L.C.,
supra, 90 Cal.App.5th 728, which mother cites. In that case, the
record did not indicate that DCFS or the juvenile court, despite
knowing of the mother’s recent out-of-state residence and prior
Texas child welfare case, investigated that case or conducted a
jurisdictional analysis. (Id. at p. 734.) In contrast, the court here
raised the UCCJEA at the detention hearing, questioned mother
about where she lived, obtained confirmation that mother had
essentially lived her “whole life” in California and had been in
California for the preceding six months, and ordered DCFS to
follow up with its Arizona counterpart. DCFS complied with that
order and reported that no dependency-related matter had been
filed in Arizona. Although the court did not then expressly find it
had jurisdiction, it impliedly did so, as it continued to assert
jurisdiction over the family. (See In re Cristian I., supra, 224
Cal.App.4th at p. 1098 [flawed proceeding nonetheless
substantially complied with UCCJEA’s procedural requirements
and satisfied its goals].)
We therefore next consider whether substantial evidence
supports the court’s findings in determining jurisdiction.5 (See,

5 Some courts have independently reweighed jurisdictional
facts when reviewing findings regarding subject matter
jurisdiction. (See generally In re Aiden L. (2017) 16 Cal.App.5th

9
e.g., A.M. v. Superior Court (2021) 63 Cal.App.5th 343, 351; In re
Aiden L., supra, 16 Cal.App.5th at pp. 519–520.) Under that
standard of review, we resolve all conflicts in favor of the court’s
order and indulge reasonable inferences to uphold it. (Thompson
v. Asimos (2016) 6 Cal.App.5th 970, 981; Schneer v. Llaurado
(2015) 242 Cal.App.4th 1276, 1286.)
Substantial evidence establishes that California is the
children’s home state under section 3421, subdivision (a)(1). The
proceeding was commenced on April 27, 2021, when the
dependency petition was filed. (See Fam. Code, § 3402, subd. (e).)
The detention hearing took place three days later, on April 30,
2021. At the detention hearing, mother said she had been in
California since “the beginning of November” 2020. Therefore,
the family was in California for the six months preceding the
filing of the petition and the detention hearing in late April 2021,
perhaps less a couple of days.
Substantial evidence also established that mother and the
children were in California more than mother represented to the
social worker. She said they were in Arizona from March 2019 to
November 2020. However, mother, father, and the children were
living in a motel in Montebello, California in November 2019,
when the domestic violence incident occurred. Also, the family
was in California at some point in February 2020, because that is
when maternal uncle’s partner said mother took the children to
Arizona. Evidence also suggests that Joliene was not in Arizona
with mother at all times. That is, the Arizona social worker
reported that only three children were with mother in Arizona in
December 2019; Joliene was with maternal uncle in California.

508, 519–520.) Even if that standard applied, the outcome here
would be the same.

10
And maternal uncle and his partner confirmed that Joliene had
lived with them for significant periods of her life. This evidence
therefore shows that the family did not live in Arizona from
March 2019 to November 2020 but resided in California during at
least some of that time as well. Indeed, mother admitted that for
the past three years she has travelled between California and
Arizona and had lived in Arizona for only a few months. Thus
the evidence supports a finding that any absence from California
was merely temporary. (See Fam. Code, § 3402, subd. (g); see
generally In re Aiden L., supra, 16 Cal.App.5th at p. 518
[“temporary absence” requires considering parents’ intentions
and circumstances of departure from state they had resided].)
Otherwise, the evidence shows that the family has
significant connections to California. (See Fam. Code, § 3421,
subd. (a)(2).) Three of the four children were born in California;
only Paul was born in Arizona in 2015. Mother and father had
California drivers’ licenses; mother had California health
insurance; there is no evidence father has lived anywhere but
California; mother told the court she had lived her “whole life” in
California; and mother had extended family in California with
whom she and the children at times lived.
In contrast, the record shows that the family has few
significant connections to Arizona. There is no evidence father
has ever lived or even visited Arizona. Although maternal
grandmother and maternal aunt live there, maternal
grandmother reported that mother no longer speaks to her.
Mother has no stable housing in Arizona. Joliene would at times
remain in California while mother and the other three children
went to Arizona. And importantly, no custody proceedings
involving these children were filed in Arizona. Therefore, to the

11
extent the UCCJEA’s purpose to is avoid jurisdictional conflicts
between states and relitigation of custody decisions (In re R.L.,
supra, 4 Cal.App.5th at p. 136), it is unclear how transfer of the
proceedings to Arizona would further that purpose, and mother
does not explain how it would.
We therefore conclude that substantial evidence
overwhelmingly supports the court’s finding that California, not
Arizona, has jurisdiction over the children.
II. ICWA
Mother and father denied Indian heritage when DCFS
interviewed them and on their ICWA-020 forms. On the basis of
these denials, the court found it had no reason to know that the
children were Indian children. Parents did not challenge that
finding below. However, father, with mother joining, now
contends the court and DCFS failed to comply with their duty of
inquiry by failing to ask available maternal relatives about
possible Indian ancestry.6

6 Neither parent expressly argues on appeal that DCFS’s
ICWA inquiry was inadequate due to a failure to interview the
children’s extended family members from father’s side of the
family. Father’s briefing on appeal mentions only in passing that
DCFS did not interview any paternal relatives, but argues
remand is appropriate “because the Department’s failure to make
any inquiry of known maternal extended family members left the
juvenile court without sufficient evidence upon which to find that
the inquiry was proper, adequate, and duly diligent.” We note
the record does not indicate any paternal relatives were available
to be interviewed, and, further, father told social workers he had
no contact information for any of his family. (In re Q.M. (2022)
79 Cal.App.5th 1068, 1082 [agency cannot be expected to “intuit
the names of unidentified family members or to interview

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 A. Duty of Inquiry
Section 224.2 sets forth the duties of a county welfare
department and the juvenile court in determining whether a
child is or may be an Indian child. An “ ‘Indian child’ ” is “any
unmarried person who is under age eighteen and is either (a) a
member of an Indian tribe or (b) is eligible for membership in an
Indian tribe and is the biological child of a member of an Indian
tribe.” (25 U.S.C. § 1903(4); § 224.1, subd. (a).)
Section 224.2, subdivision (a), provides that both the court
and the Department have an “affirmative and continuing duty” to
inquire whether a child is or may be an Indian child, beginning
with the “initial contact,” which includes asking the party
reporting abuse or neglect if they have any information that the
child may be an Indian child. Under section 224.2,
subdivision (b), if a child is placed in the Department’s temporary
custody pursuant to section 306, the agency must inquire
whether the child is or may be an Indian child, by asking a
nonexclusive group that includes the child, the parents, and
extended family members.7 An “ ‘extended family member’ ” is an
adult who is the “Indian child’s grandparent, aunt or uncle,
brother or sister, brother-in-law or sister-in-law, niece or nephew,

individuals for whom no contact information has been
provided”].) With respect to father’s side of the family we find no
error in the juvenile court’s finding of adequate inquiry and due
diligence.

7 Under section 224.2, subdivisions (d) and (e), additional
inquiry or actions are required if there is reason to believe or
reason to know the child is an Indian child. This case concerns
only the initial inquiry required under section 224.2,
subdivision (b).

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first or second cousin or stepparent,” or an individual as
otherwise defined by an Indian child’s tribe. (25 U.S.C. § 1903(2);
§ 224.1, subd. (c).)
Section 224.2, subdivision (i)(2), provides that if “the court
makes a finding that proper and adequate further inquiry and
due diligence as required in this section have been conducted and
there is no reason to know whether the child is an Indian child,
the court may make a finding that [ICWA] does not apply to the
proceedings, subject to reversal based on sufficiency of the
evidence.” “On appeal, we review the juvenile court’s ICWA
findings for substantial evidence.” (In re D.S. (2020) 46
Cal.App.5th 1041, 1051; In re Josiah T. (2021) 71 Cal.App.5th
388, 401.)
B. Applicability of section 224.2, subdivision (b)
when the initial removal is pursuant to a
protective custody warrant
As a preliminary matter, mother notes that several courts
have recently found the section 224.2, subdivision (b) duty to
include extended family members in the initial ICWA inquiry
applies when there is a warrantless removal under section 306,
but not when, as here, DCFS obtains a protective custody
warrant pursuant to section 340 prior to removal. (See In re
Robert F. (2023) 90 Cal.App.5th 492 (Robert F.), review granted
July 26, 2023, S279743; In re Ja.O. (2023) 91 Cal.App.5th 672
(Ja.O.), review granted July 26, 2023, S280572; In re Adrian L.
(2022) 86 Cal.App.5th 342, 353–374 (Adrian L.) (conc. opn. of
Kelley, J.).) In its respondent’s brief, DCFS acknowledges Robert
F. but argues that irrespective of that court’s reasoning,
substantial evidence supports the juvenile court’s ICWA finding
in this case. There is currently a split of authority between the

14
Courts of Appeal on this issue and the question is pending before
the California Supreme Court.8

8 Section 306 provides, in relevant part: “(a) Any social
worker in a county welfare department . . . may . . . [¶]
(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.”
Section 340 provides, in relevant part: “(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.
“(d)(1) Nothing in this section is intended to limit any other
circumstance that permits a magistrate to issue a warrant for a

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 Relying on the plain language of the statute, as well as
legislative history, Robert F. and similar cases reason that
section 306, subdivision (a)(1) allows a social worker to “[r]eceive
and maintain” temporary custody of a child when a peace officer
has removed the child without a warrant pursuant to preceding
sections of the statute (§§ 305, 305.6), and subdivision (a)(2), by
its express language, applies only when the social worker takes a
child into temporary custody without a warrant. (Robert F.,
supra, 90 Cal.App.5th at pp. 500–501; Ja.O., supra, 91
Cal.App.5th at pp. 678, 680.) Neither provision references
children taken into temporary custody by means of a protective
custody warrant pursuant to section 340, and the threshold for
issuing such a warrant differs from the showing necessary for a
warrantless removal. The Robert F. line of cases thus interprets
section 224.2, subdivision (b)’s reference to temporary custody
pursuant to section 306 as a deliberate legislative choice to create
a broader duty of inquiry only in a narrow set of circumstances.
(Robert F., at pp. 501, 503, citing Adrian L., supra, 86
Cal.App.5th at pp. 353–374 (conc. opn. of Kelley, J.); Ja.O., at
p. 681.) They therefore conclude that, absent a warrantless
removal pursuant to section 306, subdivision (a), a child welfare
agency need only ask extended family members whether a child
is an Indian child as part of an initial inquiry if there are case-
specific circumstances that make such an inquiry necessary, such
as a family member volunteering that the family has Indian
ancestry. (Robert F., at p. 504.)

person. [¶] (2) Nothing in this section is intended to limit a
social worker from taking into and maintaining temporary
custody of a minor pursuant to paragraph (2) of subdivision (a) of
Section 306.”

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 Recently, however, the court in In re Delila D. (2023) 93
Cal.App.5th 953, review granted September 27, 2023, S281447
(Delila D.) disagreed.9 We find Delila D. persuasive. The Delila
D. court concluded section 224.2, subdivision (b)’s reference to
temporary custody under section 306 includes children “who,
though initially removed by protective custody warrant, are then
delivered or placed into the department’s custody pending a
detention hearing.” (Id. at p. 973.) The court reasoned that
“[w]hen a child is removed by warrant, the taking is authorized
by section 340, and the holding or maintaining in custody is
authorized by section 306, subdivision (a)(1). That is, section 340
provides that when a child is taken from home by means of a
warrant, the child must be ‘delivered to’ the social worker . . . .
Section 306, subdivision (a)(1), in turn, authorizes the social
worker to ‘receive’ the child and ‘maintain’ them in temporary
custody.” (Id. at p. 971.)
The court in Delila D., supra, 93 Cal.App.5th 953, further
noted that section 224.2, subdivision (b) applies if a child is
“ ‘placed into the temporary custody of a county welfare
department pursuant to section 306 . . . .’ ” (Id. at p. 966.) The
court reasoned this “word choice indicates the Legislature

9 Three additional courts have considered this issue, two in
opinions that are not yet final. In re Andres R. (2023) 94
Cal.App.5th 828 (Andres R.), is a direct response to, and rejection
of, Delila D. A concurring opinion by the author of Delila D.
agrees with the result in Andres R., but disagrees with the
rejection of the Delila D. analysis. In re V.C. (Sept. 6, 2023,
A166527) __ Cal.App.5th __ [2023 WL 5734521] and In re Jerry
R. (Sept. 11, 2023, F085850) __ Cal.App.5th __ [2023 WL
5843770], agree in whole or in part with Delila D., and reject the
reasoning of the Robert F. line of cases.

17
intended to cover children initially taken into custody by a police
officer (under § 305, 305.6, or 340) then delivered or placed into
the department’s temporary custody under section 306,
subdivision (a)(1). There is no practical difference between
children taken by warrant and those taken without a warrant,
and so there is no reason to distinguish between them for ICWA
inquiry purposes.” (Id. at p. 972.)
We find this analysis supported by section 306,
subdivision (b), which was added by Assembly Bill No. 3176
(2017–2018 Reg. Sess.) (A.B. 3176). The subdivision provides:
“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.” Consistent with the Delila D. court’s
interpretation of sections 306 and 340 as providing that once a
protective custody warrant is executed, law enforcement places
the removed child into the department’s temporary custody, the
inquiry provision of subdivision (b) applies without regard to how
the county welfare department has received temporary custody of
the child.
The Delila D. court additionally considered California
Rules of Court, rule 5.481, which requires social workers to
complete the section 224.2, subdivision (b) inquiry any time the
child welfare department is seeking a foster care placement.
“Where, as here, the rule is not inconsistent with the statute, we
are required to follow it.” (Delila D., supra, 93 Cal.App.5th at
p. 975.)10 We are further persuaded by the Delila D. court’s

10 The Andres R. court disapproved California Rules of Court,
rule 5.481 as inconsistent with legislative intent to the extent it
requires a child welfare agency to conduct the section 224.2,

18
reasoning 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.” (Ibid.)
Whether initiated by a protective custody warrant or
warrantless action by peace officer or social worker, once the
initial removal occurs, the child welfare agency’s other
obligations are the same. Under section 340, subdivision (c), any
child taken into protective custody pursuant to a warrant “shall
immediately be delivered to the social worker,” who then must
investigate the “facts and circumstances of the child and the facts
surrounding the child being taken into custody,” pursuant to
section 309, just as if the child was removed without a warrant
pursuant to section 306.11 The statute does not distinguish
between children in the agency’s custody pending a detention
hearing following a warrantless removal and children in the
agency’s custody pending a detention hearing following the
execution of a protective custody warrant. (See e.g., § 319.) As
the Delila D. court recognized, “because the department, not law

subdivision (b) inquiry outside of warrantless removal cases.
(Andres R., supra, 94 Cal.App.5th at p. 854.)

11 We agree with the concurring opinion in Andres R., that
viewing section 306, subdivision (a)(1) as encompassing a child
taken into custody under section 340 and delivered to the social
worker does not render section 340, subdivision (c) surplusage.
Instead, “the language and historical context of section 340
demonstrate that the reference to section 309 . . . functions as a
necessary cross-reference to the temporary custody and detention
provisions in article 7” of the Welfare and Institutions Code.
(Andres R., supra, 94 Cal.App.5th at p. 862, (conc. opn. of
Slough, J.).)

19
enforcement, is charged with conducting the ICWA investigation
in a dependency proceeding, it simply makes more sense that
section 224.2(b) would tie the initial inquiry to when the child is
delivered to the department under section 306, subdivision (a)(1)
and not when they are initially taken from home under
section 340. We therefore conclude that section 224.2(b)’s
reference to temporary custody ‘pursuant to [s]ection 306’ is
better read as including children who, though initially removed
by protective custody warrant, are then delivered or placed into
the department’s custody pending a detention hearing.” (Delila
D., supra, 93 Cal.App.5th at pp. 972–973.)12

12 The Robert F. cases and Delila D. all reviewed the
legislative history of A.B. 3176 and relevant federal guidelines,
but the courts drew disparate conclusions. The courts in Robert
F., Ja.O., and the concurring opinion in Adrian L., concluded the
legislative history and federal guidelines support a narrow
application of section 224.2, subdivision (b) to only those cases
where the “social worker is acting without court authorization.”
(Robert F., supra, 90 Cal.App.5th at p. 502.) In addition to
examining earlier versions of the language eventually enacted as
section 224.2, subdivision (b), these cases assert the statute
echoes a 2016 Bureau of Indian Affairs guideline recommending
that the State agency ask extended family whether a child is
“Tribal member” as part of the “ ‘emergency removal and
placement process,’ ” and not suggesting “that such inquiry is
required in any other circumstance.” (Adrian L., supra, 86
Cal.App.5th at p. 362 (conc. opn. of Kelley, J.), citing U.S. Dept. of
the Interior, Guidelines for Implementing the Indian Child
Welfare Act (Dec. 2016) p. 28.) The Delila D. court concluded
history relating to the origination of A.B. 3176, the “obvious
purpose of Assembly Bill 3176 . . . to expand the scope of the
initial inquiry beyond the parents,” and an analysis of the term

20
 Several courts have understood the initial inquiry
requirements added by A.B. 3176, including the need to inquire
of extended family members, as reflecting the imperative that
effort be expended at an early stage to identify Indian children,
and, further, that a broad inquiry may be necessary to identify
Indian children in light of the history of forced assimilation and
abusive child welfare practices that separated many Indian
children from their families and tribes. (See e.g., In re S.S.
(2023) 90 Cal.App.5th 694, 705–711 [detailing “long and
troubling” history of separation of Indian children from their
families and tribes and forced assimilation; asking relatives
about Indian ancestry can be “a vital link connecting Indian
children with their tribes, which helps preserve a future for
cultures the Legislature sought to protect”]; In re Ezequiel G.
(2022) 81 Cal.App.5th 984, 1002 (Ezequiel G.) [ICWA’s procedural
and substantive safeguards require that adequate ICWA inquiry
is done “at the earliest possible stage of a proceeding”]; In re T.G.
(2020) 58 Cal.App.5th 275, 287, 295 [imposition of duty to inquire
broader than duty to provide ICWA notice “is premised on the
commonsense understanding that, over time, Indian families,
particularly those living in major urban centers like Los Angeles,
may well have lost the ability to convey accurate information
regarding their tribal status”].)

“emergency removal” as relating to the juvenile court’s order
detaining a child at the detention hearing rather than the social
worker’s act of taking the child from the parents’ home, all leave
“no rational justification for interpreting section 224.2(b)’s
reference to section 306 as excluding children removed by
warrant.” (Delila D., supra, 93 Cal.App.5th at pp. 973, 974.)

21
 This is consistent with other changes to the law effected by
A.B. 3176, such as the higher standard a court must apply to
detain an Indian child at the detention hearing (§ 319, subd.(d)).
We agree with the concurring justice in Andres R., that “[t]he
need to determine whether a child who may be detained at the
initial petition hearing is an Indian child or falls under a tribe’s
exclusive jurisdiction is as urgent for children removed by
warrant as it is for children removed under exigent
circumstances.” (Andres R., supra, 94 Cal.App.5th at p. 863,
(conc. opn. of Slough, J.).) We further agree with the Delila D.
court that the “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 3176.” (Delila D.,
supra, 93 Cal.App.5th at p. 975, citing Robert F., supra, 90
Cal.App.5th at p. 503.) We thus conclude section 224.2,
subdivision (b) applied in this case.
C. DCFS inquiry was inadequate and prejudicial
It is undisputed that DCFS did not interview any extended
family members to determine whether the children are or may be
Indian children. In Ezequiel G., a majority of a panel of this court
concluded that under some circumstances, a juvenile court may
properly find the agency has conducted an adequate inquiry to
determine whether a child is or may be an Indian child, even if it
does not interview any extended family members. The Ezequiel
G. court explained that the focus of the juvenile court’s analysis is
not on the number of individuals interviewed, but on whether the
agency’s ICWA inquiry has yielded reliable information about a
child’s possible tribal affiliation. (Ezequiel G., supra, 81
Cal.App.5th at p. 1009.) The Ezequiel G. court also concluded the

22
juvenile court’s determination of whether there is reason to know
a child is an Indian child is reviewed for substantial evidence, but
the juvenile court’s finding under section 224.2, subdivision (i)(2)
as to whether a “ ‘proper and adequate further inquiry and due
diligence as required in this section have been conducted,’ ” is
reviewed for an abuse of discretion. (Id. at p. 1004.)
Other courts have concluded a juvenile court’s “no ICWA”
finding is necessarily unsupported by substantial evidence if the
agency failed to interview available extended family members,
but they have adopted several divergent standards for
determining whether that failure is prejudicial error requiring
reversal. These standards range from automatic reversal (In re
H.V. (2022) 75 Cal.App.5th 433, 438; In re Y.W. (2021) 70
Cal.App.5th 542, 556), to presumptive affirmance (In re A.C.
(2021) 65 Cal.App.5th 1060, 1065), with variations in between,
including the test set forth in In re Dezi C. (2022) 79 Cal.App.5th
769, 779, review granted Sept. 21, 2022, S275578 (Dezi C.).
The Dezi C. court, for example, concluded the proper
application of our state’s test for harmless error in the ICWA
inquiry context is that “an agency’s failure to conduct a proper
initial inquiry into a dependent child’s American Indian heritage
is harmless unless the record contains information suggesting a
reason to believe that the child may be an ‘Indian child’ within
the meaning of ICWA, such that the absence of further inquiry
was prejudicial to the juvenile court’s ICWA finding.” (Dezi C.,
supra, 79 Cal.App.5th at p. 779.) The proper standard for
assessing prejudicial error in ICWA inquiry cases is also an issue
pending before the California Supreme Court.
We need not discuss the divergent standards in detail here.
Excepting the presumptive affirmance approach, we conclude

23
that application of any of the other various tests employed by our
fellow appellate courts mandates a remand for further
proceedings in this case.13
During DCFS’s initial investigation, mother told a social
worker she was in foster care as a child, she took care of her
siblings, she did not get along with her family, and she was
suspicious of maternal grandmother and a maternal aunt
because she believed they had contacted child welfare services
and made false reports. Maternal grandmother said mother was
not speaking with her. Mother also claimed to not know
maternal grandfather’s full name and she did not speak to him.14

13 We decline to follow the presumptive affirmance approach
adopted by some courts, which finds no basis for reversal unless a
parent shows that, if asked, he or she would have claimed to have
Indian ancestry. (See In re A.C., supra, 65 Cal.App.5th at
pp. 1065, 1069.) As the court explained in Dezi C., “by focusing
on what a parent proffers on appeal,” the presumptive affirmance
approach “ignores that the juvenile court record may provide a
reason to believe that the juvenile court’s ICWA finding is
incorrect and that further inquiry is warranted. Where, for
instance, a parent is never asked about his or her American
Indian heritage or the parent’s answer is of less value because
the parent is adopted, the presumptive affirmance rule would
mandate affirmance in the absence of a proffer, even though, in
our view, there is on those facts reason to believe the child may
be an Indian child.” (Dezi C., supra, 79 Cal.App.5th at p. 785.)

14 We also note that at the outset of the investigation, mother
was actively using methamphetamines. Social workers
repeatedly reported that mother cried during initial interviews,
and she denied being addicted to drugs even after admitting that
she had used methamphetamines only days earlier. At one point

24
 Mother’s history as a dependent child, her indication that
her parents abandoned their parental role for at least some
period when she was a child, and her estrangement from her
family all cast significant doubt on the reliability of her reporting
when asked whether the children are or may be Indian children.
There is reason to believe her reporting regarding Indian
ancestry may not have been fully informed. (Dezi C., supra, 79
Cal.App.5th at p. 779.) Yet, DCFS was in contact with several
maternal family members, including maternal grandmother who,
presumably, would be likely to possess information helpful to
determine whether mother is a member of an Indian tribe, and
whether the children are or may be Indian children. (In re
Benjamin M. (2021) 70 Cal.App.5th 735, 744 [reversal necessary
“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”].)
Under these circumstances, substantial evidence did not
support the juvenile court finding that DCFS conducted an
adequate inquiry and exercised due diligence by interviewing
only mother to determine whether the children are or may be
Indian children through mother’s family, and we are unable to
find the error harmless. We therefore conditionally affirm the
juvenile court order, remanding the matter for further inquiry
and compliance with ICWA.

a social worker “was unable to determine whether mother was
having withdrawal symptoms, or whether the mother was having
a mental health crisis due to her behavior of crying excessively.”
The only interview DCFS conducted with mother related to
ICWA occurred during this initial period.

25
 DISPOSITION
The juvenile court’s order terminating parental rights is
conditionally affirmed. The case is remanded to the juvenile
court to order DCFS to immediately comply with the inquiry
provisions of Welfare and Institutions Code section 224.2 as to
available extended maternal family members. After ensuring
DCFS has complied with the inquiry, and, if applicable, notice
provisions of ICWA and related California law, the juvenile court
shall determine whether ICWA applies. If the court determines
ICWA does not apply, the order terminating parental rights shall
remain in effect. If the court determines ICWA does apply, it
shall vacate its order terminating parental rights and proceed
consistent with ICWA and related state law.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS

ADAMS, J.

I concur:

LAVIN, J.

26
EDMON, J., Concurring and Dissenting:
I agree that the juvenile court properly took jurisdiction over the
dependency proceedings under the Uniform Child Custody Jurisdiction and
Enforcement Act.
However, for the reasons I set forth in In re Ezequiel G. (2022) 81
Cal.App.5th 984, I disagree that the juvenile court’s finding under the Indian
Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.), that the children
were not Indian children, must be reversed. Rather, father and mother
denied Indian ancestry. Notably, neither mother nor father contends that
remand is necessary for further inquiry of any paternal extended relatives.
(Maj. opn., at p. 12, fn. 6.) And while mother has a troubled relationship with
maternal grandmother and was in foster care for a time, maternal
grandmother nonetheless raised mother. Mother was also in Arizona because
that was where maternal grandmother and other maternal relatives lived,
suggesting that any estrangement between mother and her maternal
relatives was not lifelong. Nor can any conclusion or inference be drawn from
mother’s methamphetamine use and her ability to be an accurate reporter
about her Indian ancestry. (Maj, opn., at p. 25, fn. 14.)
I would therefore affirm the order terminating parental rights.
Because I would affirm the order, I need not reach whether the Welfare
and Institutions Code section 224.2, subdivision (b), duty to include extended
family members in the initial ICWA inquiry applies only when there is a
warrantless removal under Welfare and Institutions Code section 306 and
not when removal is pursuant to a protective custody warrant under Welfare
and Institutions Code section 340. (Compare In re Robert F. (2023) 90
Cal.App.5th 492, rev. granted July 26, 2023, S279743, with In re Delila D.
(2023) 93 Cal.App.5th 953, rev. granted Sept. 27, 2023, S281447.)

EDMON, P. J.

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