Former W&I C §224.2 requires extended-family inquiry in all cases in which a child is placed into temporary custody, regardless of how the child is removed from the home…. . .

In reversal, the California Supreme Court held that the Second District erred by rejecting mother's argument that the San Bernardino County Children and Family Services has a duty to conduct extended-family inquiry under former W&I C §224.2 as to whether child was an "Indian" child under ICWA, regardless of whether child was removed from the home pursuant to warrant.

In October 2021, mother's five children were removed from their home pursuant to a protective order custody warrant under W&I C §340(b) and placed into temporary custody of the San Bernardino County Children and Family Services (the Department).

At the detention hearing, mother denied the children had Indian ancestry and reiterated this denial in an ICWA form. Father of the two youngest children also denied Indian ancestry at the detention hearing but checked a box on an ICWA form, noting "'One or more of my parents, grandparents, or other lineal ancestors is or was a member of a federally recognized tribe.'"

In August 2022, the juvenile court found ICWA did not apply, took jurisdiction over the children, removed them from parental custody, and ordered reunification services for mother. Mother appealed, arguing the Department failed to satisfy its duty of inquiry of extended family members pursuant to W&I C §224.2.

The Second District affirmed the juvenile court's order, concluding the extended-family inquiry duty did not apply where a child is taken into the Department's temporary custody after being removed pursuant to a warrant. Mother appealed, and the California Supreme Court granted review to resolve the conflict among the Courts of Appeal regarding their interpretation of W&I C §224.2.

After the high court granted review, the Legislature passed Assembly Bill 81 (AB 81), which amended W&I C §224.2 to add language specifying that the extended-family inquiry duty applies whenever a child is placed into a county welfare department's temporary custody, regardless of how the child is removed from the home.

On appeal to the high court, mother argued that the extended-family inquiry duty applies where a child was placed into temporary custody before AB 81 took effect, since precedent establishes that when a statutory amendment clarifies, rather than changes, existing law, the amendment applies to transactions predating its enactment. Although the Department agreed with mother's view of the status of the law, it disagreed that the AB 81 merely clarified W&I C §224.2. Instead, the Department argued AB 81 substantially changed existing law "'by adding an obligation to make an expansive initial inquiry in all cases, rather than in warrantless cases only.'" The California Supreme Court agreed with mother and reversed the Second District.

The high court began its analysis by describing the factors used to determine whether an amendment clarified or changed existing law. First, the court may consider whether the Legislature promptly reacted to the emergence of a novel question of statutory interpretation. If so, it is logical to regard the amendment as clarifying rather than changing the law. Second, "'where courts have not yet finally and conclusively interpreted a statute and are in the process of doing so, a declaration of a later Legislature as to what an earlier Legislature intended is entitled to consideration.'" Regarding this second factor, the justices added that although the declaration of the Legislature is entitled to due consideration, it is "'neither binding nor conclusive'" and it is the courts that must interpret the statute.

Plain language of the statute requires department to make an extended-family inquiry in every case. . .
With these legal principles in mind, the justices concluded the plain language of former W&I C §224.2 supports the interpretation that a county welfare department is required to conduct an extended-family inquiry in every case. For example, former W&I C §224.2 provides "'If a child is placed into the temporary custody of a county welfare department pursuant to Section 306 [setting forth warrantless removals]…the county welfare department…has a duty to inquire whether that child is an Indian child.'" Inquiry includes asking, among others, extended family members whether the child is or may be an Indian child. The Department argued, and some Courts of Appeal have concluded, that the phrase "'[i]f a child is placed into…temporary custody…pursuant to Section 306'" supports the reading that inquiry of extended family members is required only where a child is removed without a warrant. But as the justices noted, W&I C §306(a)(1) contains no language restricting its application only to warrantless removals.

Extrinsic sources support interpreting former statute broadly. . .
Notwithstanding their conclusion, the justices noted "we cannot conclusively say there is only one reasonable way to interpret the plain language of former section 224.2." For that reason, the justices turned to extrinsic sources to further support their conclusion that former W&I C §224.2 requires extended-family inquiry in all cases in which a child is placed into temporary custody, regardless of how the child is removed from the home. Turning first to public policy, the justices noted that ICWA and Cal-ICWA "'intended to protect Native American heritage, cultural connections between tribes and children of Native American ancestry, the best interests of Indian children, and the stability and security of Indian tribes.'" The justices added that in order to achieve these goals, courts must ensure compliance with ICWA early on in dependency proceedings.

The justices then turned to the legislative history of Assembly Bill 3176-the bill enacting former W&I C §224.2. The Legislature's statement of the bill's purpose was to "'increase tribes' opportunities to be involved in child custody cases involving Indian children.'" As a result, the justices determined that "interpreting former section 224.2 narrowly to exclude situations in which a child was removed from the home pursuant to a warrant would be contrary to the letter and spirit of ICWA and Assembly Bill 3176."

Since AB 81 clarified, rather than changed, the law, former W&I C §224.2 requires the Department to conduct an extended-family inquiry. Accordingly, the California Supreme Court reversed the judgment of the Second District and remanded the matter to the juvenile court for compliance with the inquiry requirements of the statute consistent with its opinion.