No Warrant-Based Carveout: California Supreme Court Holds ICWA Extended-Family Initial Inquiry Duty Applies in All Temporary Custody Cases, and AB 81 Is a Clarifying Amendment (In re Ja.O.)

No Warrant-Based Carveout: California Supreme Court Holds ICWA Extended-Family Initial Inquiry Duty Applies in All Temporary Custody Cases, and AB 81 Is a Clarifying Amendment (In re Ja.O.)

Introduction

In re Ja.O. resolves a persistent split among California Courts of Appeal about the scope of a county welfare department’s initial duty of inquiry under California’s Indian Child Welfare Act analogue (ICWA/Cal-ICWA) in juvenile dependency proceedings. The central question: Must a county welfare department ask “extended family members” and other knowledgeable persons about a child’s potential Indian status whenever the child is placed in the department’s temporary custody—including when the child was first removed from the home pursuant to a protective custody warrant under Welfare and Institutions Code section 340—or does that extended-family inquiry duty arise only when the child was removed without a warrant (i.e., under section 306)?

Justice Jenkins, writing for the Court (Chief Justice Guerrero and Justices Corrigan, Groban, and Evans concurring), holds that the extended-family inquiry duty existed in all temporary custody placements under former section 224.2, subdivision (b), including warrant removals, even before the Legislature enacted Assembly Bill No. 81 (2023–2024 Reg. Sess.) (AB 81) to make that point explicit. The Court reverses the Court of Appeal, which had limited the duty to warrantless removals, and remands for compliance with the expanded inquiry.

Justice Liu (joined by Justice Kruger) concurs fully in the holding and principal reasoning, but writes separately to caution against relying on post-enactment legislative “clarifications” as an interpretive aid—emphasizing separation of powers and the limited utility of post-enactment legislative history.

Background and Parties

In October 2021, San Bernardino County Children and Family Services (the Department) obtained a protective custody warrant under section 340 to remove five children from the home of A.C. (Mother). The children were then placed into the Department’s temporary custody. Mother denied Indian ancestry in court and on the ICWA form. R.O., the father of the two youngest children (Ja.O. and Je.O.), denied Indian ancestry orally but checked on his ICWA form that a parent, grandparent, or other lineal ancestor was or had been a tribal member. In August 2022, after a contested hearing, the juvenile court found ICWA inapplicable, exercised jurisdiction, removed the children from parental custody, and ordered reunification services.

On appeal, Mother argued the Department failed its “extended family” inquiry duties under former Welfare and Institutions Code section 224.2(b), because—despite knowing of numerous relatives and close family friends—the Department asked only one such person about Indian ancestry. The Court of Appeal affirmed, holding that former section 224.2(b) required extended-family inquiries only when a child was placed into temporary custody after a warrantless removal under section 306; since these children were removed by warrant under section 340, the appellate court concluded the extended-family inquiry duty did not apply.

Summary of the Opinion

  • The Supreme Court holds that under former section 224.2(b) the county welfare department’s extended-family inquiry duty applied whenever a child was placed into the department’s temporary custody, regardless of whether the child was removed with a warrant under section 340 or without a warrant under section 306.
  • AB 81 (effective Sept. 7, 2024) amended section 224.2 to expressly state that the duty applies in all temporary custody placements, including when a child is initially taken into protective custody under a section 340 warrant. The Court concludes AB 81 clarified, rather than changed, existing law.
  • Because former section 224.2 already imposed the extended-family inquiry duty in warrant cases, the Department’s narrower reading was incorrect. The Court reverses and remands for compliance with section 224.2’s inquiry requirements. If ICWA still does not apply after proper inquiry, the prior jurisdiction and disposition order shall be reinstated; if ICWA applies, the juvenile court must proceed accordingly.

Legal Framework

ICWA (25 U.S.C. § 1901 et seq.) and California’s implementing statutes aim to protect Indian children, tribes, and families by ensuring early identification of a child’s possible Indian status and prompt notice and involvement of tribes. California imposes an “affirmative and continuing duty to inquire” whether a child “is or may be an Indian child,” beginning at first contact for the agency and the first hearing for the court. The initial inquiry includes asking parents, Indian custodians, extended family members, and others who may have information about possible Indian ancestry. See former Welf. & Inst. Code § 224.2 and, as amended by AB 81 (Stats. 2024, ch. 656), the current § 224.2.

Key statutes:

  • Section 224.2 (former and current): Defines the initial inquiry duty of the court and the county welfare department. AB 81 expressly includes children taken into protective custody via warrant under section 340.
  • Section 306: Authorizes county social workers to receive and maintain temporary custody of children delivered by a peace officer (subd. (a)(1)) and to take into and maintain temporary custody without a warrant under specified conditions (subd. (a)(2)).
  • Section 340: Authorizes issuance of protective custody warrants and requires that a child taken into protective custody be delivered to a social worker who must investigate and attempt to maintain the child with family through services.

Analysis

1) The Split in the Courts of Appeal and Precedents Cited

The appellate courts had diverged on the scope of the extended-family inquiry duty under former section 224.2(b):

  • Narrow view (warrantless-only):
    • In re Ja.O. (2023) 91 Cal.App.5th 672: Duty applies only when a child is placed into temporary custody after a warrantless removal under section 306.
    • In re Robert F. (2023) 90 Cal.App.5th 492, review granted S279743: Same approach.
    • Concurring opinion in In re Adrian L. (2022) 86 Cal.App.5th 342, 353 (Kelley, J., conc.): Suggested the same restrictive reading.
    • In re Andres R. (2023) 94 Cal.App.5th 828: Emphasized that section 340 speaks to “protective custody,” while section 306(a)(1) speaks to “temporary custody,” and read that distinction to limit the extended-family inquiry.
  • Broad view (all temporary custody):
    • In re Delila D. (2023) 93 Cal.App.5th 953, review granted S281447: The duty arises whenever a child is placed into temporary custody, whether removed with a warrant (§ 340) or without a warrant (§§ 305, 305.6, 306).
    • In re Samantha F. (2024) 99 Cal.App.5th 1062: Agreed with Delila D. (later disapproved on an unrelated point by In re Dezi C.).

The Supreme Court in In re Dezi C. (2024) 16 Cal.5th (see pp. 1125, 1141, 1152 n.18 as cited) addressed ICWA-related error and prejudice standards, not the precise statutory scope issue here, but the Court’s discussion contextualizes the remedial goals and the importance of early and accurate inquiry.

2) Textual Reading of Former Section 224.2 and Related Statutes

The Court undertakes a detailed textual analysis. Former section 224.2(b) tied the extended-family inquiry duty to when a child “is placed into the temporary custody of a county welfare department pursuant to Section 306.” The narrow view assumed this meant only warrantless removals under section 306(a)(2). The Supreme Court disagrees for two reasons:

  • Section 306(a)(1) has broader reach: It authorizes social workers to “receive and maintain” temporary custody of a child “delivered by a peace officer” and does not limit this to warrantless situations. Children removed via a section 340 warrant are, by statute, “delivered” to a social worker, who then “receives and maintains” temporary custody under section 306(a)(1). The authorizing path is thus: removal with warrant (section 340) → delivery to social worker → temporary custody under section 306(a)(1).
  • Placement, not manner of removal, triggers the duty: Former section 224.2(b) keys the inquiry duty to the child’s placement “into the temporary custody” of the department—not to the method of removal from the home. This reading sensibly assigns the duty to the entity responsible for ICWA investigation—the county welfare department—regardless of whether removal was with or without a warrant.

The Court acknowledges that other appellate readings (e.g., Andres R.) were not frivolous, given the different labels (protective vs. temporary custody). But the Court finds the broader reading more persuasive and more consistent with the statutory structure and function.

3) Avoiding an Incomplete or Illogical Scheme

The narrow view creates a statutory gap: it implies a second, “narrower” agency inquiry in warrant cases without identifying where that narrower duty is spelled out. Some opinions looked to former section 224.2(a) (asking the reporter of abuse), or to the court’s duty at first appearance under former section 224.2(c), but neither provision defines a comprehensive agency duty in warrant cases. Former section 224.2(c) is expressly a judicial, not an agency, duty. And former section 224.2(a) employs “including” (a term of enlargement, not limitation), not a restrictive list of interviewees. The Court thus rejects a bifurcated regime that turns on a procedural happenstance—the presence or absence of a warrant—which bears no relation to whether a child may be an Indian child.

4) Extrinsic Sources: ICWA’s Remedial Purpose, Federal Guidance, and AB 3176

Because the text could admit more than one reading, the Court also considers extrinsic sources. ICWA and Cal-ICWA are remedial statutes designed to minimize family separation, maximize early tribal engagement, and stabilize placements; therefore, they should be construed broadly to promote their objectives. Federal regulations (25 C.F.R. Part 23) and the Bureau of Indian Affairs (BIA) Guidelines urge early inquiry in “emergency or voluntary or involuntary” custody proceedings alike and warn that tardy inquiry can precipitate significant delays and redo of proceedings—contrary to children’s and tribes’ best interests.

California’s 2018 Assembly Bill 3176, which enacted former section 224.2, sought to conform state law to the 2016 federal regulations and emphasized early, robust inquiry at first contact. Legislative materials underscored giving tribes greater opportunities to be involved from the outset. Nothing in that history suggests the Legislature intended to limit extended-family inquiry to warrantless removals.

5) Assembly Bill 81 as a Clarifying Amendment

After the Supreme Court granted review, AB 81 amended section 224.2 to explicitly cover children initially taken into protective custody by a section 340 warrant, thereby removing any textual ambiguity going forward. The Department agreed that the current statute imposes “an extensive initial inquiry in all cases,” not only warrantless ones.

Crucially, the Supreme Court holds that AB 81 clarified existing law rather than changed it. Applying settled principles of statutory construction, the Court reasons that the “true meaning” of former section 224.2 already encompassed warrant removals via the operation of section 306(a)(1); AB 81 simply made that meaning express. On that understanding, the clarified duty applies in pre-AB 81 cases because the law’s meaning was always the same.

6) The Concurring Opinion’s Caution on Post-Enactment Legislative Statements

Justice Liu (joined by Justice Kruger) agrees with the Court’s interpretation and results but cautions against invoking post-enactment legislative statements (e.g., Western Security Bank and Carter) as authoritative evidence of earlier legislative intent. He labels that discussion dicta here because the majority did not ultimately rely on such statements to decide the case. The concurrence emphasizes separation-of-powers: courts—not later legislatures—conclusively determine the meaning of extant statutes, and post-enactment legislative history is generally a hazardous guide to prior legislative will.

Impact and Practical Implications

Uniform Statewide Rule for All Cases, Including Pre-AB 81

This opinion definitively eliminates the warrant-based carveout. County welfare departments must conduct an extended-family inquiry whenever a child is placed in their temporary custody, whether removal from the home was with a warrant (§ 340) or without (§§ 305, 305.6, 306(a)(2)). Because AB 81 is deemed clarifying, this duty applies to pre-September 7, 2024 placements, including legacy and pending cases on direct review.

Conforming Record-Making and Early Outreach

Agencies must:

  • Inquire of parents, legal guardians, Indian custodians (if any), extended family members, others with an interest in the child, and the reporting party about whether the child is or may be an Indian child.
  • Document all inquiries and responses, including the identities of persons asked, the dates and methods of contact, and the substance of information received.
  • Promptly notify tribes when there is “reason to know” or when further inquiry is required, consistent with ICWA and Cal-ICWA.

Early, thorough inquiry reduces the risk of later reversals or delays if a tribe later confirms eligibility or membership.

Alignment with In re Dezi C. on Remedies and Prejudice

In re Dezi C. established how courts assess prejudice for ICWA inquiry errors. In re Ja.O. complements Dezi C. by defining the scope of the initial inquiry duty. Together, they channel trial courts and agencies toward early, comprehensive inquiry and disciplined record-making, while providing appellate courts a consistent framework to evaluate alleged errors.

Effect on Prior Appellate Decisions

This decision rejects the narrow reading adopted in In re Ja.O. (2023) and Robert F. (review granted), and embraces the approach of Delila D. and Samantha F. (except where Samantha F. was disapproved on another ground by Dezi C.). Andres R.’s semantic distinction between “protective custody” (warrant) and “temporary custody” (department) no longer limits inquiry duties.

Complex Concepts Simplified

  • Initial duty of inquiry: The obligation—beginning at first agency contact and the first court hearing—to ask specified people whether a child is, or may be, an Indian child.
  • Extended-family inquiry duty: A key part of the initial duty requiring agencies to ask “extended family members” (e.g., grandparents, aunts/uncles, siblings aged 18+, other kin) and others with an interest in the child about possible Indian ancestry.
  • Temporary custody (agency): Custody held by the county welfare department after a child is delivered (by a peace officer or social worker) pending investigation; it follows removals both with a warrant (§ 340) and without a warrant (§§ 305, 305.6, 306(a)(2)).
  • Protective custody (warrant): The status when a child is removed under a court-issued protective custody warrant (section 340). The child is then “delivered” to a social worker, who “receives and maintains” temporary custody under section 306(a)(1).
  • Clarifying amendment vs. change in law: A clarifying amendment makes explicit what the statute already meant; a change in law revises prior meaning. The Court deems AB 81 a clarifying amendment, so its articulation of the duty reflects what former section 224.2 already required.
  • Reason to know: If information suggests the child may be an Indian child, ICWA’s notice and inquiry obligations escalate; agencies should promptly contact potentially relevant tribes.

Practical Guidance and Compliance Checklist

  • At first contact and upon placement into temporary custody, the agency should:
    • Identify and contact parents, legal guardians, Indian custodians.
    • Identify and contact extended family members on both maternal and paternal sides (including relatives of half-siblings, where relevant).
    • Ask the reporting party and “others who have an interest” in the child (e.g., caregivers, close family friends) whether the child is, or may be, an Indian child.
    • Document all contacts, attempts, and responses comprehensively.
    • If any information suggests possible tribal ties, promptly undertake “further inquiry” and provide notice to potentially relevant tribes as required.
  • Courts should:
    • At the first hearing and at first appearances of all parties and interested persons, ask the required ICWA questions and direct parties to relay any new information.
    • Ensure the agency’s record of initial inquiry is complete and adequate before making an ICWA inapplicability finding.

Conclusion

In re Ja.O. supplies a clear, uniform rule: the county welfare department’s duty to conduct an extended-family initial inquiry applies in every case where a child is placed into the department’s temporary custody, without regard to whether the initial removal was with or without a warrant. The Court reads former section 224.2, section 306, and section 340 together to tie the duty to agency custody rather than to the mode of removal. It further holds that AB 81’s amendments are clarifying rather than transformative—meaning this rule governs pre-AB 81 cases as well.

The decision advances ICWA’s core purposes: early identification, early tribal engagement, and stable placements for Indian children. It settles a conflict among the Courts of Appeal, aligns state practice with federal guidance, and provides practical direction to agencies and courts on the scope and timing of the initial inquiry. On remand, and in future cases, courts must ensure a fulsome record of inquiry before concluding ICWA does not apply; if it does, courts must proceed in conformity with ICWA and California law.

Case Details

Year: 2025
Court: Supreme Court of California

Comments