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Court of Appeal
No Need to Inquire As to Indian Ancestry of Child Taken Into Protected Custody Under Warrant
By a MetNews Staff Writer
Div. Two of the Fourth District Court of Appeal yesterday added to the burgeoning case law relating to the obligation of child-welfare agencies to make an adequate inquiry as to possible Indian heritage of a dependent child, holding, in a case with a different twist, that no inquiry need be made where the child is removed from the home pursuant to a protective custody warrant.
Rebuffing the contention of a mother that Riverside Superior Court Judge Michael J. Rushton erred in severing her parental ties to her son, Robert F., because the county’s Department of Public Social Services (“DPSS”) had failed to ask extended family members if the boy has native American ancestry as required by Welfare & Institutions Code §224.2(b), Justice Frank J. Menetrez declared that section to be inapplicable.
The DPSS had reason to believe that Robert, age 9, was being sexually abused by his father. It could have, but did not, proceed under Welfare & Institutions Code §306(a)(2) which authorizes a social worker to “[t]ake into and maintain temporary custody of, without a warrant, a minor” who is believed to be a dependent child and who “is in immediate danger of physical or sexual abuse.”
Instead, a warrant was obtained pursuant to §340.
“That difference matters because the statutory provision on which Mother relies says that it matters,” Menetrez wrote.
Sec. 224.2(b) provides:
“If a child is placed into the temporary custody of a county welfare department pursuant to Section 306 or county probation department 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.”
That section is intended to implement the federal Indian Child Welfare Act of 1978.
Menetrez declared:
“Subdivision (b) of section 224.2 requires a county welfare department to ask extended family members about a child’s Indian status only if the department has taken the child into temporary custody under section 306. Because section 306 played no role in Robert’s removal, subdivision (b) of section 224.2 does not apply.”
The case is In re Robert F., E080073.
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