1

Filed 8/6/12

IN THE SUPREME COURT OF CALIFORNIA

In re W.B., JR., a Person Coming )

Under the Juvenile Court Law. )

___________________________________ )

)

THE PEOPLE, )

) S181638

Plaintiff and Respondent, )

) Ct.App. 4/2 E047368

v. )

) Riverside County

W.B., JR., ) (Super. Ct. No. RIJ114127)

)

Defendant and Appellant. )

____________________________________)

Passed in 1978, the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) 

(ICWA, or the Act) formalizes federal policy relating to the placement of Indian 

children outside the family home. State courts presiding over adoption, 

guardianship, and dependency matters have become familiar with the many 

requirements of this federal law. Historically, however, ICWA provisions have 

not been applied in the juvenile delinquency context because ICWA includes an 

express exemption for placements “based upon an act which, if committed by an 

adult, would be deemed a crime.” (25 U.S.C. § 1903(1).)

The minor argues state legislation has expanded ICWA to delinquency 

proceedings under Welfare and Institutions Code section 602.

1 The Courts of 

Appeal have considered the question with varying results. Here, we determine the 

 

1 All California statutory references are to the Welfare and Institutions Code.
2

federally required scope of ICWA in juvenile delinquency proceedings and 

whether our Legislature has expanded those requirements. Consistent with the 

federal statutes, we hold that California law requires the court to inquire about a 

child‟s Indian status at the outset of all juvenile proceedings, but that ICWA‟s

additional procedures are not required in most delinquency cases. A delinquency 

court must ensure that notice is given and other ICWA procedures are complied 

with only when (1) exercising “dual status” jurisdiction over an Indian child (see 

post, at pp. 9-11); (2) placing an Indian child outside the family home for 

committing a “status offense” (§§ 601-602; see post, at p. 5); or (3) placing an 

Indian child initially detained for “criminal conduct” (§ 602; see post, at pp. 5-6)

outside the family home for reasons based entirely on harmful conditions in the

home. In this narrow third category, ICWA notice is required when the 

delinquency court sets a permanency planning hearing to terminate parental rights, 

or when the court contemplates ordering the ward placed in foster care and 

announces on the record that the placement is based entirely on abuse or neglect in 

the family home and not on the ward‟s delinquent conduct. Without a clear 

announcement from the court to the contrary, it will be presumed that a placement 

of a section 602 ward is based on the ward‟s delinquent conduct, rather than 

conditions in the home, and thus not subject to ICWA.

I. BACKGROUND

The minor, W.B., Jr. (W.B.), has been the subject of several delinquency 

petitions. He was referred to probation in 2003 and 2006 on allegations of felony 

burglary and robbery, but these matters were closed for lack of evidence. Referred 

to diversion in November 2006 for possessing marijuana on school grounds, he 

failed to complete the program. On March 27, 2007, shortly before his 15th 

birthday, a section 602 petition alleged he committed felony burglary and receipt 

of stolen property. On May 3, 2007, a second section 602 petition alleged he 

committed battery with serious bodily injury. On May 23, 2007, a third

section 602 petition alleged residential burglary. At a combined hearing, after 
3

W.B. admitted the battery and one burglary allegation, he was declared a ward of 

the juvenile court. The court ordered that he be placed outside the home. The 

court later reconsidered this order, released him to his mother, and directed that

both participate in the Wraparound Program.2

In June 2008, another section 602 petition was filed alleging robbery. At a 

contested jurisdiction hearing, the victim testified that as he was leaving school 

W.B. approached from behind and hit him in the jaw, causing him to drop his 

cellular phone. A boy with W.B. picked up the phone, and the two ran off with it. 

The court found the allegation true and continued the minor as a ward. The 

probation officer‟s dispositional report noted that “ICWA may apply” because 

W.B.‟s mother had reported possible Cherokee ancestry. There was no history of 

physical, sexual, or emotional abuse. Although the probation department 

recommended that he continue on home supervision and in the Wraparound 

Program, the People urged a placement outside the home because W.B. had not 

“learned to appreciate the seriousness of his conduct.” Following the probation 

department‟s recommendation “with some misgivings,” the court released him to 

his mother‟s custody and ordered continued participation in the Wraparound 

Program. 

On October 14, 2008, just two months after disposition of the robbery case, 

a subsequent 602 petition was filed alleging residential burglary. W.B. and two 

others broke into a home through a sliding glass door and stole a number of items. 

The court found the burglary allegation true and set the maximum confinement 

time at six years. The probation officer‟s report once again stated that “ICWA 

may apply” because W.B.‟s mother had reported Cherokee ancestry. No history 

 

2 As the Court of Appeal below noted, the Wraparound service program was 

started in 1997 to provide “family-based service alternatives to group home care 

using intensive, individualized services . . . . The target population for the 

program is children in or at risk of placement in group homes . . . . (State Dept. of 

Social Services Web site <http://www.childsworld.ca.gov/PG1320.htm> [as of 

Jan. 20, 2010].)” 
4

of abuse was reported, and the child welfare agency confirmed that it had no 

active dependency case involving the family. 

The probation officer reported that the county‟s interagency placement 

committee (CIPC) unanimously recommended that W.B. be placed in foster care. 

The committee believed his treatment needs, which included “anger management, 

victim awareness, [and] impulse control,” would be best met in a placement 

program. Although he had appeared to be making progress at home, he had 

continued to commit criminal acts and posed a threat to the community‟s safety. 

The probation department endorsed the CIPC recommendation. The court ordered 

placement in a foster care facility and directed W.B. to comply with terms of 

probation. He would be returned to his mother‟s custody upon successful 

completion of the placement. The aggregate term of potential confinement was

eight years eight months.

On appeal, W.B. argued the dispositional order placing him in foster care 

had to be reversed because the juvenile court had failed to comply with the notice 

requirements of ICWA. The Court of Appeal disagreed, holding notice was not 

required because federal law specifically excludes delinquency cases from ICWA, 

and any interpretation of California law that would expand ICWA‟s application to 

delinquencies would be invalid under federal preemption principles. We granted 

review.

II. DISCUSSION

A. Overview of California’s Juvenile Court Law

In California, the juvenile court‟s jurisdiction over a minor can be invoked 

in two ways: (1) by a dependency petition (§ 300), which alleges the child‟s home 

is unfit due to parental abuse or neglect; or (2) by a delinquency petition, which 

accuses the child of either disobedience or truancy (§ 601) or the violation of a law 

that defines a crime (§ 602). The terms “delinquency” and “status offense” have 

been employed somewhat loosely in various contexts. Before beginning our 
5

analysis, it is useful to clarify the definitions of these terms and explain how they 

fit into the statutory framework.

Allegations that a minor refuses to obey orders of a parent or guardian, is 

beyond parental control, violates age-based curfew ordinances, or is truant or 

disobedient in school, must be brought in a petition filed under section 601. 

(§ 601, subd. (a).) These allegations, which are specifically delineated in 

section 601, are commonly called “status offenses” because they address conduct 

that is not criminal but is nevertheless subject to punishment because of the 

offender‟s status as a person under age 18. (See In re Lucas (2004) 33 Cal.4th 

682, 731; R.R. v. Superior Court (2009) 180 Cal.App.4th 185, 198.) Strictly 

speaking, “[a]n adjudication under section 601 neither requires nor implies a 

finding of „delinquency.‟ ” (In re Bettye K. (1991) 234 Cal.App.3d 143, 151.) 

Section 601 allegations are not the only status offenses considered by the juvenile 

court, however.

Section 602 confers broad juvenile court jurisdiction over allegations that 

the minor‟s conduct “violates any law.” (§ 602, subd. (a).) Some penal statutes 

proscribe conduct only when it is committed by a minor. For example, although 

an adult may legally consume alcohol, underage drinking is not permitted. (Cal. 

Const., art. XX, § 22; see generally In re Jennifer S. (2009) 179 Cal.App.4th 64 

[discussing local and state laws prohibiting underage drinking].) Likewise, 

although an adult may lawfully purchase cigarettes, a minor cannot. (Pen. Code, 

§ 308, subd. (b).) Offenses like these, which can be committed only by a person 

under 18, are technically status offenses, but they are adjudicated under 

section 602 because they describe a minor‟s conduct that “violates any law.” 

(§ 602, subd. (a); see, e.g., In re Jennifer S., at p. 67.) Section 602 also 

encompasses conduct by a minor that would be a crime if committed by an adult.

In the broadest sense, adjudications under section 300 are “dependency” 

proceedings, and adjudications under sections 601 and 602 are “delinquency” 
6

proceedings. When the juvenile court assumes jurisdiction over a child under 

section 601 or 602, the minor is described as a “ward” of the court.

In the course of our discussion, we will occasionally refer to a minor‟s 

“criminal conduct” as a shorthand to differentiate behavior that would constitute a 

crime if committed by an adult from status offenses, which are punishable only 

because of the minor‟s age. However, in juvenile court, a minor is not designated 

as a “defendant,” nor accused of a “crime,” even though the allegation would 

describe a crime in adult court. (§ 203.) The determination whether a minor has 

violated a criminal provision is made solely in order to establish that the juvenile 

court has jurisdiction. Once this determination is made, the juvenile court can 

declare the minor a ward of the court and order a disposition that will address the 

minor‟s behavior. A juvenile adjudication is not a “conviction” (In re Bernardino 

S. (1992) 4 Cal.App.4th 613, 618), and thus a ward of the juvenile court is not 

“sentenced” for violating the law, even when disposition of the ward‟s case 

involves removal from home for a period of confinement.

1. Foster Care Placements in Delinquency Proceedings

A temporary or permanent foster care placement typically arises in the 

context of juvenile dependency proceedings, in which the court determines 

whether a child‟s home is unfit. If allegations of parental abuse or neglect are 

substantiated, the court assumes jurisdiction and removes the child from the family 

home for the child‟s own well-being. Such a child is adjudged to be a 

“dependent” of the court. (§ 300 et seq.) When a dependent child is placed in a 

foster home, the family generally participates in reunification services, with the 

goal of the child‟s safe return to parental custody.

3 Meanwhile, the dependency

case proceeds through an intricate system of review hearings. Because family 

reunification is not always possible, child welfare workers also explore 

 

3 In some extreme cases, the court can deny services and foreclose any 

attempt at reunification. (§§ 361.5, subd. (b) [dependency], 727.2, subd. (b) 

[delinquency].)
7

alternatives for a child‟s permanent placement outside the home through

guardianship or adoption. The dependency process culminates in a permanency 

planning hearing, at which the court determines whether the child can be safely 

returned home or, if not, whether parental rights must be terminated and the child 

released to a permanent placement. (§ 366.26.)

Although the great majority of children enter foster care through the 

dependency process, a child may also enter foster care in a delinquency 

placement.

4 Foster care placement is one of several dispositional options available 

to the delinquency court. If the allegations of a section 602 petition are found true, 

the court may dismiss the petition in the interest of justice (§ 782), place the child

on informal probation for up to six months without a declaration of wardship 

(§ 725, subd. (a)), or declare the child a ward of the juvenile court (§ 725, 

subd. (b)) and proceed to disposition.

While a delinquent ward may be allowed to remain at home, the grounds 

for removing a ward from parental custody are established by statute. Removal is 

warranted only if the court finds: (1) the parent has not or cannot provide “proper 

maintenance, training, and education” for the child; (2) previous attempts at inhome probation have failed to reform the child; or (3) the child‟s welfare requires 

that custody be taken from the parent. (§ 726, subd. (a).) When removed from the 

family home, the ward comes under the supervision of the probation department. 

(§ 727, subd. (a).) Depending on the severity of the offense and other 

rehabilitative considerations, the juvenile court may direct that the ward be placed 

 

4 In July 2009, approximately 63,000 California children were in foster care 

under the supervision of child welfare departments. Another 5,000 were in 

probation-supervised foster care because of their involvement with the criminal 

justice system. (Danielson & Lee, Foster Care in California: Achievements and 

Challenges (May 2010) Public Policy Institute of California, p. 5 

<http://www.ppic.org/main/publication.asp?i=905> [as of Aug. 6, 2012] (Foster

Care in California).) Children who entered foster care through delinquency 

proceedings generally comprise less than 10 percent of the population in foster 

care. (Id. at p. 17, fn. 13.)
8

in a nonsecure home or facility or may order that the ward serve a period of 

physical confinement, either in a secure local facility (§ 730, subd. (a) [juvenile 

home, ranch, camp, forestry camp, or juvenile hall]) or in the Department of 

Corrections and Rehabilitation, Division of Juvenile Facilities (DJF) [formerly the 

California Youth Authority], which is the most restrictive placement. (§ 731; In re 

Eddie M. (2003) 31 Cal.4th 480, 488.) If a nonsecure placement is found to be 

appropriate, the probation department may place a removed ward in the home of a 

relative, in a licensed community care facility, or in foster care. (§ 727, subd. (a).) 

A group home is the predominant out-of-home placement chosen for delinquent 

wards.5

If a delinquent ward is removed from parental custody, even temporarily, 

reunification services must usually be provided to address the minor‟s needs and 

facilitate a safe return to the family home. (§ 727.2, subd. (a).) The reunification 

process generally mirrors that followed in dependency. Although dependency and 

delinquency law differ in several ways, the Legislature has announced that both 

types of proceedings serve the purpose of preserving and strengthening family 

relationships. (In re James R. (2007) 153 Cal.App.4th 413, 430.) Family 

preservation and reunification are “appropriate goals” for a court to consider in 

determining the disposition of a delinquent minor, so long as they are consistent 

with public safety and the best interests of the minor. (§ 202, subd. (b); see In re 

L.M. (2009) 177 Cal.App.4th 645, 650.)

Every six months, the court must review the status of a ward removed to 

foster care. (§ 727.2, subd. (c).) At each review hearing, the court considers: (1)

the appropriateness and continuing need for the placement; (2) the probation 

department‟s compliance with the case plan for either returning the child home or 

finalizing an alternative permanent placement; (3) whether limitations should be 

 

5 In 2009, 96 percent of probation-supervised minors first removed from 

parental custody were placed in a group home. (Danielson & Lee, Foster Care in 

California, supra, at p. 18, fn. 27.)
9

placed on the parent‟s ability to make educational decisions for the child; (4) 

progress made by the child and parent in correcting the conditions that created the

need for the foster care placement; (5) the likely date when the child can be 

returned home or released for a permanent placement; and (6) whether services are 

necessary for a child age 16 or older to transition from foster care to independent 

living. (§ 727.2, subd. (e).) If the child is not returned home within 12 months 

after entering foster care, the court must hold a permanency planning hearing. 

(§ 727.3, subd. (a)(1).) At this hearing, it may return the child home, order the 

child into a different permanent placement, or order that further services be 

provided. (§ 727.3, subd. (b).) Possible permanent plans include a termination of 

parental rights, followed by release for adoption; a legal guardianship; placement 

with a relative; or placement in a “planned permanent living arrangement,” such as 

a foster home, program, or facility. (§ 727.3, subd. (b)(3)-(6).) As of January 1, 

2012, if a child will soon turn 18, or if the court finds that delinquency supervision 

is no longer necessary, the court must consider whether to assume dependency 

jurisdiction over the child. (§ 727.2, subd. (i).)

2. “Dual Status” Minors

Delinquency courts follow a system parallel to that used in dependency 

courts for removing a child from the family home. The dependency and 

delinquency systems serve overlapping but slightly different aims, however. 

Whereas the dependency system is geared toward protection of a child victimized 

by parental abuse or neglect, the delinquency system enforces accountability for 

the child‟s own wrongdoing, both to rehabilitate the child and to protect the 

public. (§ 202, subds. (a), (b).)

Although California juvenile courts address the needs of dependent and 

delinquent minors differently, some minors who come before the court seem to 

fall under both systems. Sociological research has demonstrated a strong link 

between childhood abuse or neglect and later delinquent behavior. (See, e.g., 

Judicial Council of Cal., Fact Sheet, Intersection Between Juvenile Dependency 
10

and Delinquency: Available Research (June 2005) pp. 2-4

<http://www.courts.ca.gov/documents/Ab129-FactSheetMay05.pdf> [as of 

Aug. 6, 2012].) Research reveals that dependent children violate criminal laws at 

a significantly higher rate than children who have not been the subject of 

dependency petitions. (Dunlap, Dependents Who Become Delinquents: 

Implementing Dual Jurisdiction in California under Assembly Bill 129 (2006) 5 

Whittier J. Child & Fam. Advocacy 507, 511-512.) In general, however, 

California law prohibits a minor from simultaneously being declared a dependent 

child and a delinquent ward.

In 1989, in response to a Court of Appeal decision that outlined several 

potential problems with allowing concurrent delinquency and dependency 

jurisdiction over a minor (In re Donald S. (1988) 206 Cal.App.3d 134), the 

Legislature added section 241.1 to the Welfare and Institutions Code. This statute 

generally prohibits the juvenile court from assuming dual jurisdiction over minors. 

Section 241.1, subdivisions (a) through (d) state that when a minor appears to 

come within the description of both section 300 (dependency) and section 601 or 

602 (delinquency), the county probation department and child welfare agency 

must consult with each other and jointly determine which status will best serve the 

interests of the minor and the protection of society. Based on this joint 

assessment, the juvenile court decides whether the child should be treated as a 

dependent child or a delinquent ward. (Los Angeles County Dept. of Children & 

Fam. Services v. Superior Court (2001) 87 Cal.App.4th 320, 325; In re Marcus G.

(1999) 73 Cal.App.4th 1008, 1013.) “Dual jurisdiction is generally 

forbidden . . . .” (D.M. v. Superior Court (2009) 173 Cal.App.4th 1117, 1123.)

In 2004, the Legislature created a small exception to the ban on dual 

jurisdiction. Section 241.1, subdivision (e) allows a minor to be designated a 

“dual status child,” and treated simultaneously under the court‟s dependency and 

delinquency jurisdiction, but only in accordance with a precise written protocol. 

The statute requires that the protocol be developed jointly by the county‟s 
11

probation department and child welfare agency and signed by the heads of these 

entities as well as the presiding judge of the juvenile court. (§ 241.1, subd. (e).) 

To avoid duplication of services, county protocols must adopt either an “on-hold” 

system, in which dependency jurisdiction is suspended while the child is a ward of 

the delinquency court, or a “lead court/lead agency” system, in which the 

probation department and social services department decide which agency will 

take the lead in all case-management and court-related matters. (§ 241.1, 

subd. (e)(5).)

Few California counties have adopted these joint protocols, however. 

Currently, eight years after the enactment of section 241.1, subdivision (e), only

nine of California‟s 58 counties have filed dual status protocols with the Judicial 

Council. (Judicial Council of Cal., Dual Status Children: Protocols for 

Implementing Assembly Bill 129 <http://www.courts.ca.gov/7989.htm> [as of 

Aug. 6, 2012].)6 The reluctance to embrace dual status designation has generated

skepticism about the efficacy of section 241.1, subdivision (e)‟s approach and led 

to calls for broader reforms. (See McCulloch, Still Between a Rock and a Hard 

Place . . . Victim or Delinquent: Dual Status Minors in California—An Illusory 

Promise? (2007) 28 J. Juv.L. 118, 132.)

B. Federal Law Regarding Placement of Indian Children

In the juvenile dependency system, children are removed from the family 

home not as punishment for their own misconduct, but because conditions in the 

home subject them to abuse or neglect. Additional procedures are required if a 

child is of Indian heritage. Congress has determined that, as a matter of federal 

policy, protective steps must be taken before an Indian child may be removed. In 

1978, these protections were codified in ICWA. (25 U.S.C. § 1901 et seq.) 

 

6 The counties with protocols are: Colusa, Inyo, Modoc, Placer, Riverside, 

San Joaquin, Siskiyou, Sonoma, Stanislaus. (Judicial Council of Cal., Dual Status 

Children: Protocols for Implementing Assembly Bill 129 

<http://www.courts.ca.gov/7989.htm> [as of Aug. 6, 2012].)
12

Dependency courts and social workers are accustomed to complying with ICWA, 

which applies when an Indian child is removed from parental custody, even 

temporarily. However, because Congress created a specific exemption for 

placements based on a child‟s criminal conduct (25 U.S.C. § 1903(1)), it has long 

been understood that ICWA‟s requirements do not apply in most juvenile 

delinquency cases. (See, e.g., In re Enrique O. (2006) 137 Cal.App.4th 728.)

1. ICWA Requirements

ICWA is a federal law giving Indian tribes concurrent jurisdiction over 

state court child custody proceedings that involve Indian children living off of a 

reservation. (25 U.S.C. § 1911(b)-(c); Mississippi Choctaw Indian Band v. 

Holyfield (1989) 490 U.S. 30, 36.)7 Congress enacted ICWA to further the federal 

policy “ „that, where possible, an Indian child should remain in the Indian 

community. . . .‟ ” (Mississippi Choctaw Indian Band v. Holyfield, at p. 37.) 

Congress found that Indian children were vitally important “to the continued 

existence and integrity of Indian tribes” (25 U.S.C. § 1901(3)), but “an alarmingly 

high percentage of Indian families are broken up by the removal, often 

unwarranted, of their children from them by nontribal public and private agencies 

and . . . placed in non-Indian foster and adoptive homes and institutions . . . .” (25 

U.S.C. § 1901(4).) Congress further found “that the States, exercising their 

recognized jurisdiction over Indian child custody proceedings through 

administrative and judicial bodies, have often failed to recognize the essential 

tribal relations of Indian people and the cultural and social standards prevailing in 

Indian communities and families.” (25 U.S.C. § 1901(5).) Based on these 

findings, Congress declared a national policy “to protect the best interests of 

Indian children and to promote the stability and security of Indian tribes and 

families by the establishment of minimum Federal standards for the removal of 

 

7 Tribal courts have exclusive jurisdiction in these proceedings when the 

child lives on a reservation. (25 U.S.C. § 1911(a).)
13

Indian children from their families and the placement of such children in foster or 

adoptive homes which will reflect the unique values of Indian culture, and by 

providing for assistance to Indian tribes in the operation of child and family

service programs.” (25 U.S.C. § 1902.)

When applicable, ICWA imposes three types of requirements: notice, 

procedural rules, and enforcement. (See In re S.B. (2005) 130 Cal.App.4th 1148, 

1156-1157.) First, if the court knows or has reason to know that an “ „Indian 

child‟ ” is involved in a “ „child custody proceeding,‟ ” as those terms are defined 

in the Act (25 U.S.C. § 1903(1), (4)), the social services agency must send notice 

to the child‟s parent, Indian custodian, and tribe by registered mail, with return 

receipt requested. (25 U.S.C. § 1912(a).) If the identity or location of the tribe 

cannot be determined, notice must be sent to the Bureau of Indian Affairs (BIA). 

(Ibid.) No hearing on foster care placement or termination of parental rights may

be held until at least 10 days after the tribe or BIA has received notice. (Ibid.)

Next, after notice has been given, the child‟s tribe has “a right to intervene 

at any point in the proceeding.” (25 U.S.C. § 1911(c).) “At the heart of the ICWA 

are its provisions concerning jurisdiction over Indian child custody 

proceedings. . . . [I]n the case of children not domiciled on the reservation: on 

petition of either parent or the tribe, state-court proceedings for foster care 

placement or termination of parental rights are to be transferred to the tribal court, 

except in cases of „good cause,‟ objection by either parent, or declination of 

jurisdiction by the tribal court.” (Mississippi Choctaw Indian Band v. Holyfield, 

supra, 490 U.S. at p. 36, fn. omitted.) If the tribal court does not assume 

jurisdiction, ICWA imposes various procedural and substantive requirements on 

the state court proceedings. Indigent parents or Indian custodians have the right to 

court-appointed counsel. (25 U.S.C. § 1912(b).) Before the court can place an 

Indian child in foster care or terminate parental rights, it must find “that active 

efforts have been made to provide remedial services and rehabilitative programs 

designed to prevent the breakup of the Indian family and that these efforts have 
14

proved unsuccessful.” (25 U.S.C. § 1912(d).) A foster care placement also 

requires a finding, by clear and convincing evidence, based on testimony from 

“qualified expert witnesses,” that “continued custody of the child by the parent . . .

is likely to result in serious emotional or physical damage to the child.” (25 

U.S.C. § 1912(e).) Before a termination of parental rights may occur, likelihood 

of harm must be proven beyond a reasonable doubt. (25 U.S.C. § 1912(f).) Once 

the appropriate showing is made, ICWA establishes rules for the placement of an 

Indian child outside the home. “The most important substantive requirement 

imposed on state courts is that of § 1915(a), which, absent „good cause‟ to the 

contrary, mandates that adoptive placements be made preferentially with (1) 

members of the child‟s extended family, (2) other members of the same tribe, or 

(3) other Indian families.” (Mississippi Choctaw Indian Band v. Holyfield, at pp. 

36-37.)

Finally, an enforcement provision offers recourse if an Indian child has 

been removed from parental custody in violation of ICWA. Upon a petition from 

the parent or the child‟s tribe to “any court of competent jurisdiction,” a foster care 

placement or termination of parental rights will be invalidated if the action was 

conducted in violation of ICWA. (25 U.S.C. § 1914.)

2. ICWA Definitions

ICWA is quite precise in setting out the scope of its provisions. It applies 

to any “ „child custody proceeding‟ ” involving an “ „Indian child.‟ ” (25 U.S.C. 

§ 1903.) An “Indian child” is an unmarried person under 18 who is either a 

member of an Indian tribe or is eligible for membership and is the biological child 

of a tribe member. (25 U.S.C. § 1903(4).) A “ „child custody proceeding‟ ” is any 

action resulting in a foster care placement, termination of parental rights, 

preadoptive placement, or adoptive placement. (25 U.S.C. § 1903(1).) A “ „foster 

care placement‟ ” refers to the temporary removal of a child from the parent or 

Indian custodian to a foster home or institution, or the home of a guardian or 

conservator, where parental rights have not been terminated but the parent or 
15

Indian custodian cannot have the child returned on demand. (25 U.S.C. 

§ 1901(1)(i).) The Act specifies, however, that “[s]uch term or terms shall not 

include a placement based upon an act which, if committed by an adult, would be 

deemed a crime or upon an award, in a divorce proceeding, of custody to one of 

the parents.” (25 U.S.C. § 1903(1), italics added.) Thus, by its plain terms, the

Act specifically excludes most delinquency placements from its requirements.

Congressional intent to preclude the application of ICWA in most state

juvenile delinquency proceedings is also evident from collateral materials. For 

example, a letter from the assistant secretary of the Department of the Interior to 

the sponsor of the bill that enacted ICWA,

8 stressed that limitations on the Act‟s 

scope were “crucial to the carrying out” of its provisions. (H.R.Rep. No. 1386-

95, 2d Sess., p. 31 (1978).) The Interior Department believed “delinquency 

proceedings where the act committed would be a crime if committed by an adult 

should be excepted from the definition” of placements to which ICWA applied, 

because the “standards and preferences” of ICWA “have no relevance in the 

context of a delinquency proceeding.” (Ibid.)

Federal guidelines published by the BIA to guide state courts in 

implementing ICWA also state that “most juvenile delinquency proceedings are 

not covered by the Act . . . .” (U.S. Dept. of the Interior, Bureau of Indian Affairs, 

Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg. 

67584, 67587 (Nov. 26, 1979) (BIA Guidelines).)

9 However, according to the 

BIA Guidelines, “the Act does apply to status offenses, such as truancy and 

incorrigibility, which can only be committed by children, and to any juvenile 

 

8 House Bill No. 12533, 95th Congress, 2d Session (1978).

9 Although Congress directed the Secretary of the Department of the Interior 

to promulgate regulations (25 U.S.C. § 1952), the BIA instead issued a set of 

guidelines that are instructive but not determinative of state court decisions. (BIA 

Guidelines, 44 Fed.Reg. at p. 67584; see In re Santos Y. (2001) 92 Cal.App.4th 

1274, 1301.)
16

delinquency proceeding that results in the termination of a parental relationship.” 

(BIA Guidelines, 44 Fed.Reg. at p. 67587.) Commentary to this guideline 

explains why Congress excluded most delinquency placements from ICWA‟s 

requirements: “The entire legislative history makes it clear that the Act is directed 

primarily at attempts to place someone other than the parent or Indian custodian in 

charge of raising an Indian child—whether on a permanent or temporary basis. 

Although there is some overlap, juvenile delinquency proceedings are primarily 

designed for other purposes. Where the child is taken out of the home for 

committing a crime it is usually to protect society from further offenses by the 

child and to punish the child in order to persuade that child and others not to 

commit other offenses.” (Id., 44 Fed.Reg. at p. 67587.) This rationale for 

excluding delinquency matters from ICWA does not apply to status offenses 

because Congress believed placements outside the home for status offenses “are 

usually premised on the conclusion that the present custodian of the child is not 

providing adequate care or supervision.” (Ibid.) However, the BIA Guidelines 

explain that ICWA applies to all placements, regardless of the type of offense, if a 

termination of parental rights is contemplated. (Id., 44 Fed.Reg. at pp. 67587-

67588.) “Such terminations are not intended as punishment and do not prevent the 

child from committing further offenses. They are based on the conclusion that 

someone other than the present custodian of the child should be raising the child.” 

(Id., 44 Fed.Reg. at p. 67588.)

In summary, ICWA grants the parents and custodians of Indian children, as 

well as the child‟s tribe, several procedural and substantive rights in “child 

custody proceedings.” As defined in the Act, these proceedings include all foster 

care or adoptive placements of Indian children except placements made in the 

context of most juvenile delinquency proceedings and parental custody awards in 

divorce proceedings. (25 U.S.C. § 1903(1).) Congressional intent to exclude most 

delinquency-based placements from ICWA is clear.
17

C. California’s Implementation of ICWA

1. Background

After Congress enacted ICWA, the states adopted procedures to implement 

it. For many years, the only guidance for California‟s juvenile courts in applying 

ICWA came from a California Rule of Court.10 Former Rule 1360, and then 

former Rule 1439, incorporated most of ICWA‟s definitions and established

substantially identical requirements for the placement of Indian children outside 

the home. (See In re Santos Y., supra, 92 Cal.App.4th at pp. 1301-1303.) The 

rule‟s application was expressly limited to juvenile dependency proceedings. 

(Former Rule 1439(b) [“This rule applies to all proceedings under section 300 et 

seq. . . .”].) However, in 2005 the Judicial Council expanded the rule to cover all 

delinquency proceedings when the child is at risk of entering foster care or is in 

foster care. (R.R. v. Superior Court, supra, 180 Cal.App.4th at p. 199.) These 

amendments survive in the current version of the rule. (Rule 5.480.)11

In 2006, with the passage of Senate Bill No. 678 (2005-2006 Reg. Sess.), 

the Legislature incorporated ICWA‟s requirements into California statutory law. 

(Stats. 2006, ch. 838.) The primary objective of Senate Bill No. 678 was to 

increase compliance with ICWA. California Indian Legal Services (CILS), a 

proponent of the bill, observed that courts and county agencies still had difficulty 

 

10 All citations to rules refer to the California Rules of Court (hereafter Rule 

or Rules).

11 Under Rule 5.480 et seq., ICWA “applies to all proceedings involving 

Indian children that may result in an involuntary foster care placement; 

guardianship or conservatorship placement; custody placement [with a nonparent]; 

declaration freeing a child from the custody and control of one or both parents; 

termination of parental rights; or adoptive placement, including: [¶] . . . 

[p]roceedings under Welfare and Institutions Code section 300 et seq., and 

sections 601 and 602 et seq. in which the child is at risk of entering foster care or 

is in foster care . . . .” (Italics added.) The only exception is for “voluntary foster 

care and guardianship placements where the child can be returned to the parent or 

Indian custodian on demand.” (Rule 5.480.) As we will discuss (post, fn. 17), this 

rule is overbroad.
18

complying with ICWA 25 years after its enactment, and CILS believed 

codification of the Act‟s requirements into state law would help alleviate the 

problem. (Sen. Judiciary Com., Analysis of Sen. Bill No. 678 (2005-2006 Reg. 

Sess.) as amended Aug. 22, 2005, p. 6.) To accomplish this goal, Senate Bill No. 

678 revised and recast several provisions of the Family, Probate, and Welfare and 

Institutions Codes. (See Assem. Com. on Judiciary, Analysis of Sen. Bill No. 678 

(2005-2006 Reg. Sess.) as amended June 14, 2006, p. 1.)

2. California’s Statutory Scheme

ICWA‟s many procedural requirements for juvenile dependency and 

delinquency cases are found in sections 224 through 224.6 of the Welfare and

Institutions Code. We examine these statutes to determine whether, and to what 

extent, the Legislature extended requirements of the federal Act to delinquency 

proceedings in California.

Established principles of statutory construction apply. Our goal is to 

determine the Legislature‟s intent and adopt a construction that best effectuates the 

purpose of the law. (Miklosy v. Regents of University of California (2008) 44 

Cal.4th 876, 888; In re J. W. (2002) 29 Cal.4th 200, 209.) We begin with the 

statutory language because it generally provides the most reliable indication of 

legislative intent. (City of Burbank v. State Water Resources Control Bd. (2005) 

35 Cal.4th 613, 625; People v. Gardeley (1996) 14 Cal.4th 605, 621.) “ „If the 

statutory language is unambiguous, we presume the Legislature meant what it 

said, and the plain meaning of the statute controls. [Citation.]‟ [Citation.] We 

consider extrinsic aids, such as legislative history, only if the statutory language is 

reasonably subject to multiple interpretations.” (Miklosy v. Regents of University

of California, at p. 888.)

a. Statutory Language

Section 224.3 defines when and how the juvenile court must inquire about a 

child‟s possible Indian ancestry. Section 224.3, subdivision (a) states: “The court, 

county welfare department, and the probation department have an affirmative and 
19

continuing duty to inquire whether a child for whom a petition under Section 300, 

601, or 602 is to be, or has been, filed is or may be an Indian child in all 

dependency proceedings and in any juvenile wardship proceedings if the child is 

at risk of entering foster care or is in foster care.” (Italics added.) This language 

is clear. It creates an obligation for the juvenile court, the county welfare 

department, and the probation department to inquire about the child‟s Indian status 

in all dependency proceedings and in any delinquency case involving a child who

is already in foster care or who appears to be at risk of entering foster care. “At 

risk of entering foster care” is a term specifically defined. It “means that 

conditions within a minor‟s family may necessitate his or her entry into foster care 

unless those conditions are resolved.” (§ 727.4, subd. (d)(2).) Accordingly, the 

court or the probation department must ask about Indian status at the outset of any 

delinquency case involving a child who is currently in foster care. If the child is 

not currently in foster care, the court and the probation department have a

continuing duty to inquire about Indian status if, at any time during the 

proceedings, it appears that conditions in the child‟s family may require a foster 

care placement unless they are resolved. (§§ 224.3, subd. (a), 727.4, subd. (d)(1).)

Once the court has learned that a child under its jurisdiction may have 

Indian ancestry, the next step ICWA typically requires is notice to the tribe or, if 

no tribe is identified, to the BIA. (25 U.S.C. § 1912(a).) Obviously, ICWA 

requirements apply only in those cases that fall under the statutory scheme. Two 

California statutes describe the notice requirement and when it applies. 

Section 224.3, the same statute that establishes a duty of inquiry, provides in a 

later subdivision: “If the court, social worker, or probation officer knows or has 

reason to know that an Indian child is involved, the social worker or probation 

officer shall provide notice in accordance with paragraph (5) of subdivision (a) of 

Section 224.2.” (§ 224.3, subd. (d).) Although section 224.3 does not specify 

what type of proceeding the Indian child must be “involved” in for the notice 

obligation to apply, this ambiguity is clarified by the cross-referenced statute. 
20

Section 224.2, subdivision (a), states that “[i]f the court, a social worker, or 

probation officer knows or has reason to know that an Indian child is involved, 

any notice sent in an Indian child custody proceeding under this code shall be sent 

to the minor‟s parents or legal guardian, Indian custodian, if any, and the minor‟s 

tribe and comply with [several enumerated] requirements.” (Italics added.)12 The 

language of section 224.2, subdivision (a) limits the notice requirement to the 

context of “an Indian child custody proceeding.” Thus, read together, 

sections 224.2 and 224.3 require that ICWA notice be provided only when an 

Indian child is involved in an Indian child custody proceeding. (See Dyna-Med, 

Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1370, 1387; People v. 

Pieters (1991) 52 Cal.3d 894, 899 [statutory provisions relating to the same 

subject should be harmonized].)

“Indian child custody proceeding” is a term of art. Section 224.1, 

subdivision (d) states, in part: “ „Indian child custody proceeding‟ means a „child 

custody proceeding‟ within the meaning of Section 1903 of the Indian Child 

Welfare Act, including a proceeding for temporary or long-term foster care or 

guardianship placement, termination of parental rights, preadoptive placement 

after termination of parental rights, or adoptive placement.” California‟s 

definition of the child custody proceedings to which ICWA applies thus 

incorporates, and is coextensive with, the definition in the federal Act.13 As 

noted, the definition of “child custody proceeding” in title 25 United States Code 

 

12 Subdivision (a)(5) describes the particular information that must be 

included in the notice. (§ 224.2, subd. (a)(5).)

13 The Legislature‟s desire to import the federal definition is also evident in 

section 224, subdivision (b), which declares that in “all Indian child custody 

proceedings, as defined in the federal Indian Child Welfare Act” (italics added), 

the court must consider legislative findings about California‟s interest in 

preserving tribal communities, strive to promote the stability of Indian tribes and 

families, and protect the best interests of the child.
21

section 1903 expressly excludes delinquency proceedings based on an act that 

would be criminal if committed by an adult.

Section 224.3, subdivision (a) is the only provision in California‟s ICWA 

legislation that expressly applies to juvenile delinquency proceedings. (See R.R. v. 

Superior Court, supra, 180 Cal.App.4th at p. 200.) All of the other statutes, 

including the two notice statutes just discussed, extend the rights and protections 

of ICWA to participants in “an Indian child custody proceeding.” (E.g., § 224.4; 

see also §§ 224.2, subd. (a), 224.5, 224.6, subd. (a).) Because an “Indian child 

custody proceeding” by definition excludes proceedings to place a child outside 

the home based on conduct that would be criminal if committed by an adult 

(§ 224.1, subd. (d); 25 U.S.C. § 1903(1)), it follows that California‟s ICWA 

statutes impose no duty of notice, or any other ICWA procedures, in most 

delinquency cases alleging adult criminal conduct. A narrow exception applies

when the court decides to place a delinquent ward outside the home for reasons 

other than the ward‟s criminal conduct. Even if the case began as a delinquency 

matter, circumstances may lead the court to remove a ward from parental custody

because of abuse or neglect in the home. In such cases in which a placement is 

imposed because of dependency concerns and not, even in part, because of the 

ward‟s criminal conduct, both California and federal law require that ICWA 

procedures be followed.

The relevant statutory language indicates that, although the Legislature

created a duty of inquiry in all cases involving a potential foster care placement, it

did not extend ICWA‟s notice and enforcement requirements so broadly. Instead, 

consistent with federal law, the Legislature dictated that the notice and procedural 

protections of ICWA be provided only in the subset of delinquency cases that 

meet the federal definition of a “child custody proceeding,” i.e., those based on 

considerations other than the child‟s criminal conduct.

In sum, from the language of the statutes, we distill the following. In all 

juvenile delinquency proceedings, including those alleging adult criminal conduct, 
22

the court and the probation department have a duty to inquire about Indian status 

as soon as they determine that the child is in foster care or is at risk of entering 

foster care due to conditions in the child‟s home. (§§ 224.3, subd. (a), 727.4, 

subd. (d)(1).) Notice pursuant to ICWA is generally not required in a delinquency 

proceeding premised on conduct that would be criminal if committed by an adult. 

However, if, at the disposition stage or at any point in the proceedings, the court 

contemplates removing an Indian child from the parental home based on concerns 

about harmful conditions in the home, and not based on the need for rehabilitation 

or other concerns related to the child‟s criminal conduct, notice is required and all 

other ICWA procedures must be followed.14

b. Legislative History

Legislative history also supports this interpretation. The primary purpose 

of Senate Bill No. 678 was to encourage full compliance with ICWA by codifying 

its requirements into state law. (Sen. Judiciary Com., Analysis of Sen. Bill No. 

678 (2005-2006 Reg. Sess.) as amended Aug. 22, 2005, pp. 1, 6; Sen. 

Appropriations Com., Analysis of Sen. Bill No. 678 (2005-2006 Reg. Sess.) as 

 

14 At oral argument, W.B.‟s counsel asserted the duties of notice and inquiry 

cannot be separated because communication with the tribes is the only way to 

determine whether a child is truly an Indian child. (See § 224.1, subd. (a); 25 

U.S.C. § 1903(4).) This argument goes too far. For example, it would require 

notice to the tribes in every single dependency case, even when there has been no 

suggestion of Indian ancestry or when the parents have disavowed such ancestry. 

We have never interpreted ICWA‟s duty of inquiry so expansively. Section 224.3, 

subdivision (a) describes when the duty to inquire arises, and subdivision (b) 

describes information that may provide reason to know an Indian child is 

involved. Contact with the BIA and tribes is required only if information 

produced by the initial inquiry gives the court, social worker, or probation officer 

reason to know the minor is an Indian child. (§ 224.3, subd. (c).) Although final 

confirmation of a child‟s Indian status may not occur until the tribes have been 

contacted, this is no reason to expand ICWA notice beyond the boundaries set by 

the Legislature. Section 224.3 imposes a duty to inquire about possible Indian

status; it does not obligate the court to confirm that status with the BIA and tribes 

in every juvenile court case.
23

amended Aug. 22, 2005, p. 1; Assem. Com. on Judiciary, Analysis of Sen. Bill 

No. 678 (2005-2006 Reg. Sess.) as amended June 14, 2006, p. 6.) To a large 

extent, the bill simply reorganized and supplemented existing provisions of the 

Family, Probate, and Welfare and Institutions Codes to address ICWA 

compliance. (Sen. Judiciary Com., Analysis of Sen. Bill No. 678 (2005-2006 Reg. 

Sess.) as amended Aug. 22, 2005, pp. 6-7.) Nothing in the history of Senate Bill 

No. 678 suggests an intent to override the criminal acts exception or expand 

ICWA to delinquency cases that Congress explicitly excluded.15

If our Legislature had intended to extend ICWA‟s protections to a whole 

new realm of juvenile delinquency cases otherwise exempted under the federal 

law, one would expect evidence of this intent to feature prominently in the 

legislative history. Yet, no mention of such a purpose appears. Legislative 

committee analyses consistently state that Senate Bill No. 678 “clarifies which 

proceedings, under California law, are Indian child custody proceedings” and thus

“subject to ICWA.” (Sen. Judiciary Com., Analysis of Sen. Bill No. 678 (2005-

2006 Reg. Sess.) as amended Aug. 22, 2005, p. 12, italics added.) The committee 

reports say nothing about extending ICWA to delinquency placements based on 

criminal acts. Although the bill‟s sponsor mentioned delinquency at an 

informational hearing before the Senate Judiciary Committee, she stated only that 

Senate Bill No. 678 sought “to clarify what ICWA requires in juvenile court and 

of the county agencies in delinquency cases.” (Sen. Judiciary Com., Transcript of 

 

15 In some other respects, Senate Bill No. 678 did go beyond the protections 

in federal law to enact higher standards of protection. For example, ICWA 

requires a finding that active efforts were made to prevent breakup of an Indian 

family before a government-initiated foster care placement or termination of 

parental rights. (25 U.S.C. § 1912(d).) Senate Bill No. 678 expanded this 

requirement to private adoptions as well. (Stats. 2006, ch. 838, §§ 8-15; Sen. 

Judiciary Com., Analysis of Sen. Bill No. 678 (2005-2006 Reg. Sess.) as amended 

Aug. 22, 2005, pp. 8-9.) However, these expansions are directly addressed in the 

legislative history. The same cannot be said of an extension of ICWA to 

delinquency placements based on criminal acts.
24

Informational Hearing, “The Indian Child Welfare Act and Related Compliance 

Problems” (May 17, 2005) p. 4 [testimony of Sen. Denise Moreno Ducheny].)

A Court of Appeal case decided while the Legislature was actively 

considering Senate Bill No. 678 also supports the conclusion that the Legislature 

did not intend to extend ICWA to delinquency placements based on criminal 

conduct. In In re Enrique O., supra, 137 Cal.App.4th at page 732, a minor who 

had committed a sexual battery was placed in a group home based on the 

aggressive nature of his offense, his “home situation,” and the probation officer‟s 

belief that aggressive sexual misconduct required inpatient counseling. On appeal, 

the minor challenged the lack of ICWA notice. He asserted the 2005 amendments 

to former Rule 1439, which mandated notice in all section 601 and 602 

proceedings in which the child is in or at risk of entering foster care, trumped the 

longstanding rule that ICWA does not apply in delinquency proceedings. (In re 

Enrique O., at p. 733.) Despite the juvenile court‟s concern about the general 

well-being of the minor, the Court of Appeal concluded the placement was 

“ „based on‟ ” the minor‟s criminal activity. The court reasoned: “This is not a 

case where criminal activity simply highlights a situation that results in removal 

from the home for reasons in the home; rather, the offenses appellant committed 

here placed him squarely and unavoidably within the delinquency exception of the 

ICWA.” (Id. at p. 734.) More to the point, the court observed that the minor‟s 

interpretation of former Rule 1439 was in direct conflict with the federal statute on 

which it was based, “which is an untenable result.” (In re Enrique O., at p. 734.) 

Accordingly, the court refused to “interpret the California Rules of Court . . . to 

expressly contradict the ICWA by ordering ICWA notices and procedures to occur 

in all out of home placements arising out of acts that would be deemed crimes if 

committed by an adult. [Citations.]” (In re Enrique O., at p. 735.)
25

The Enrique O. decision was published while the Legislature was 

considering Senate Bill No. 678.16 Because the Legislature is presumed to know 

about existing case law when it enacts or amends a statute (People v. Overstreet

(1986) 42 Cal.3d 891, 897), we assume the Legislature was aware of Enrique O.‟s 

holding that former Rule 1439 was inconsistent with federal law and invalid to the 

extent it would expand ICWA to delinquency placements based on acts that would 

be criminal if committed by an adult. The Legislature did not signal an intent to 

supersede this holding. In fact, it specifically adopted and incorporated the federal 

definition of “child custody proceedings” that is the origin of the delinquency 

exemption. (§ 224.1, subd. (a), citing 25 U.S.C. § 1903.) There is nothing to 

suggest the Legislature meant to expand ICWA to a subset of cases specifically 

excluded from the federal definition of “child custody proceedings” to which the 

Act applies. On the contrary, if the Legislature had wanted to make ICWA 

applicable to a whole new category of cases, it would have made little sense for it 

to incorporate a federal definition directly contradicting such an extension.

3. Application of ICWA in Delinquency Cases

We have determined that California‟s ICWA statutes require the following: 

In all juvenile court proceedings, both dependency and delinquency, the court, 

social worker, or probation officer must inquire about the child‟s Indian status 

whenever the child is in foster care or conditions in the child‟s family may

potentially require a foster care placement. (§ 224.3, subd. (a).) Notice to the 

tribes and other ICWA procedures must be provided only if the case is a “child 

custody proceeding,” as defined in 25 U.S.C. section 1903(1). (§ 224.2, subd. (a).) 

A case qualifies as a “child custody proceeding” if it will involve action taken to 

terminate parental rights or to place an Indian child in foster care or in an adoptive 

 

16 The bill was introduced in August 2005. The Court of Appeal decided 

Enrique O. on March 13, 2006, and this court denied review on June 28, 2006. (In 

re Enrique O., supra, 137 Cal.App.4th 728.) Senate Bill No. 678 eventually 

passed on September 30, 2006. (Stats. 2006, ch. 838.)
26

or preadoptive home or institution. (25 U.S.C. § 1903(1).) Any case involving 

placement of a child outside the home based upon an act that would be criminal if 

committed by an adult is not a “ „child custody proceeding‟ ” and is thus exempt

from ICWA. (25 U.S.C. § 1903(1).)17

Different types of juvenile court cases in California therefore require 

different levels of ICWA compliance. It is undisputed that all dependency 

proceedings must be conducted in compliance with ICWA. (See, e.g., Dwayne P. 

v. Superior Court (2002) 103 Cal.App.4th 247, 253 [“The ICWA confers on tribes 

the right to intervene at any point in state court dependency proceedings”].) 

Delinquency proceedings brought under section 601 also fall within the purview 

of ICWA because they are based on conduct that would not be criminal if 

committed by an adult. However, ICWA procedures would be required only in 

the narrow instance in which a section 601 ward is temporarily or permanently 

removed from the family home. (See § 601, subd. (b) [expressing legislative 

intent that truant wards remain in parental custody].)

Whether ICWA applies in a delinquency case brought under section 602

depends, first, on the type of offense alleged in the petition. If the section 602 

petition alleges only that the minor committed a status offense (see ante, at p. 5),

ICWA compliance is required before the minor can be placed outside the home. 

Like placements under section 601 for truancy or incorrigibility, placements under 

section 602 based on the minor‟s commission of a status offense are subject to 

ICWA because they are not based on criminal conduct. However, if the

 

17 Because it does not account for the limited applicability of ICWA in 

delinquency cases, the Rule of Court describing ICWA‟s requirements is 

overbroad. Rule 5.480 states that ICWA applies in all section 601 and 602 

proceedings in which the child is in or at risk of entering foster care. Rules 

established by the Judicial Council are authoritative only “to the extent that they 

are not inconsistent with legislative enactments and constitutional provisions.” (In 

re Richard S. (1991) 54 Cal.3d 857, 863.) As demonstrated, the relevant statutes 

limit ICWA‟s application to the narrow category of section 602 placements not 

based on the minor‟s delinquent conduct.
27

section 602 petition alleges the minor committed an act that would be a crime if 

committed by an adult, the proceedings are generally exempt from ICWA. ICWA 

procedures are ordinarily not required in such proceedings because the placement 

of a delinquent ward outside the home will almost always be based, at least in part,

on the ward‟s criminal conduct.

In some rare cases, the court may remove a section 602 ward from home for 

reasons completely unrelated to the ward‟s offense. Placement of the ward in 

some type of foster care setting is one option available to the court at a section 602 

disposition hearing. (See §§ 727, subd. (a)(3), 727.4, subd. (d)(1), 11402.) In

typical delinquency cases, it can be presumed that such placements are made to 

address the child‟s misconduct and prevent future wrongdoing. In some rare 

cases, however, the court may elect to remove a section 602 ward from home and 

order a foster care placement solely because of parental abuse or neglect. 

Although a delinquency court cannot assume concurrent dependency jurisdiction 

over a ward except in a county with an approved dual status protocol (§ 241.1, 

subd. (d)), the delinquency court does have the power to remove a minor from 

home if the parent is not providing appropriate care. (§ 726, subd. (a).) These 

placements may result in termination of parental rights if reunification efforts are 

unsuccessful. (§ 727.3.) A termination hearing in delinquency court proceeds

exactly like a termination hearing in dependency court. (§ 727.31, subd. (a); see 

§ 366.26.)

Under our interpretation of the relevant statutes, ICWA compliance is 

required in these rare section 602 cases that proceed to a termination of parental 

rights or that result in a foster care placement motivated solely by concerns about 

parental abuse or neglect. If the court sets a permanency planning hearing to 

terminate parental rights over a delinquent ward, or if the court contemplates 

ordering a delinquent ward placed in foster care and announces on the record that 

the placement is based entirely on parental abuse or neglect and not on the ward‟s 

offense, notice must be sent to the relevant tribes and all other ICWA procedures 
28

must be followed. In all other section 602 cases, it will be presumed that a 

placement outside the home is based upon the minor‟s criminal offense and thus 

not subject to ICWA.

A hybrid situation is presented in “dual status” cases. In counties with 

approved joint protocols, the juvenile court may exercise both dependency and 

delinquency jurisdiction over a minor who is designated a “dual status child.” 

(§ 241.1, subd. (e); see ante, at pp. 9-11.) The same principles we have discussed 

govern ICWA‟s application to dual status minors. When the court exercises 

dependency jurisdiction to terminate parental rights or place a dual status Indian

minor in foster care due to harmful conditions in the home, full ICWA compliance 

is required. However, if the foster care placement of a dual status minor is 

motivated in part by the minor‟s delinquent conduct and the need for 

rehabilitation, the placement is exempt from ICWA.

To summarize, in both dependency and delinquency proceedings, the 

juvenile court must give notice and comply with other ICWA requirements before

it can terminate parental rights over an Indian child or place an Indian child in 

foster care, or in an adoptive or preadoptive placement, due to abuse or neglect in 

the child‟s home. ICWA procedures are thus required for out-of-home placements 

of dependent children and section 601 and 602 status offenders. Depending on the 

reasons for the placement, these procedures may also be required when dual status 

minors are removed from home. ICWA procedures are typically not required for 

placements of section 602 wards detained for criminal conduct. Unless the

delinquency court announces otherwise, on the record, it will be presumed that any 

placement of a section 602 ward outside the home is based, at least in part, on the 

ward‟s criminal conduct. With rare exceptions for dual status minors and status 
29

offenders, placements in delinquency proceedings are presumptively exempt from 

ICWA.18

D. Application to the Present Case

The minor in this case came before the juvenile court on a section 602 

petition alleging he had committed residential burglary, conduct that would be a 

crime if committed by an adult. The court found the allegation true and ordered 

him placed in a suitable public or private facility but returned to his mother‟s 

custody upon successful completion of the placement. No termination of parental 

rights was contemplated. On the contrary, the probation department reported that 

the minor had previously been making progress at home in addressing his 

problems with anger and impulsiveness. The department recommended a 

placement outside the home not because of abuse or neglect, but because the 

minor had continued to commit criminal acts and presented a risk to the safety of 

the community.

This was a straightforward juvenile delinquency case. W.B. had committed 

a string of serious crimes and was ordered to spend time in a controlled setting

where he could receive treatment designed to rehabilitate his delinquent behavior. 

W.B. was not designated a “dual status” minor. The court ordered that he be 

returned home after a defined period of time, and he was in fact returned home. 

For the reasons discussed, ICWA does not apply to delinquency placements such 

as this, which are based on the minor‟s criminal acts and which do not 

contemplate an eventual termination of parental rights. Accordingly, assuming the 

minor was an Indian child, the juvenile court did not err in failing to give notice 

under ICWA.

 

18 Because we have concluded California‟s statutory scheme is entirely 

consistent with federal law, we do not reach issues of federal preemption.
30

DISPOSITION

The judgment of the Court of Appeal is affirmed.

CORRIGAN, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

KENNARD, J.

BAXTER, J.

WERDEGAR, J.

CHIN, J.

LIU, J. 
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re W.B.

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 182 Cal.App.4th 126

Rehearing Granted

__________________________________________________________________________________

Opinion No. S181638

Date Filed: August 6, 2012

__________________________________________________________________________________

Court: Superior

County: Riverside

Judge: Christian F. Thierbach

__________________________________________________________________________________

Counsel:

Jonathan E. Demson, under appointment by the Supreme Court, for Defendant and Appellant.

Mark Radoff and Delia Parr for California Indian Legal Services as Amicus Curiae on behalf of Defendant 

and Appellant.

Paulino G. Durán, Public Defender (Sacramento), Arthur L. Bowie and Randi Barrat, Assistant Public 

Defenders, for the Office of the Public Defender for Sacramento County as Amicus Curiae on behalf of 

Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant 

Attorney General, Gary W. Schons, Assistant Attorney General, Steven T. Oetting and Meredith S. White, 

Deputy Attorneys General, for Plaintiff and Respondent.

W. Scott Thorpe; and Albert C. Locher, Assistant District Attorney (Sacramento) for California District 

Attorneys Association as Amicus Curiae on behalf of Plaintiff and Respondent.

Jennifer B. Henning for California State Association of Counties as Amicus Curiae.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Jonathan E. Demson

1158 26th Street, #291

Santa Monica, CA 90403

(888) 827-9153

Mark Radoff

California Indian Legal Services

609 S. Escondido Blvd.

Escondido, CA 92025

(760) 746-8941

Meredith S. White

Deputy Attorney General

110 West A Street, Suite 1100

San Diego, CA 92101

(619) 645-2297