In re Baby Girl M. ( 2022 )

Filed 9/21/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re BABY GIRL M., A Person B311176
Coming Under the Juvenile Court
Law. (Los Angeles County
___________________________________ Super. Ct. No.
LOS ANGELES COUNTY 20CCJP06535A)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
K.M., JR.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, D. Brett Bianco, Judge. Dismissed.
Elena S. Min, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, Kimberly Roura, Senior Deputy
County Counsel, and Stephen Watson, Deputy County Counsel,
for Plaintiff and Respondent.
K.M., Jr. (Father) appeals from juvenile dependency
jurisdiction and disposition orders concerning his daughter, Baby
Girl M. (Daughter). The jurisdiction finding was predicated on
evidence of domestic violence between Father and J.P. (Mother),
Daughter’s positive marijuana test at birth, and Mother’s history
of substance abuse and recent abuse of marijuana. The juvenile
court removed Daughter from her parents’ custody; ordered
Daughter suitably placed; denied Mother reunification services
pursuant to Welfare and Institutions Code section 361.5,
subdivisions (b)(10)-(11); and granted reunification services for
Father.
Father appealed the jurisdiction findings and disposition
order. The sole issue raised in his opening brief was whether the
Los Angeles County Department of Children and Family Services
(the Department) complied with its obligations under the Indian
Child Welfare Act (ICWA) and related California law.
Specifically, Father argued the juvenile court did not ask him, at
his first appearance in the case, whether Daughter was an Indian
child under ICWA and the Department did not follow up on
Father’s assertion on an Indian heritage questionnaire (an
“ICWA-20” form) that his grandmother was a member of a
federally recognized Indian tribe. Father complained the
Department did not contact any extended family members about
ICWA issues and he specifically faulted the Department for not
making an inquiry of his father and his grandmother.
After Father filed his opening brief, the parties submitted a
“Joint Application and Stipulation for Remand to the Superior
Court” to this court. The Department conceded in the joint
application that Father’s ICWA contentions were “well taken.”
Citing In re Brooke C. (2005) 127 Cal.App.4th 377, however, the
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parties recognized some courts have held there is no need to
reverse juvenile court orders to undertake proper ICWA inquiry
(and, where necessary, notice) because, in the parties’ words,
“[Daughter] is not in a permanent plan of any kind and, in
particular, parental rights have not been terminated.” The
parties therefore asked this court to remand the matter to the
juvenile court—without reversing or affirming any juvenile court
order—and to direct the juvenile court to order the Department
to investigate Father’s assertion of Indian heritage.
This court issued an order rejecting the parties’ joint
stipulation for remand. The order recognized the parties’
stipulation did not seek affirmance or reversal of the juvenile
court order from which the appeal was noticed and instead
sought a remand to the juvenile court with directions to order the
Department to comply with the requirements of ICWA and
related California law. The order invited the parties to address
two issues in their respondent’s and reply briefs: “(1) whether
this court may remand a matter to the juvenile court without
affirming or reversing, even conditionally, an appealed order—
and whether such a disposition would constitute an advisory
opinion; and (2) whether the appeal is now moot because [the
Department] has undertaken the ICWA investigation and, if
necessary, notice that [the Department] stipulates is required in
this case.”
The Department’s respondent’s brief conceded it had not
undertaken an appropriate ICWA inquiry at the time of the
juvenile court’s jurisdiction and disposition orders. But the
Department contended the appeal was moot because, in the
interim, it was “already engaged in the further inquiry that was
lacking in this case.” Specifically, a report filed in the juvenile
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court (of which this court took judicial notice) stated the
Department had interviewed Father, interviewed Father’s father
(who reported his mother, i.e., Father’s grandmother, was a
member of the Cherokee tribe), and learned Father’s
grandmother was deceased. The Department’s report also
indicated the Department had contacted Cherokee tribes
regarding the family’s ICWA status, and a minute order for a
later juvenile court hearing indicates the court did not at that
time find Daughter was an Indian child but ordered the parties to
keep the court apprised of any new information, including any
responses from the Cherokee tribes.
The Department’s respondent’s brief maintained that if the
matter were not dismissed as moot, this court could conditionally
affirm the jurisdiction and disposition orders or remand the
matter with directions even without affirming or reversing those
orders because “a bare remand does not constitute an advisory
opinion.”
Father’s reply brief emphasized the Department
acknowledged it “failed to fulfill its further inquiry obligations as
of the date of the disposition hearing” because it had not by then
“made any inquiry of the paternal grandfather or any attempt to
contact the paternal great-grandmother.” Father additionally
disputed the appeal was moot, arguing the Department delayed
too long “in conducting the requisite further inquiry” and the
inquiry it did conduct was not adequate (a) because there was no
evidence the Department interviewed other extended family
members to see if they had additional information about Father’s
grandmother and (b) because the Department’s reports were
insufficiently specific about what tribes the Department
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contacted and what information it provided during those
contacts.1
Two courts have recently held—in appeals from orders
terminating parental rights—that additional ICWA-related
inquiry or notice efforts by a juvenile court or child welfare
agency while a case is on appeal will not moot deficiencies in an
ICWA inquiry at the time a notice of appeal is filed. (In re E.V.
(2022) 80 Cal.App.5th 691; In re M.B. (2022) 80 Cal.App.5th 617;
but see In re Allison B. (2022) 79 Cal.App.5th 214 [appeal moot in
light of additional ICWA investigation during pendency of the
appeal].) Whatever the merits of these opinions, they do not
concern the procedural posture here: an ICWA appeal at the
jurisdiction and disposition stage where there will necessarily be
further dependency proceedings in the juvenile court (at which
continuing ICWA duties apply) and a basis for later appeal if for
some reason the remedial ICWA investigation the Department is
now undertaking falls short in Father’s view.
Put differently, all we could order in resolving this appeal
is that the Department and juvenile court fulfill their inquiry and
notice obligations under ICWA and related California law.
Because that is what the Department is already doing, and
because we are not in a position to micromanage that process in
this appeal (detailing, for instance, all those who must be
interviewed, what they must be asked, and what must be
included in any notice to tribes that is required), there is no
effective relief we can now provide. The juvenile court must
1
Father did not address the propriety of the parties’ initial
stipulation for a remand to the juvenile court without affirming
or reversing the order from which he appealed.
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direct that process, at least in the first instance. This appeal is
moot.2 (See, e.g., In re N.S. (2016) 245 Cal.App.4th 53, 60 [“[T]he
critical factor in considering whether a dependency appeal is
moot is whether the appellate court can provide any effective
relief if it finds reversible error”].)
2
The First District Court of Appeal has analyzed the issue
presented here in similar fashion, though affirming (apparently
on harmlessness grounds) rather than dismissing as moot. (In re
S.H. (2022) 82 Cal.App.5th 166, 177-180.) The Fourth District
Court of Appeal has also affirmed in a case in an analogous
procedural posture, though that court concluded it should vacate
the juvenile court’s finding that ICWA did not apply. (In re
Dominick D. (Aug. 23, 2022, E078370) ___ Cal.App.5th ___ [2022
WL 3592461].) We see no need to order any ICWA findings
vacated because ICWA-related obligations are continuing duties;
that means earlier ICWA-related findings are subject to change
and no order vacating an earlier finding is necessary here.
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DISPOSITION
The appeal is dismissed.
CERTIFIED FOR PUBLICATION
BAKER, J.
We concur:
RUBIN, P. J.
MOOR, J.
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