In re Savannah K. CA2/7 ( 2023 )

Filed 3/9/23 In re Savannah K. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re SAVANNAH K., et al., B315009
Persons Coming Under the
Juvenile Court Law. (Los Angeles County
________________________________ Super. Ct. No.
21CCJP01678)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
RASHAD K.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Robin R. Kesler, Juvenile Court Referee. Dismissed.
Emery El Habiby and Paul Swiller, under appointment by
the Court of Appeal, for Defendant and Appellant Rashad K.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Navid Nakhjavani, Principal
Deputy County Counsel, for Plaintiff and Respondent.
_____________________________
INTRODUCTION
Rashad K. appeals from the juvenile court’s July 8, 2021
jurisdiction findings and disposition orders. He argues the court
erred in denying his request for custody of his children, 13-year-
old Savannah and 12-year-old Joshua, under Welfare and
Institutions Code section 361.2, subdivision (a), after the court
removed them from the custody of their mother, Christina W.1
Several weeks after the juvenile court denied Rashad’s
request for custody of his children under section 361.2, the
Department filed a subsequent petition under section 342
alleging Rashad physically abused his girlfriend and her one-
year-old child. On October 15, 2021 the juvenile court sustained
the subsequent petition, declared Savannah and Joshua
dependent children of the court, and removed them from Rashad.
Rashad appealed from that order, but we dismissed his appeal
after his appellate counsel filed a brief stating there were no
arguable issues. (See In re Phoenix H. (2009) 47 Cal.4th 835,
844.) Because the October 15, 2021 order sustaining the petition
and removing Rashad’s children from him is final, we cannot
provide Rashad any effective relief in this appeal. Therefore, we
1 Christina is not a party to this appeal. Undesignated
statutory references are to the Welfare and Institutions Code.
2
dismiss Rashad’s appeal from the July 8, 2021 order denying his
request for custody under section 361.2.
Rashad also argues the Department and the juvenile court
failed to comply with the inquiry and notice provisions of the
Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901et seq.) and related California law. While this appeal was
pending, however, the Department conducted a further inquiry
into whether Savannah and Joshua may be Indian children, and
the juvenile court, based on the Department’s additional
investigation, found they are not. Because the parties agree
these developments moot Rashad’s challenge to the court’s prior
ICWA findings, we also dismiss this part of his appeal.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Juvenile Court Detains Savannah and Joshua,
Sustains a Petition Under Section 300, and Denies
Rashad’s Request for Custody Under Section 361.2
In March 2021 the Department received a referral alleging
Christina was neglecting Savannah, Joshua, and their four half-
siblings. The referral stated the children were living with a
maternal aunt who was unable to care and financially provide for
them. The maternal aunt told a social worker that Christina
(who had custody of Savannah and Joshua) left the children in
the care of a woman the family did not know, that the maternal
aunt took the children from the woman eight months ago, and
that Christina had visited the children only three times.
After an investigation the Department filed a petition
under section 300, subdivisions (a), (b)(1), and (j), alleging
Christina physically abused Savannah and Joshua, made an
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inappropriate plan for their care and supervision, and abused
and neglected Savannah and Joshua’s siblings. At the detention
hearing in April 2021 the court found the Department had made
a prima facie showing Savannah and Joshua were persons
described by section 300 and detained them from Christina and
Rashad.
At a combined jurisdiction and disposition hearing on
July 8, 2021 the juvenile court sustained the petition, declared
Savannah and Joshua dependent children of the court, and
removed them from Christina and Rashad. The court ordered
reunification services and monitored visitation for both parents.
The court denied Rashad’s request under section 361.2 to place
Savannah and Joshua with him as a non-offending, noncustodial
parent. The court found that Rashad did not have a relationship
with his children and that the children reported they were
uncomfortable in his care. The court also found that, after
Rashad visited the children in 2020, he left the children with
Christina, even though she was leaving the children alone for
extended periods of time. Finally, the court found that relatives
reported Rashad had mental health issues, that Rashad called
and “cussed out” relatives who were caring for the children, and
that in 2019 Rashad said he did not know where Christina was.
Rashad timely appealed from the jurisdiction findings and
disposition orders.
B. The Juvenile Court Sustains a Subsequent Petition
and Removes Savannah and Joshua from Rashad
Several weeks after the disposition hearing, the
Department filed a subsequent petition under section 342 (which
the Department later amended) alleging Rashad was violent
4
toward his girlfriend and her one-year-old son. On October 15,
2021 the court sustained the subsequent petition, finding true
allegations that Rashad kicked the child in the stomach, that he
failed to protect the child from his girlfriend’s substance abuse,
that his criminal record in four states and history of lying to law
enforcement put his children at risk of physical harm, and that
he left his children in a motel room with Christina despite her
substance abuse issues and inability to care for the children.2
The court removed Savannah and Joshua from Rashad and
Christina.
Rashad timely appealed from the juvenile court’s
jurisdiction findings on the sustained petition under section 342
and the court’s disposition orders. We dismissed that appeal
after Rashad’s appointed counsel advised us in writing there
were no arguable issues and Rashad failed to file a supplemental
brief. (In re S.K., B316929, dism. Feb. 1, 2023; see In re
Phoenix H., supra, 47 Cal.4th at p. 844.)
DISCUSSION
A. The Appeal from the Order Denying Rashad’s Request
for Custody Under Section 361.2 Is Moot
1. Applicable Law
“Juvenile dependency appeals raise unique mootness
concerns because the parties have multiple opportunities to
appeal orders even as the proceedings in the juvenile court
proceed.” (In re N.S. (2016) 245 Cal.App.4th 53, 59.) “‘[T]he
2 We take judicial notice of the juvenile court’s October 15,
2021 order. (See Evid. Code, §§ 452, subd. (d), 459.)
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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.’” (In re Rashad D. (2021)
63 Cal.App.5th 156, 163; see In re D.P. (2023) 14 Cal.5th 266,
275.) An “appeal may become moot where subsequent events,
including orders by the juvenile court, render it impossible for the
reviewing court to grant effective relief.” (Rashad D., at p. 163.)
“A reviewing court must ‘“decide on a case-by-case basis whether
subsequent events in a juvenile dependency matter make a case
moot and whether [its] decision would affect the outcome in a
subsequent proceeding.’’’” (In re D.P., at p. 276.) “‘When no
effective relief can be granted, an appeal is moot and will be
dismissed.’” (In re J.A. (2020) 47 Cal.App.5th 1036, 1050-1051.)
2. We Cannot Grant Rashad Any Effective Relief
in His Appeal from the Order Denying His
Request for Custody Under Section 361.2
Rashad argues substantial evidence did not support the
juvenile court’s July 8, 2021 finding under section 361.2,
subdivision (a), that placing Savannah and Joshua with Rashad
would be detrimental to their safety, protection, or physical or
emotional well-being. As discussed, however, on October 15,
2021 the juvenile court removed Savannah and Joshua from
Rashad after the court sustained a subsequent petition alleging
Rashad physically abused his girlfriend and her son. Thus, even
if we were to reverse the juvenile court’s July 8, 2021 order
denying his request for custody under section 361.2, subdivision
(a), the court’s October 15, 2021 now-final order removing
Savannah and Joshua from Rashad would preclude placing the
children with him. Because we cannot provide Rashad any
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effective relief, his appeal from the July 8, 2021 order denying his
request for custody of the children is moot.
B. The Appeal from the Juvenile Court’s ICWA Findings
Is Moot
“ICWA and governing federal regulations (25 C.F.R.
§ 23.101 et seq. (2022)) set minimal procedural protections for
state courts to follow before removing Indian children and placing
them in foster care or adoptive homes.”3 (In re M.B. (2022)
80 Cal.App.5th 617, 625; see In re Rylei S. (2022) 81 Cal.App.5th
309, 316.) ICWA provides that, “where the court knows or has
reason to know that an Indian child is involved, the party seeking
the foster care placement of, or termination of parental rights to,
an Indian child shall notify the parent or Indian custodian and
the Indian child’s tribe . . . of the pending proceedings and of
their right of intervention.” (25 U.S.C. § 1912(a); see In re
Isaiah W. (2016) 1 Cal.5th 1, 5; In re J.C. (2022) 77 Cal.App.5th
70, 76.) ICWA’s notice requirements “facilitate a determination
of whether the child is an Indian child under ICWA” and ensure
an Indian tribe “is aware of its right to intervene in or, where
appropriate, exercise jurisdiction over a child custody proceeding
involving an Indian child.” (Isaiah W., at p. 8; see In re
Antonio R. (2022) 76 Cal.App.5th 421, 429.)
“To ensure Indian tribes may exercise their rights in
dependency proceedings as guaranteed by ICWA and related
3 “‘ICWA defines an “Indian child” as “any unmarried person
who is under age eighteen and is either (a) a member of an
Indian tribe or (b) is eligible for membership in an Indian tribe
and is the biological child of a member of an Indian tribe.”’”
(In re H.V. (2022) 75 Cal.App.5th 433, 437; see 25 U.S.C.
§ 1903(4); § 224.1, subd. (a).)
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state law, investigation of a family member’s belief a child may
have Indian ancestry must be undertaken and notice provided to
the appropriate tribes.” (In re Rylei S., supra, 81 Cal.App.5th at
p. 316; see In re J.S. (2021) 62 Cal.App.5th 678, 688.) Section
224.2, subdivision (a), provides that courts and child protective
agencies “‘have an affirmative and continuing duty to inquire
whether a child for whom a petition under Section 300 . . . is to
be, or has been, filed is or may be an Indian child.’” (See In re
Isaiah W., supra, 1 Cal.5th at p. 9; In re H.V. (2022)
75 Cal.App.5th 433, 437.) Section 224.2, subdivision (b), requires
the child protective agency to ask the child, parents, legal
guardian, and “extended family members,” among others,
“whether the child is, or may be, an Indian child.” (In re J.C.,
supra, 77 Cal.App.5th at p. 77; see In re A.C. (2022)
86 Cal.App.5th 130, 132; In re Y.W. (2021) 70 Cal.App.5th 542,
552; Cal. Rules of Court, rule 5.481(a)(1).)
“The duty to develop information concerning whether a
child is an Indian child rests with the court and the Department,
not the parents or members of the parents’ families.” (In re
Antonio R., supra, 76 Cal.App.5th at p. 430; see In re K.R. (2018)
20 Cal.App.5th 701, 706 [the juvenile court “and the agency must
act upon information received from any source, not just the
parent [citations], and the parent’s failure to object in the
juvenile court to deficiencies in the investigation or noticing does
not preclude the parent from raising the issue for the first time
on appeal”].) “Thus, a juvenile court errs in making a finding
ICWA does not apply to the proceedings without first ensuring
that the Department has made an adequate inquiry under ICWA
and California law, and if necessary, the court must continue the
proceedings and order the Department to fulfill its
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responsibilities.” (In re Antonio R., at p. 431; see § 224.2,
subd. (i)(2).)
In the Indian Child Inquiry Attachment to the petition
(Judicial Council Forms, form ICWA-010(A)), the Department
stated that on April 8, 2021 a social worker questioned a
maternal aunt, Colinda, and that Colinda gave the social worker
no reason to believe Savannah and Joshua were or may be Indian
children. Christina and Rashad completed parental notification
of Indian status forms (Judicial Council Forms, form ICWA-020),
in which they indicated they had no known Indian ancestry. At
the detention hearing the juvenile court found there was no
reason to believe Savannah and Joshua were Indian children
under ICWA. At first, this was the extent of the Department’s
inquiry into the children’s possible Indian ancestry.
The Department concedes its initial inquiry was
inadequate because the Department “failed to make initial
inquiry of . . . available relatives” other than Christina, Rashad,
and Colinda. (See In re Rylei S., supra, 81 Cal.App.5th at p. 81
[“[r]egardless of a parent’s response concerning his or her possible
Indian ancestry on the ICWA-020 Parental Notification of Indian
Status form or when questioned by the court at the initial
appearance, . . . section 224.2, subdivision (b), requires the
agency to ask the child, the parents, extended family members
and others who have an interest in the child whether the child is,
or may be, an Indian child”].) During its investigation into the
allegations of the petition, the Department interviewed several
extended family members, including two paternal great aunts
and a maternal uncle, but did not ask them about Savannah and
Joshua’s possible Indian ancestry.
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But on June 14, 2022 the juvenile court ordered the
Department to make additional inquiry into the children’s Indian
status. We subsequently granted the Department’s motion for
judicial notice of the juvenile court’s June 14, 2022 order
directing the Department to “interview the mother, the father,
and all available relatives to ascertain whether the family has
any Indian ancestry” and to file “a detailed report” of its
interviews. The Department complied with the juvenile court’s
order, and on July 13, 2022 and September 26, 2022 filed reports
detailing its supplemental investigation.
On February 21, 2023 the juvenile court, having read the
two reports, found ICWA did not apply.4 That same day, the
parties jointly reported to this court that the Department had
“conducted additional inquiry of extended family members about
the ICWA and documented its interviews and efforts to interview
the parents,” that the Department “subsequently provided
additional information regarding the ICWA” to the juvenile court,
and that the court found on February 21, 2023 ICWA did not
apply. Counsel for Rashad stated “the Department has complied
with the juvenile court’s order.”
At this point, we cannot grant Rashad any effective relief in
this appeal regarding the Department’s and the juvenile court’s
compliance with ICWA. The Department has conducted an
additional inquiry, which the juvenile court has found was
sufficient. If Rashad believes that the Department’s
supplemental inquiry was insufficient or that the juvenile court
erred on February 21, 2023 in finding ICWA does not apply,
Rashad’s remedy is to appeal from that order. In the meantime,
4 We take judicial notice of the juvenile court’s February 21,
2023 order. (See Evid. Code, §§ 452, subd. (d), 459.)
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this appeal challenging the juvenile court’s prior ICWA findings
is moot.
DISPOSITION
The appeal is dismissed.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
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