Filed 8/10/23 In re Duane D. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 TWO

In re DUANE D., JR., a Person 

Coming Under the Juvenile 

Court Law.

 B323312

 (Los Angeles County Super. 

 Ct. No. 22LJJP00186A)

 

LOS ANGELES COUNTY 

DEPARTMENT OF 

CHILDREN AND FAMILY 

SERVICES,

Plaintiff and Respondent,

v.

DUANE D.,

Defendant and Appellant.

APPEAL from orders of the Superior Court of Los Angeles 

County, Robin R. Kesler, Judge Pro Tempore. Affirmed in part, 

vacated and remanded in part for further proceedings.
2

Donna P. Chirco, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Dawyn R. Harrison, County Counsel, and Kim Nemoy, 

Assistant County Counsel, for Plaintiff and Respondent. 

* * * * * *

Duane D. (father) appeals the juvenile court’s order 

exerting dependency jurisdiction over his son as well as the

related dispositional order. Father does not challenge the 

substance of those orders; instead, he argues that the juvenile 

court’s implied finding that the Department of Children and 

Family Services (the Department) fulfilled its duty of further 

inquiry under the Indian Child Welfare Act (25 U.S.C. § 1901 et 

seq.; Welf. & Inst. Code, § 224 et seq.1) (ICWA) is incorrect. The 

Department concedes that father’s challenge has merit. As 

explained below, the appropriate remedy is to affirm the court’s 

jurisdictional and dispositional orders, but to vacate its implied 

finding of ICWA compliance and remand. 

FACTS AND PROCEDURAL BACKGROUND

Father shares one child with Anita A. (mother)—Duane D., 

Jr. (born July 2021).

I. The Petition and ICWA Findings at the Detention 

Hearing

After the Department received a referral that mother used 

methamphetamine, including in Duane’s presence, and became 

“violent,” it filed a petition in May 2022 asking the juvenile court 

to exert dependency jurisdiction over Duane. In an amended 

1 All further statutory references are to the Welfare and 

Institutions Code unless otherwise indicated. 
3

petition filed the next month, the Department alleged that 

jurisdiction was warranted due to (1) mother’s conduct in 

subjecting Duane’s half sister (whom mother had by another 

father) to severe physical abuse when the half sister was two 

years old, (2) mother’s substance abuse and father’s failure to 

protect Duane from that abuse, and (3) the parents’ history of 

domestic violence; the Department alleged that this conduct

“places [Duane] at risk of serious physical harm, damage, danger, 

and failure to protect,” thereby rendering jurisdiction appropriate 

under section 300, subdivisions (a), (b)(1) and (j).

Prior to filing the petition, the Department asked the 

parents whether Duane may have any Native American heritage. 

During an interview, mother stated she has Mohegan ancestry. 

In a “Parental Notification of Indian Status” form, mother 

reaffirmed that she “may have Indian ancestry,” and 

recommended that the Department contact maternal 

grandmother for additional information. Father also filled out 

that form, but indicated he had no Indian heritage. 

Based on these responses, the Department along with its 

petition filed an “Indian Child Inquiry” form stating that the 

Department had “reason to believe [Duane] is or may be an 

Indian Child.” Based on this information, the juvenile court at a 

May 2022 detention hearing found that it had no “reason to know 

that ICWA applies as to [f]ather,” but found that “there may be 

some . . . Native American/Indian heritage in . . . mother’s 

background” and ordered the Department “to investigate” that 

claim.
4

II. The Department’s Further Inquiries of the Parents 

and Their Families

The Department conducted several interviews of mother’s 

and father’s families, and learned that:

● Mother has 10 siblings or half siblings—eight on her 

mother’s side and two on her father’s side—with whom she is in 

contact and who are a “support system” for her. She reported 

that maternal grandfather lives in St. Louis, Missouri, and she 

does not speak to him. 

● Maternal grandmother reported that her family has

both Mohegan and Cherokee heritage. 

● Father has three siblings and is in contact with them, 

but he is not in contact with paternal grandfather. 

● Paternal grandmother said the family has Iroquois 

and Cherokee heritage. 

III. The Department’s Further Inquiries of Pertinent 

Tribes

Based on the information obtained from the parents and 

their families, the Department in June 2022 sent inquiries—but 

not formal notices—to (1) three Cherokee tribes (namely, the 

Cherokee Nation, the United Keetoowah Band of Cherokee 

Indians, and the Eastern Band of Cherokee Indians), (2) the 

Mohegan Tribe, (3) two Iroquois tribes (namely, the Tuscarora 

Nation and the Saint Regis Mohawk Tribe), and (4) the Bureau of 

Indian Affairs (BIA). Although the inquiries themselves are not 

in the record, the return receipts are as well as the tribes’ 

responsive letters stating: 

● As to the Cherokee Nation, the information provided 

by the Department was “not complete” and the tribe needed 

additional information—namely, the middle name and date of 
5

birth for maternal grandfather—“[i]n order to verify Cherokee 

heritage.”

● As to the United Keetoowah Band of Cherokee 

Indians, the tribe was “unable to establish . . . heritage” “[b]ased 

on the information . . . provided.” 

● As to the Eastern Band of Cherokee Indians, Duane 

“is neither registered nor eligible to register as a member of th[e] 

tribe” “based on the information received.”

● As to the Mohegan Tribe, it had “no record” of the 

family members identified. 

● As to the Tuscarora Nation, enrollment “follows the 

mother’s lineage (matrilineal)” and mother “is not an enrolled 

member” so Duane also is “not . . . enrolled” and is “not eligible 

for enrollment.” 

● As to the Saint Regis Mohawk Tribe, the tribe “was 

unable to find any link of tribal affiliation” after it “researched 

the names of the biological parents, as well as other listed 

relatives.” 

IV. The Department’s Further Inquiries and the Tribe’s 

Response 

To gather the information that the Cherokee Nation 

requested regarding maternal grandfather, the Department

“attempted to inquire” of mother, but was “unable to receive 

further information from” her.2 Maternal grandmother told the 

Department that she has not seen or spoken to maternal 

2 This language makes it unclear whether (1) mother did not 

respond at all to the Department’s inquiry, or (2) mother 

responded, but denied knowledge of maternal grandfather’s 

middle name and date of birth. 
6

grandfather (her ex-husband) for many years, and did not recall 

his middle name or date of birth. 

The Department informally transmitted this information to 

the Cherokee Nation, which responded that “none of the names 

provided for direct biological relatives can be found” and that 

“[u]nknown relations are not researched.” It concluded that 

Duane is “not an ‘Indian child’ [for purposes of ICWA] in relation 

to the Cherokee Nation,” but that “[a]ny incorrect or omitted 

information could invalidate this determination.” 

V. The Jurisdictional and Dispositional Orders

At the jurisdictional hearing in August 2022, the juvenile 

court sustained the allegations under subdivisions (b)(1) and (j) of 

section 300 regarding the physical abuse of Duane’s half sibling,

mother’s substance abuse, and father’s failure to protect Duane

from that abuse; the court dismissed the allegations under 

subdivisions (a) and (b) regarding the parents’ domestic violence. 

At a contested dispositional hearing in September 2022, the 

juvenile court removed Duane from his parents and ordered 

reunification services. The minute order does not contain any 

further ICWA findings; the court also made no oral ICWA finding 

at the hearing other than to comment that it “know[s] the 

Department is given [sic] notice for American Indian heritage. 

I’m not sure, though I saw a notice to the Iroquois.”

VI. Father’s Appeal

Father filed a timely appeal.

VII. Post-Appeal Events3

In March 2023, the juvenile court (1) ordered the 

Department to “interview” or “attempt to interview all extended 

3 We grant the Department’s request for judicial notice. 

(Evid. Code, §§ 452, subd. (c), 459.)
7

family members about whether” Duane is an Indian child, and to 

“document all its efforts,” and (2) stated that it would “review[] 

the report” and “make a finding regarding the ICWA’s 

applicability.” In early May 2023, the Department filed a report 

indicating that (1) it spoke to one of mother’s siblings, who 

relayed that mother’s family has Choctaw, “Barefoot,” and 

Cherokee heritage; (2) it spoke to another of mother’s siblings, 

who reported that the family’s Mohegan and Cherokee heritage 

derive from the maternal great grandmother, who was dead; and 

(3) it spoke to maternal grandmother who confirmed maternal 

great grandmother’s death; all three relatives refused to provide 

contact information for other maternal relatives. The 

Department’s report also indicated that it spoke with paternal 

grandmother, who confirmed possible Iroquois, Cherokee, and 

Mohawk heritage but refused to give contact information 

regarding paternal grandfather or other paternal relatives. A 

few days later, the juvenile court held a six-month status review 

hearing, and ordered the Department to “notice all appropriate 

tribes and the [Bureau of Indian Affairs]” prior to the 12-month 

status review hearing set for November 2023.

DISCUSSION

Father argues that the Department did not comply with its 

duties under ICWA; specifically, he asserts that (1) the 

Department did not comply with its duty of further inquiry, and 

(2) the juvenile court erred in making an implied finding at the 

dispositional hearing that ICWA does not apply because the 

Department’s communications with the tribes were not filed with 

the court for it to review before making that finding. Father asks 

us to “reverse” the court’s “orders finding that [the Department] 

satisfied its duty of inquiry” and to “remand” for the court to 
8

make a “proper finding under” ICWA. The Department concedes 

that father’s “contentions have merit,” but nevertheless has 

moved this Court to dismiss the appeal as moot in light of the 

post-appeal events enumerated above.

These competing arguments present two issues: (1) Was 

there error under ICWA, and (2) if so, what is the appropriate 

remedy at this point in time?

I. Was There ICWA Error?

A. Pertinent law

ICWA was enacted “out of concern that ‘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 “aims to keep Indian children connected to 

Indian families.” (Haaland v. Brackeen (2023) __ U.S. __, __ [143 

S.Ct. 1609, 1623, 216 L.Ed.2d 254].) To that end, under ICWA 

and the corresponding statutes the California Legislature 

enacted to implement it (§§ 224-224.6), a juvenile court and the 

Department have duties aimed at assessing whether a child in a 

dependency action is an “Indian child.” (§§ 224.2, 224.3.) An 

“Indian child” is a child who (1) is “a member of an Indian tribe,” 

or (2) “is eligible for membership in an Indian tribe and is the 

biological child of a member of an Indian tribe.” (25 U.S.C. § 

1903(4); § 224.1, subd. (a) [adopting federal law definition].) By 

its terms, this definition turns “‘on the child’s political affiliation 

with a federally recognized Indian Tribe,’” not “necessarily” “the 

child’s race, ancestry, or ‘blood quantum.’” (In re Austin J. (2020) 

47 Cal.App.5th 870, 882 (Austin J.), quoting 81 Fed.Reg. 38801-

38802 (June 14, 2016).)

The Department and juvenile court have “three distinct 

duties” under ICWA. (In re D.S. (2020) 46 Cal.App.5th 1041, 
9

1052 (D.S.); Austin J., supra, 47 Cal.App.5th at pp. 883-

884 [same].) The initial “duty” of the Department and the court 

is “to inquire whether [a] child is an Indian child.” (§ 224.2, 

subds. (a) & (b).) The Department discharges this duty by 

“asking” family members “whether the child is, or may be, an 

Indian child.” (Id., subd. (b).) This includes inquiring of not only 

the child’s parents, but also others, including but not limited to, 

“extended family members.” (Ibid.) For its part, the juvenile 

court is required, “[a]t the first appearance” in a dependency 

case, to “ask each participant present” “whether the participant 

knows or has reason to know that the child is an Indian child.” 

(Id., subd. (c).)

The second duty is the duty of the Department or the 

juvenile court to “make further inquiry regarding the possible 

Indian status of the child.” (§ 224.2, subd. (e).) This duty is 

triggered if the Department or court “has reason to believe that 

an Indian child is involved” (ibid.), and, once triggered, obligates 

the Department to conduct a “more robust investigation” and to 

undertake “‘meaningful effort’” through further interviews aimed 

at gathering information, through contacting the BIA and state 

department of social services for assistance, and through 

contacting the relevant Indian tribe(s). (Id., subd. (e)(2); In re 

M.M. (2022) 81 Cal.App.5th 61, 70, review granted Oct. 12, 2022, 

S276099; In re K.T. (2022) 76 Cal.App.5th 732, 744 (K.T.); In re 

D.F. (2020) 55 Cal.App.5th 558, 566-567.) The Department or 

court “has reason to believe that an Indian child is involved” if 

the Department or court “has information suggesting that either 

the parent of the child or the child is a member or may be eligible 

for membership in an Indian tribe,” including information 

“indicat[ing]” but not “establish[ing]” the existence of any of the 
10

six circumstances satisfying the “reason to know” a child is an 

Indian child, detailed next. (§ 224.2, subd. (e)(1).) 

The third duty is the duty to notify the relevant Indian 

tribe(s). (§ 224.3, subd. (a); 25 U.S.C. § 1912(a).) This duty is 

triggered if the Department or the court “knows or has reason to 

know . . . that an Indian child is involved” based on the inquiries 

performed under the second duty. (§ 224.3, subd. (a).) The 

Department or juvenile court has “reason to know a child 

involved in a proceeding is an Indian child” in one of six 

statutorily defined circumstances—namely, when (1) “[a] person 

having an interest in the child . . . informs the court that the 

child is an Indian child” (§ 224.2, subd. (d)(1)); (2) “[a]ny 

participant in the proceeding . . . informs the court that it has 

discovered information indicating that the child is an Indian 

child” (id., subd. (d)(3)); (3) “[t]he child . . . gives the court reason 

to know that the child is an Indian child” (id., subd. (d)(4)); (4) 

the child or the parents reside, or are domiciled, “on a reservation 

or in an Alaskan Native village” (id., subd. (d)(2)); (5) “the child is 

or has been a ward of a tribal court” (id., subd. (d)(5)); or (6) 

“either parent or the child possess an identification card 

indicating membership or citizenship in an Indian tribe” (id., 

subd. (d)(6)).

In assessing whether ICWA has been violated, we review 

any questions of law de novo, but review the court’s ICWA 

findings for substantial evidence. (Dwayne P. v. Superior 

Court (2002) 103 Cal.App.4th 247, 254; In re Rebecca R. (2006) 

143 Cal.App.4th 1426, 1430.) 

B. Analysis

The parties seem to agree that the Department’s duty of 

further inquiry under ICWA was triggered and that the 
11

Department did not meaningfully discharge that duty by the time 

of the dispositional order that is before us on appeal. We also

agree.

The Department’s duty of further inquiry was certainly 

triggered. Based on mother’s initial interview, the Department 

reported prior to the detention hearing that “Native American 

Indian ancestry does or may apply.” (See In re Rylei S. (2022) 81 

Cal.App.5th 309, 319 [agency’s report that ICWA “‘does or may 

apply’” indicates it had reason to believe an Indian child may be 

involved, triggering duty of further inquiry].) Although the 

juvenile court initially found—based on father’s initial disavowal 

of any Indian heritage—that it had no “reason to know that 

ICWA applies as to [f]ather,” the Department’s interviews of 

father’s relatives uncovered reason to believe that father also 

may have Indian heritage. (In re Josiah T. (2021) 71 Cal.App.5th 

388, 404 [paternal grandmother’s statement that she had 

Cherokee ancestry triggered duty of further inquiry]; In re T.G. 

(2020) 58 Cal.App.5th 275, 292 [mother’s statement indicating 

possible Indian ancestry through her paternal grandfather 

triggered duty of further inquiry]; In re Dominic F. (2020) 55 

Cal.App.5th 558, 569 (Dominic F.) [further inquiry required 

where court orders agency to “‘look into it’”].) 

Yet the Department did not meaningfully satisfy its duty of 

further inquiry. Contrary to what father argues, the 

Department’s inquiry to the BIA and the six different tribes 

identified by the maternal and paternal relatives was not the 

Department discharging its duty to give formal notice to the 

tribes (that is, the third duty under ICWA); rather, it was the 

Department informally contacting the tribes as part of its duty of 

further inquiry (that is, the second duty under ICWA). Thus, the 
12

Department satisfied a portion of its duty of further inquiry when 

it contacted the BIA and the tribes. Where the Department fell 

short, however, was in its further interviews of the maternal and 

paternal relatives. The Cherokee Nation informed the 

Department that it needed maternal grandfather’s middle name 

and date of birth in order to determine Duane’s Cherokee 

heritage, but all the Department did was ask mother and 

maternal grandmother; it did not try to ask any of mother’s other 

10 siblings and half siblings who were part of her “support 

system” and did not even use maternal grandfather’s name and 

residence in St. Louis to run a simple online search for the 

information requested by the Cherokee Nation. This was not a 

“‘meaningful effort.’” (K.T., supra, 76 Cal.App.5th at p. 744.) The 

Department also knew that Duane may have Iroquois and 

Cherokee heritage through father, but did not make any effort to 

contact paternal grandfather or any of father’s three siblings. 

(See K.T., at pp. 743-744 [agency failed to satisfy duty of further

inquiry by failing to, among other things, contact grandparents 

and aunt].) Again, the Department’s limited interviews failed to 

discharge its duty of further inquiry. 

Although the juvenile court did not expressly find, as part 

of its dispositional order, that ICWA did not apply to Duane, we 

infer an implied finding to that effect because the court did not 

explicitly order any further inquiry or the giving of formal notice 

to the tribes, leaving the Department nothing further to do. 

Although implied ICWA findings are generally permissible (In re 

Asia L. (2003) 107 Cal.App.4th 498, 506), father urges us not to 

rely on the court’s implied finding in this case because the 

Department never filed the inquiries it sent to the tribes with the 

juvenile court, thereby depriving the court of the ability to assess 
13

whether the Department discharged its duty to give notice to the 

tribes. To be sure, father is correct that an implied finding that 

the Department complied with its duty to give notice is 

inherently defective if the Department does not provide the 

notices it sent to the tribe to the juvenile court. (Asia L., at pp. 

507-509.) But the Department here was not contacting the tribes 

in order to fulfill its duty to give formal notice; it was conducting 

the informal inquiry that is part of its duty of further inquiry.

Although both duties are similar (and hence “sometimes 

conflated” (In re A.M. (2020) 47 Cal.App.5th 303, 315),

4 they are 

distinct duties (compare § 224.2, subd. (e)(2)(C) with § 224.3, 

subds. (a)(1) & (c); In re J.S. (2021) 62 Cal.App.5th 678, 686-688; 

Dominic F., supra, 55 Cal.App.5th at p. 570; D.S., supra, 46 

Cal.App.5th at p. 1049 [“The sharing of information with tribes at 

this inquiry stage is distinct from formal ICWA notice . . . ”]). 

Here, the Department never developed the “reason to know” 

Duane was an Indian child that would trigger the duty to give 

notice; as a result, its inquiry of the tribes was part of its further 

inquiry and the cases invalidating implied ICWA findings due to

the failure to file the formal notices given to tribes are inapt. 

Moreover, father’s reliance on In re Louis S. (2004) 117 

Cal.App.4th 622, which applied a “‘reason to believe’” standard as 

the trigger for the duty to give notice, is misplaced because the 

trigger for giving notice has since been tightened to “reason to 

4 The danger of conflation is even greater where, as here, the 

Department mistakenly uses the word “notices” in its reports to 

describe its informal communications with the tribes. Read in 

context, however, it is clear the Department was not referring to 

the formal notice required when the Department knows or has 

reason to know an Indian child is involved. 
14

know.” (See D.S., at pp. 1048-1051 [noting enactments and 

amendments].) 

Because the Department’s duty of further inquiry was 

inadequate, its implied ICWA finding as part of the dispositional 

order is not supported by substantial evidence and must be 

vacated. (K.T., supra, 76 Cal.App.5th at p. 744 [because agency 

did not conduct “adequate[]” further investigation, the court 

“should not have found that ICWA did not apply”]; D.S., supra, 

46 Cal.App.5th at p. 1050 [court may make finding that ICWA 

does not apply only if agency’s further inquiry was “‘proper and 

adequate’” but no “reason to know” the child is an Indian child 

was discovered]; § 224.2, subd. (i)(2) [same].) 

II. What Is the Appropriate Remedy?

In light of our analysis, the next question we confront is: 

What is the appropriate remedy when an appellate court 

determines, on appeal from an order prior to termination of 

parental rights, that the ICWA duty of further inquiry has not 

been satisfied?5

By our count, the California appellate courts have thus far 

provided five different rules in answering this question when it 

comes to the duty of initial inquiry. The first rule is to affirm the 

juvenile court’s jurisdictional and dispositional findings, to vacate 

the court’s finding that ICWA does not apply, and to remand for 

the Department to comply with its ICWA duties. (In re Dominick 

5 This is a different question than what the remedy is when 

the appellate court determines, on appeal from an order 

terminating parental rights, that the ICWA duty has not been

satisfied. The California appellate courts are similarly fractured 

about how to answer this question as well, but we need not delve 

into that morass here.
15

D. (2022) 82 Cal.App.5th 560, 563-564, 567-568.) The second rule

is to affirm the juvenile court’s findings in their entirety, on the 

rationale that the issue of ICWA compliance remains before the 

juvenile court at all times and the Department will have time to 

correct any deficiencies. (In re T.R. (2023) 87 Cal.App.5th 1140, 

1154; In re S.H. (2022) 82 Cal.App.5th 166, 171, 173, 175-179.) 

The third rule is to dismiss the appeal as moot, on the theory that 

“no effective relief” may be granted because any ICWA

deficiencies can be cured in future proceedings. (In re Baby Girl 

M. (2022) 83 Cal.App.5th 635, 638-639 & fn. 2.) The fourth rule

is to treat an appeal from a finding that ICWA does not apply as 

premature (and hence not yet “ripe”) because such a finding can 

necessarily be altered prior to the termination of parental rights. 

(J.J. v. Superior Court (2022) 81 Cal.App.5th 447, 461.) And the 

fifth and (thus far) final rule is to construe the appeal as a writ 

petition, and to evaluate the merits of the Department’s 

compliance with ICWA. (D.S. v. Superior Court (2023) 88 

Cal.App.5th 383, 386, 388-389, 390-391.)

We conclude that it is proper to apply the first rule here—

that is, to affirm the juvenile court’s jurisdictional and 

dispositional findings (because father does not attack those 

findings), to vacate the juvenile court’s finding that ICWA does 

not apply (because this includes an “implied finding” that the 

Department complied with its duty of further inquiry which is 

not supported by substantial evidence), and to remand for the 

Department to continue to comply with that duty. (See In re 

Emma C. (March 16, 2023, B318281) [nonpub. opn.] [this 

Division applied the first rule in an initial inquiry case]; see also 

In re E.C. (2022) 85 Cal.App.5th 123, 155 [for purposes of

prejudice, “distinction” between “deficiency with the duty of 
16

initial inquiry” and “failure to conduct a further inquiry” “does 

not result in a different outcome”].) In our view, to unequivocally 

affirm leaves intact a judicial finding of ICWA compliance that is 

not—as the parties concede here—supported by substantial 

evidence; that the juvenile court may make a different finding 

regarding the Department’s compliance with ICWA at some 

different and later point in time does not, in our view, render the 

finding before us now sufficiently valid to affirm (under the 

second rule), or moot (under the third rule), or unripe (under the 

fourth rule). And where a dispositional order is separately 

appealable, we see no point in severing the court’s ICWA finding 

and construing just part of the appeal as a petition for writ 

review (under the fifth rule). 

We also conclude that the appeal is not moot. The 

Department urges that the appeal is moot because the ICWA 

finding father attacks is from a dispositional order, and some 

courts have found such appeals to be moot; as explained above, 

we have opted not to follow that precedent. The appeal is also 

not moot on the theory that the Department has, since this 

appeal was filed, fully discharged its duties of further inquiry and 

notice. It has not. Even the Department’s post-appeal efforts do 

not reveal that it has attempted to contact all of mothers siblings 

or half siblings regarding the missing information regarding 

maternal grandfather, that it has undertaken other searches to 

track him down, that it has attempted to contact paternal 

grandfather or father’s siblings, or that it has undertaken efforts 

to informally contact the two new possible tribes that have 
17

popped up—namely, the “Barefoot” and Choctaw tribes.6 And 

although the juvenile court’s post-appeal order requiring further 

inquiry by the Department and specifying that it will make an 

ICWA finding at the 12-month status review hearing indicates 

the court’s willingness to revisit the ICWA issue, that order does 

not expressly state that the court made no ICWA finding at the 

dispositional hearing or vacates that finding. And even if it were 

moot, we would exercise our discretion to resolve this appeal to 

provide further guidance on what the Department has yet to do 

before it has discharged its duties under ICWA.

6 We accordingly deny the Department’s motion to dismiss 

this appeal as moot.

We note that the reference to “Barefoot” tribal heritage in 

the Department’s report either is not accurate or is not to a 

recognized tribe. 
18

DISPOSITION

The jurisdictional and dispositional orders are affirmed in 

part; the juvenile court’s implicit finding that Duane is not an 

“Indian child” is vacated, and the matter is remanded for further 

proceedings in which (1) the Department shall make reasonable 

efforts to inquire of all known and available family members—

including maternal and paternal aunts and uncles, maternal 

grandfather, and paternal grandfather—whether Duane is or 

may be an Indian child; (2) the Department shall document these 

efforts to the juvenile court; (3) the juvenile court shall make an 

express finding regarding ICWA’s applicability; and (4) 

depending on the court’s finding, the court and the Department 

shall proceed in accordance with sections 224.2 and 224.3.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

HOFFSTADT

We concur:

_________________________, P. J.

LUI

_________________________, J.

ASHMANN-GERST