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 

Coming Under the Juvenile Court 

Law.

___________________________________

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

K.M., JR.,

Defendant and Appellant.

 B311176

 (Los Angeles County

 Super. Ct. No.

20CCJP06535A)

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.
2

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 
3

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 
4

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 
5

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.
6

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.
7

DISPOSITION

The appeal is dismissed.

CERTIFIED FOR PUBLICATION

BAKER, J.

We concur:

RUBIN, P. J.

MOOR, J.