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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re SAVANNAH K

. , et al., Person s Coming Under the Juven ile Court Law.

________________________________
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES

,
Plaintiff and Respondent,

v.

RASHAD K.

,

Defendant and Appellant

. B3 1 5009

(Los Angeles County Super. Ct. No. 21C CJP01678 )

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.2 Dawyn R. Har rison, 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 j urisdiction findings and disposition order s. 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 36 1 .2 , subdivision (a), after the court

rem oved 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 physica l ly abuse d his girlfriend and her one

year

- old child

. O n October 15, 2021 t he juvenile court sustained
th e subsequent petition, declared Savannah and Joshua dependent children of the court, and removed them from Rashad. Rashad appealed from that order, b ut 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

prov ide Rashad any effective relief in this appeal . Therefore, we

1 Christina is not a party to this appeal. Undesignated

s tatutory references are to the Welfare and Institutions Code.3

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
fa iled to comply with the inquiry and notice provisions of the
Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901

et seq.) and related California law

. While this appeal was pending, however, the Department conducted a further inquiry
into whether Sav annah 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 dismi ss 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 time s

. After an investigation t he Department filed a petition
under section 300, subdivisions (a), (b) (1) , and (j)

, alleging Christina physically abused Savannah and Joshua, made an4

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 jur isdiction and disposition hearing o n July 8, 2021 the juvenile c ourt 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 v isit ation for both parents.
The court denied Rashad’s request under section 361.2 to place
Savannah and Joshua with him as a non

- offending , n oncustodial parent . The court found that Rashad did not have a relationship
with his children and that the childr en 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 fo und 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 fin dings 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 Departm ent later amended) alleging Rashad was violent5

toward his girlfriend and her one

- year

- old son

. O n October 15,
2021 t he court sustained the subsequen t 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 dis position orders . We dismissed th at 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.4 th at p. 8 44 .)

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

app eal 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.)6

critical factor in considering whether a dependency appeal is moot is whether the appellate court can provide any effective
relief if i t 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 co urt 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 subsequen t proceeding. ’ ’’” ( In re D.P. , at p. 276 .) “‘ W hen 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 t he Order Denying His Request for Custody U nder 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 detriment al to their safety, protection, or physical or
emotional well

- being

. A s discussed, however, o n October 15,
2021 the juvenile court removed Savannah and Joshua from
Rashad after the court sustained a subsequent petition alleging Rashad physically abused hi s girlfriend and her son

. Thus, e ven 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 any7

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.5t h 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 proce eding 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).)8

state law, investigation of a famil y 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), provid es 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.5 th 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 India n 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 In dian 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 i nformation 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 a nd order the Department to fulfill its9

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, 2 021 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 form s ( Judicial Council Forms, form ICWA

- 020),
in which they indicated they had no known Indian ancestry. At the detention hearing t he 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 Col inda. (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

appea rance , . . . section 224.2, subdivision (b), requires the agency to ask the child, the parents, extended f amily 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
all egations of the petition, t he Department interviewed several extended family members , including two p aternal great aunts and a maternal uncle, but did not ask them about Savannah and Joshua’s possible Indian ancestry

.10 But o n 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, t he father, and all available relatives to ascertain whether the family has

any I ndian 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 r eports 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
“c onducted additional inq uiry of extended family members about
the ICWA and documented its interviews and efforts to interview the parents ,” that the Department “su bsequently provided additional information regarding the ICWA ” to the juvenile court,
and that the court found on Feb ruary 21, 2023 ICWA did not apply. Counsel for Rashad stated “ the Department has complied with the juvenile court’s order. ”
At th is point, we cannot grant Rashad any effective relief in this appeal regarding the Department’s and the juvenile court’s

com pliance 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.)11

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

.