Filed 8/24/20 In re D.H. CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

In re D.H., et al., Persons Coming 

Under Juvenile Court Law.

_______________________________

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

L.N.,

Defendant and Appellant.

 B302142

 (Los Angeles County Super.

 Ct. No. 17CCJP02148)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Kim L. Nguyen, judge pro tempore. Dismissed.

Jacques Alexander Love, under appointment by the Court 

of Appeal, for Defendant and Appellant. 

Mary C. Wickham, County Counsel, and Kim Nemoy, 

Principal Deputy County Counsel, for Plaintiff and Respondent.

________________________
2

INTRODUCTION

Mother appeals from the termination of her parental 

rights, raising a single argument — the juvenile court and the 

Department of Children and Family Services (DCFS) failed to 

comply with the Indian and Child Welfare Act (ICWA). 

(25 U.S.C. § 1901 et seq.) Specifically, mother argues that 

neither the court nor DCFS inquired of paternal relatives 

whether father, who was deceased, had Indian ancestry. We 

dismiss the appeal as moot because while the appeal was 

pending, DCFS presented evidence from the paternal relatives 

that father had no Indian ancestry and the trial court found for a 

second time that ICWA did not apply. 

FACTUAL AND PROCEDURAL BACKGROUND

Mother has three children (ages nine, seven, and five when 

DCFS initiated proceedings in 2017). Father died in 2013. On 

November 30, 2017, DCFS filed a Welfare and Institutions Code 

section 300 petition alleging that mother had a history of 

engaging in altercations with relatives in the presence of her 

children and used inappropriate physical discipline on her oldest 

child.1

On December 1, 2017, the court detained all three children 

from mother. Mother filed paternity questionnaire forms for each 

child, showing father was deceased. The court acknowledged the 

paternity forms and found father to be an alleged father.

At this hearing, mother claimed to have Indian ancestry 

through the Tarasco tribe, which the juvenile court later 

confirmed was not a federally recognized tribe. The court 

1 All subsequent statutory references are to the Welfare and 

Institutions Code. This is a fast track juvenile dependency case. 

Because of delays caused by the COVID-19 pandemic and further 

proceedings in the trial court related to the issue on appeal, the 

court finds good cause to file this opinion after the 250th day.
3

questioned mother about deceased father’s ancestry. The court 

asked mother: “Do you have any reason to know whether [father] 

had any American Indian ancestry?” She replied: “Their father, 

not that I know of.” Paternal grandmother and a paternal aunt 

were present in court but the court did not ask them about

father’s ancestry. The court found there was no reason to know 

ICWA applied. The record does not contain evidence that DCFS 

ever asked paternal relatives about father’s ancestry. 

In February 2018, the court declared the children 

dependents under section 300, subdivision (b), removed them 

from mother’s custody, and ordered DCFS to provide 

reunification services. In March 2018, DCFS placed the children 

in the home of the paternal grandmother and aunt. A year later, 

the juvenile court terminated mother’s reunification services. On 

November 6, 2019, the court terminated parental rights to free 

the children for adoption by the paternal grandmother and aunt. 

Mother filed a notice of appeal on November 7, 2019, 

challenging the termination of her parental rights.

DISCUSSION

Mother argues the order terminating parental rights must 

be reversed because DCFS did not inquire about the children’s 

Indian ancestry through their father’s lineage. Specifically, 

mother asserts the paternal grandmother and aunt should have 

been questioned about father’s heritage. “We review a court’s 

ICWA findings for substantial evidence.” (In re Austin J. (2020) 

47 Cal.App.5th 870, 885 (Austin J.).) 

“Under California law, the court and county child welfare 

department ‘have an affirmative and continuing duty to inquire 

whether a child,’ who is the subject of a juvenile dependency 

petition, ‘is or may be an Indian child.’ [Citations.] The child 

welfare department’s initial duty of inquiry includes ‘asking the 

child, parents, legal guardian, Indian custodian, extended family 
4

members, others who have an interest in the child, and the party 

reporting child abuse or neglect, whether the child is, or may be, 

an Indian child and where the child, the parents, or Indian 

custodian is domiciled.’ (§ 224.2, subd. (b).)” (Austin J., supra,

47 Cal.App.5th at p. 883.)

Here, the court took mother’s lack of knowledge about 

father’s lineage as conclusive proof of no Indian ancestry in 

December 2017. This, without further inquiry, was error. 

DCFS, nevertheless, later remedied this error by asking the 

paternal grandmother and aunt whether father had Native 

American Indian ancestry; they answered in the negative. DCFS 

filed a report documenting these statements with the juvenile 

court on May 5, 2020, while this appeal was pending. On July 9, 

2020, the juvenile court issued a post judgment order, finding 

that ICWA did not apply based on the new information.2 On 

July 13, 2020, DCFS moved to dismiss the appeal, asserting that 

the appeal is now moot. We agree the appeal is moot as 

substantial evidence supports the court’s finding that ICWA does 

not apply.

Mother opposed the motion to dismiss and request for 

judicial notice, arguing that because the matter was “walked on 

calendar” for an ICWA finding, neither mother nor her counsel 

attended the hearing, nor were they able to review and be in a 

position to object to the documents submitted by DCFS. 

We conclude the lack of notice to mother of this hearing 

was harmless error. (In re J.P. (2017) 15 Cal.5th 789. 798 [“The 

harmless error analysis applies in juvenile dependency 

2 We grant DCFS’s May 12, 2020 request for judicial notice of 

its “Last Minute Information for the Court” document filed with 

the juvenile court on May 5, 2020, and its July 13, 2020 request 

for judicial notice of the juvenile court’s corresponding July 9, 

2020 order. (See Evid. Code, §§ 459, 452.) 
5

proceedings even where the error is of constitutional 

dimension.”].) At the outset of the dependency case, mother 

indicated that she did not have any evidence regarding father’s 

Indian heritage. On appeal, she does not indicate that she now 

has any information of Native American ancestry she would 

present to the trial court. We conclude that mother’s presence at 

the hearing would have had no bearing on the trial court’s order. 

DISPOSITION

The appeal is dismissed.

RUBIN, P. J.

I CONCUR:

MOOR, J.
In re D.H., et al.

B302142

BAKER, J., Concurring

I agree the appeal should be dismissed as moot. L.N.’s 

absence from the judicially noticed proceeding in which the 

juvenile court found the Indian Child Welfare Act 

inapplicable does not undermine that finding. Mother had 

no stake in the outcome of that proceeding, having 

previously asserted (as the juvenile court found) that the 

father had no Indian ancestry. Further, in this court, 

Mother does not challenge or otherwise object to the report 

the Department of Children and Family Services submitted 

recounting the paternal aunt and grandmother’s statements.

BAKER, J.