In re Anirah G. CA2/7

Filed 11/15/22 In re Anirah G. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 ANIRAH G., a Person B320169
Coming Under the Juvenile (Los Angeles County Super.
Court Law. Ct. No. 20CCJP00476)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

VIVIAN G. et al.,

Defendants and
Appellants.

APPEAL from an order of the Superior Court of Los
Angeles County, D. Zeke Zeidler, Judge. Conditionally affirmed
and remanded with directions.
 Megan Turkat Schirn, under appointment by the Court of
Appeal, for Defendant and Appellant Vivian G.
Linda Rehm, under appointment by the Court of Appeal,
for Defendant and Appellant Arthur J.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Navid Nakhjavani, Deputy
County Counsel, for Plaintiff and Respondent.
__________________________

Vivian G. (Mother) and Arthur J. (Father) appeal from the
juvenile court’s order terminating their parental rights over two-
year-old Anirah G. pursuant to Welfare and Institutions Code
section 366.26.1 Mother’s and Father’s sole contention on appeal
is that the Los Angeles County Department of Children and
Family Services (the Department) and the juvenile court failed to
comply with the inquiry and notice provisions of the Indian Child
Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA) and related
California law.
Mother and Father contend the Department failed to
inquire of maternal and paternal extended family members about
Anirah’s possible Indian ancestry. The Department responds
that the appeals are now moot because while the appeals were
pending, a social worker interviewed three extended family
members who denied Indian ancestry, and the juvenile court
found ICWA did not apply based on that information. The
postjudgment evidence of the Department’s belated ICWA
inquiry does not moot the appeals. We conditionally affirm and

1 Further undesignated statutory references are to the
Welfare and Institutions Code.

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remand for the juvenile court and the Department to comply with
the inquiry and notice provisions of ICWA and California law.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Dependency Proceedings
Shortly after Anirah’s birth, the Department filed a
dependency petition in January 2020 alleging Mother’s mental
and emotional problems, including diagnoses of bipolar disorder,
major depressive disorder, and an unspecified mood disorder,
rendered her incapable of providing regular care and supervision
of Anirah. Anirah was detained and placed with an unrelated
extended family member. On March 11, 2020 Mother pleaded no
contest to the allegations in the petition, and the juvenile court
sustained an amended petition under section 300, subdivision
(b)(1). The court declared Anirah a dependent of the court and
removed her from Mother’s physical custody. The court found
Father was the alleged father of Anirah, and it ordered the
Department to locate and provide notice to Father. On June 23,
2020 Father made his first appearance at an arraignment
hearing and requested paternity testing. Father told the social
worker he had frequent contact with paternal great-aunt Diane
D. and he could receive mail at her home. On December 8, 2020
the court found Father was Anirah’s biological father.
At the 18-month review hearing on July 22, 2021, the
juvenile court found Mother was in substantial compliance with
her case plan and released Anirah to her. On September 17 the
Department filed a subsequent petition (§ 342) and a
supplemental petition (§ 387) alleging Mother allowed her
boyfriend Clarence T., who abused marijuana, to have unlimited

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access to Anirah; Mother and Clarence engaged in domestic
violence; and Mother failed to comply with court-ordered mental
health counseling. On December 1, 2021 the juvenile court
sustained the subsequent and supplemental petitions and
removed Anirah from Mother’s physical custody. The court
terminated reunification services and set a selection and
implementation hearing (§ 366.26) for April 26, 2022.
At the April 26, 2022 selection and implementation
hearing, the juvenile court found by clear and convincing
evidence Anirah was adoptable and no exception to termination
of parental rights applied. The court rejected Mother’s and
Father’s arguments that the beneficial parental relationship
exception (§ 366.26, subd. (c)(1)(B)(i)) applied. The court
terminated Mother’s and Father’s parental rights.
Father filed his notice of appeal on April 26, 2022. Mother
filed her notice of appeal on May 17, 2022.

B. ICWA Inquiry and Findings
At the January 28, 2020 detention hearing, Mother filed a
parental notification of Indian status form (Judicial Council form
ICWA-020) on which she checked the box stating, “I have no
Indian ancestry as far as I know.” The juvenile court asked the
maternal aunt and maternal cousin, who were both present at
the hearing, whether their family had Indian ancestry. Both
responded “no.” The court then stated, “The court does not have
reason to know or believe the child is an Indian child as defined
by the Indian Child Welfare Act. The Indian Child Welfare Act
does not apply. The court will inquire further of the father if and
when he appears.” On August 16, 2021 Mother again denied she
or Anirah had Indian ancestry.

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 On June 23, 2020 Father’s counsel filed a parental
notification of Indian status form on Father’s behalf on which he
checked the box stating, “None of the above apply,” referring to
boxes indicating, among other things, the parent or child “is or
may be” a member of or eligible for membership in a federally
recognized Indian tribe, and one or more of the parent’s
grandparents, great-grandparents, “or other lineal ancestors is or
was a member of a federally recognized tribe.” On February 7,
2022 Father again denied any knowledge of Indian ancestry.
The Department did not interview any maternal or
paternal relatives with respect to Anirah’s possible Indian
ancestry prior to the selection and implementation hearing. Nor
did the court make a finding with respect to whether ICWA
applied as to Father. Further, the court did not make a finding
on ICWA as to either parent at the selection and implementation
hearing.

C. Post-appeal ICWA Inquiry
As discussed, in April and May 2022 Mother and Father
appealed the juvenile court’s April 26, 2022 order terminating
parental rights. According to the July 11, 2022 last minute
information for the court, on June 7 a social worker contacted the
maternal great-grandmother, Shirley B., who denied Indian
ancestry, stating, “‘I’m a black woman, and I speak English.’” On
July 6 the social worker contacted paternal grandmother Ms. S.
and maternal great-aunt Monique B., both of whom denied any
Indian ancestry. Ms. S. also reported the paternal grandfather
had died in 2018, and Ms. S. did not know of any Indian ancestry
on his side of the family. The July 22, 2022 minute order
indicates the juvenile court considered the July 11, 2022 last

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minute information report and found ICWA inquiry was
complete, the court did not have a reason to know Anirah was an
Indian child, and ICWA did not apply.
On September 16, 2022 the Department moved for judicial
notice under Evidence Code sections 452 and 459 of the July 11,
2022 last minute information for the court and the juvenile
court’s July 22, 2022 order finding ICWA did not apply. The
Department also requested we consider the additional evidence
under Code of Civil Procedure section 909.

DISCUSSION

A. Inquiry and Notice Requirements under ICWA and
California Law
ICWA provides as to dependency proceedings, “where the
court knows or has reason to know that an Indian child is
involved, the party seeking . . . termination of parental rights
to . . . an Indian child shall notify the parent or Indian custodian
and the Indian child’s tribe, by registered mail with return
receipt requested, 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 Antonio R. (2022) 76 Cal.App.5th 421, 428
(Antonio R.); In re T.G. (2020) 58 Cal.App.5th 275, 288.)
California law also requires notice to the Indian tribe and the
parent, legal guardian, or Indian custodian if the court or the
Department “knows or has reason to know” the proceeding
concerns an Indian child. (§ 224.3, subd. (a); see Antonio R., at
p. 429; In re T.G., at p. 288; Cal. Rules of Court, rule 5.481(c)(1)
[notice is required “[i]f it is known or there is reason to know an
Indian child is involved in a proceeding listed in rule 5.480,”

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which includes dependency cases filed under section 300].) The
notice requirement is at the heart of ICWA because it “enables a
tribe to determine whether the child is an Indian child and, if so,
whether to intervene in or exercise jurisdiction over the
proceeding.” (In re Isaiah W., at p. 5; accord, Antonio R., at
p. 428; In re T.G., at p. 288; see 25 U.S.C. § 1912(a); Welf. & Inst.
Code, § 224.3, subd. (d).)
The juvenile court and the Department “have an
affirmative and continuing duty to inquire whether a child for
whom a petition under Section 300 . . . may be or has been filed,
is or may be an Indian child.” (§ 224.2, subd. (a); see In re Isaiah
W., supra, 1 Cal.5th at p. 9; In re H.V. (2022) 75 Cal.App.5th 433,
437.) “The duty to inquire begins with initial contact (§ 224.2,
subd. (a)) and obligates the juvenile court and child protective
agencies to ask all relevant involved individuals whether the
child may be an Indian child. (§ 224.2, subds. (a)-(c)).” (In re
T.G., supra, 58 Cal.App.5th at p. 290; accord, In re J.C. (2022)
77 Cal.App.5th 70, 77; In re H.V., at p. 437.)
Section 224.2, subdivision (b), effective January 1, 2019,
imposes on the Department a duty to inquire whether a child in
the Department’s temporary custody is an Indian child, which
“[i]nquiry includes, but is not limited to, asking the child,
parents, legal guardian, Indian custodian, extended family
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 . . . .” (See Cal. Rules of Court, rule 5.481(a)(1)
[the Department “must ask . . . extended family members . . .
whether the child is or may be an Indian child”]; In re D.F. (2020)
55 Cal.App.5th 558, 566; In re Y.W. (2021) 70 Cal.App.5th 542,
551-552.) Under ICWA, the term “extended family member” is

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“defined by the law or custom of the Indian child’s tribe or, in the
absence of such law or custom, shall be a person who has reached
the age of eighteen and who is the Indian child’s grandparent,
aunt or uncle, brother or sister, brother-in-law or sister-in-law,
niece or nephew, first or second cousin or stepparent.” (25 U.S.C.
§ 1903(2); see Welf. & Inst. Code, § 224.1, subd. (c) [“As used in
connection with an Indian child custody proceeding, the terms
‘extended family member’ and ‘parent’ shall be defined as
provided in Section 1903 of the federal Indian Child Welfare
Act.”].)
“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.” (Antonio R.,
supra, 76 Cal.App.5th at p. 430; see In re K.R. (2018)
20 Cal.App.5th 701, 706 [“The 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 . . . .”].)
“In addition, section 224.2, subdivision (e), imposes a duty
of further inquiry regarding the possible Indian status of the
child ‘[i]f the court, social worker, or probation officer has reason
to believe that an Indian child is involved in a proceeding, but
does not have sufficient information to determine there is reason
to know that the child is an Indian child.’” (In re Rylei S. (2022)
81 Cal.App.5th 309, 316-317; accord, In re J.C., supra,
77 Cal.App.5th at p. 78, see Cal. Rules of Court, rule 5.481(a)(4).)
Further inquiry includes, but is not limited to, “interviewing, as
soon as practicable, extended family members to gather the

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biographical information required by section 224.3,
subdivision (a)(5), to be included in ICWA notices, contacting the
Bureau of Indian Affairs and contacting ‘the tribe or tribes and
any other person that may reasonably be expected to have
information regarding the child’s membership, citizenship status,
or eligibility.’” (Rylei S., at p. 317, quoting § 224.2, subd. (e)(2).)

B. The Post-appeal Evidence Does Not Moot Mother’s and
Father’s Appeals
The Department argues in its respondent’s brief that we
should consider its post-appeal efforts to comply with ICWA and
the juvenile court’s finding that ICWA does not apply, which
moot the current appeals. We grant the Department’s motion for
judicial notice of the July 11, 2022 last minute information report
and July 22, 2022 minute order as to the existence of the
documents, but not their contents. (In re Vicks (2013) 56 Cal.4th
274, 314 [“‘while courts are free to take judicial notice of the
existence of each document in a court file, including the truth of
results reached, they may not take judicial notice of the truth of
hearsay statements in decisions and court files’”]; In re M.B.
(2022) 80 Cal.App.5th 617, 626-627 (M.B.); In re K.M. (2015)
242 Cal.App.4th 450, 456 (K.M.) [“judicial notice may be taken of
the existence of court documents but not the truth of factual
findings made in other court rulings”].)
However, under Code of Civil Procedure section 909, an
appellate court may take additional evidence and make factual

9
determinations on appeal.2 In appropriate cases, postjudgment
evidence may “be considered to determine whether an issue on
appeal is moot.” (M.B., supra, 80 Cal.App.5th at p. 627; accord,
In re Josiah Z. (2005) 36 Cal.4th 664, 676 [postjudgment evidence
may be considered in motions to dismiss an appeal because “the
beneficial consequence of motions to dismiss, where granted, will
be to ‘expedit[e] the proceedings and promot[e] the finality of the
juvenile court’s orders and judgment’”]; K.M., supra,
242 Cal.App.4th at p. 456 [granting motion to take additional
evidence under Code of Civil Procedure section 909 of
postjudgment minute orders regarding ICWA].)
Even if we consider the contents of the July 11 and July 22
documents under Code of Civil Procedure section 909, the
postjudgment evidence does not moot Mother’s and Father’s
appeals. As we explained in M.B., section 366.26,
subdivision (i)(1),3 “expressly deprives the juvenile court of

2 Code of Civil Procedure section 909 provides, “In all cases
where trial by jury is not a matter of right . . . , the reviewing
court may make factual determinations contrary to or in addition
to those made by the trial court. . . . The reviewing court may for
the purpose of making the factual determinations or for any other
purpose in the interests of justice, take additional evidence of or
concerning facts occurring at any time prior to the decision of the
appeal.”
3 As applicable here, section 366.26, subdivision (i)(1),
provides, “Any order of the court permanently terminating
parental rights under this section shall be conclusive and
binding . . . . After making the order, the juvenile court shall
have no power to set aside, change, or modify it.”

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jurisdiction to modify or revoke an order terminating parental
rights once it is final as to that court.” (M.B., supra,
80 Cal.App.5th at p. 627; accord, In re Ricky R. (2022)
82 Cal.App.5th 671, 683 [postjudgment declarations from social
worker regarding additional ICWA investigation did not render
appeal moot because section 366.26, subdivision (i)(1), deprives
juvenile court of jurisdiction to modify or revoke order
terminating parental rights]; K.M., supra, 242 Cal.App.4th at
p. 458 [“[T]he juvenile court lacked jurisdiction to consider [the
social services agency’s] belated remedial ICWA efforts because it
was in substance a collateral attack on the termination order.”].)
Thus, the Department “cannot remedy a defective ICWA
investigation by conducting further interviews while the
termination order is being reviewed on appeal.” (M.B., at
pp. 627-628; accord, K.M., at p. 458; but see In re Allison B.
(2022) 79 Cal.App.5th 214, 219-220 [dismissing mother’s appeal
as moot based on ICWA inquiry of maternal grandparents and
paternal grandmother three months after mother appealed].)
Here, as in M.B., the Department conducted interviews of
three maternal and paternal relatives to correct its earlier
inadequate ICWA investigation. (See M.B., supra, 80 Cal.5th at
p. 629.) In M.B., we rejected the Department’s argument that the
belated ICWA inquiry rendered the appeal moot, concluding the
juvenile court lacked jurisdiction to vacate its order terminating
parental rights if further ICWA compliance was required. (M.B.,
at p. 629.) The Department attempts to distinguish M.B. on the
basis the mother there stated she had Indian ancestry and
therefore the Department’s deficient inquiry could have resulted
in inadequate notice to the Indian tribe that needed to be
corrected, whereas here both parents and the two maternal

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relatives who were present at the detention hearing denied any
Indian ancestry. The Department’s argument misses the point.
Although Mother and Father and the two maternal relatives
denied Indian ancestry, the requirement that the Department
inquire of extended family members, who may have greater
knowledge of Anirah’s possible Indian ancestry, is designed to
elicit information that could still uncover that the child is an
Indian child. (See Antonio R., supra, 76 Cal.App.5th at p. 432
[“parents may lack knowledge of a child’s Indian ancestry even
where the child’s extended family members possess strong
evidence of the child’s possible Indian ancestry”].) We now know
from the postjudgment evidence that there were at least two
additional maternal relatives and one paternal relative (and
possibly more) that had not been interviewed as to Anirah’s
possible Indian ancestry. Had the additional ICWA inquiry
yielded information that caused the juvenile court to have a
reason to believe Anirah was an Indian child, the court would
have lacked jurisdiction to modify the order terminating parental
rights. (M.B., supra, 80 Cal.App.5th at p. 627; § 366.26,
subd. (i)(1).)
As we observed in M.B., “Rather than attempt to moot [the
parent’s] appeal by belatedly conducting the investigation
required by section 224.2, the Department’s proper course of
action was to stipulate to a conditional reversal with directions
for full compliance with the inquiry and notice provisions of
ICWA and related California law—a procedure the Department
has used in many ICWA appeals pending before us.” (M.B.,
supra, 80 Cal.App.5th at p. 629.) The Department here as well
opted to attempt to moot the appeals instead of stipulating to a

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conditional reversal, which would have more expeditiously
addressed the ICWA deficiencies.

C. The Juvenile Court Failed To Ensure the Department
Satisfied Its Duty of Inquiry
By conducting additional interviews of three of Anirah’s
extended family members after Mother and Father appealed, the
Department implicitly acknowledges it failed to conduct an
adequate inquiry into Anirah’s possible Indian ancestry before
the juvenile court terminated Mother’s and Father’s parental
rights. (See M.B., supra, 80 Cal.App.5th at p. 629.) Indeed, the
Department does not contend in its respondent’s brief that its
initial ICWA investigation was adequate. Moreover, even the
Department’s postjudgment attempt to remedy its failure to
comply with its ICWA obligations fell short. For example, the
Department did not inquire of paternal great-aunt Diane T., with
whom Father had contact. And at no time did the Department or
juvenile court ensure that inquiry was made of all ascertainable
extended family members.
The juvenile court therefore erred in finding ICWA did not
apply to the proceedings without ensuring the Department
satisfied its duty of inquiry under section 224.2, subdivision (b).
(In re J.C., supra, 77 Cal.App.5th at p. 74 [the court’s finding
ICWA did not apply was not supported by substantial evidence
where the court “failed to ensure the Department fulfilled its
duty of inquiry under section 224.2, subdivision (b)”]; Antonio R.,
supra, 76 Cal.App.5th at p. 432 [court’s finding ICWA did not
apply was erroneous where Department failed to inquire of
child’s extended family members about possible Indian ancestry,

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and court failed to ensure Department satisfied its duty of initial
inquiry].)
DISPOSITION

The April 26, 2022 order terminating Mother’s and Father’s
parental rights is conditionally affirmed. We remand to the
juvenile court for the Department and the court to comply with
the inquiry and notice provisions of ICWA and related California
law.

FEUER, J.

We concur:

PERLUSS, P. J.

SEGAL, J.

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