Filed 5/4/22 In re B.R. CA2/3

not to be published in the official reports

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from orders of the Superior Court of Los Angeles County, Linda L. Sun, Judge. Affirmed.

Sean Angele Burleigh, under appointment by the Court of Appeal, for Defendant and Appellant.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Sarah Vesecky, Deputy County Counsel for Plaintiff and Respondent.

_______________________________________

INTRODUCTION

Javier R. (father) appeals from the juvenile court’s disposition orders declaring his two children, J.R. and B.R., dependents of the court and removing them from his custody. Father raises several claims on appeal: (1) insufficient evidence supports the court’s jurisdiction finding that father’s acts of domestic violence against mother placed the children at serious risk of physical harm; (2) insufficient evidence supports the court’s order removing the children from father’s custody; (3) the court erred in issuing a restraining order precluding father from contacting mother and the children outside of court-approved visits; and (4) the Department of Children and Family Services (Department) failed to conduct an adequate initial inquiry into the children’s possible Indian ancestry under the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) and related state laws implementing ICWA (Welf. & Inst. Code,[1] § 224 et seq.).

After father filed this appeal, the court placed the children back in mother’s custody and modified the restraining order against father to remove the children as protected parties. Consequently, father’s challenge to the restraining order as it applies to the children and father’s challenge to the court’s ICWA finding are now moot. As for father’s other claims challenging the jurisdiction finding, removal orders, and restraining order, we reject each of them and affirm.

FACTUAL AND procedural background

1. Family Background and the Initial Referral

Mother and father have two children: B.R. (born in 2018) and J.R. (born in 2019). The parents separated around late 2020, and mother started living with her current boyfriend in early 2021.

In March 2021, the Department received a referral alleging J.R. suffered severe head trauma while he was alone in the boyfriend’s care. The boyfriend claimed the injuries were inflicted accidentally while he was playing with the child, but doctors believed the injuries weren’t consistent with the boyfriend’s account. Rather, the injuries appeared to have been inflicted nonaccidentally and were consistent with shaken baby syndrome. As a result of the boyfriend’s conduct, J.R. suffered subdural hematomas on both sides of his brain and his pupils were ruptured, rendering the child permanently blind in both eyes.

2. Mother’s and Father’s History of Domestic Violence

While the Department was investigating J.R.’s injuries, they spoke to mother about her relationship with father. She broke up with him because he was physically abusive. About a month before the family came to the Department’s attention, mother obtained a temporary restraining order against father, protecting herself and the children.

In support of her request for a restraining order, mother described several instances when father assaulted her. In April 2018, on a trip to Mexico while mother was a few months pregnant with B.R., father got drunk, choked mother, and pushed her against a wall.

In November 2018, when mother was eight months pregnant with B.R., father attacked mother after she came home from work. Father kicked mother’s stomach, punched her arms, and sprained her wrist.

In July 2019, father forced himself “into” mother. Mother tried to scream and kick father off of her, but he held her down and covered her mouth.

In early January 2021, the parents got into a fight over father calling mother derogatory names in front of the children. During the argument, father rushed towards mother and pushed her face, causing her to fall backwards. Father then threatened to take B.R. to Mexico with him, before snatching the child’s passport and pushing mother against a wall.

In late January 2021, father pushed mother in the hallway of their apartment. He then grabbed her phone and punched her arm, before trying to smash mother’s phone on the ground. After mother picked up her phone, father groped her breast before forcing her to the ground. Father stopped attacking mother once she kicked him off of her.

Mother also claimed father forced her to have sex with him “countless” other times, which is how J.R. was conceived. And, on several occasions, father threatened to shoot mother if she ever left him.

The Department interviewed father. He denied ever hitting or threatening mother. Although they frequently argued, father claimed he never kicked mother while she was pregnant or threatened to shoot her. Father insisted mother was the violent partner in the relationship, and he had evidence confirming she had thrown items at him when she became angry.[2] Father didn’t know mother had obtained a restraining order against him because he had been living in Mexico since January 2021.

3. The Petition and Initial Hearings

In March 2021, the Department filed a dependency petition on the children’s behalf. As later sustained by the court, the petition alleged: (1) J.R.’s severe head injuries were caused nonaccidentally and could not have been sustained but for mother’s negligent failure to protect the child (§ 300, subd. (b); b-1 allegation); (2) father has a history of engaging in domestic violence against mother, including kicking mother while she was pregnant and choking and raping her, all of which place the children at risk of suffering serious physical harm (§ 300, subd. (b); b-2 allegation); and (3) mother created a detrimental and dangerous situation for the children by allowing her boyfriend to have unlimited and unsupervised access to them (§ 300, subd. (b); b-3 allegation).

Before the initial hearing in this case, mother and father reported they didn’t know of any Indian ancestry in their respective families. Around the same time, father filed an ICWA-020 form, checking “[n]one of the above apply” box under the status asking parents about potential Indian statuses.

On the date of the initial hearing, mother filed a new request for a restraining order against father, protecting herself and the children. In support of her request, mother described many of the same incidents she described in her request for the restraining order she obtained against father earlier that year.

At the initial hearing, the court found father was the children’s presumed parent, that the petition alleged a prima facie case, and that ICWA did not apply to the children’s proceedings. The court detained the children from father but allowed them to remain in mother’s custody. The court granted mother’s request for a temporary restraining order against father and scheduled a hearing on whether to issue a permanent restraining order for the same day as the jurisdiction and disposition hearing.

Later that month, the court removed the children from mother’s custody after the Department reported that she was still allowing her boyfriend to stay in her apartment after she told the Department she was no longer in contact with him.

4. Jurisdiction and Disposition

In preparation for the jurisdiction and disposition hearing, the Department interviewed the family. Mother provided additional details about her abusive relationship with father.

During the 2018 incident when mother was in the late stages of her pregnancy with B.R., father was drunk and became angry because he thought mother had opened his mail. Father grabbed mother by her wrist and said, “Oh my God[,] I want to fucken hit you.” Father then threw mother on the bed and started swinging his fists until he hit her arms. When mother tried to leave, father grabbed her and kicked her stomach three times. Mother pleaded with father to stop kicking her, telling him that she was pregnant.

After father stopped hitting mother, she went to the hospital, where staff reported the incident to law enforcement. According to the police report from the incident, mother suffered a left wrist contusion, blunt trauma to her abdomen, and a head injury. A photograph taken at the hospital appears to show mother had marks or bruises on her stomach.

Around March 2020, father came home drunk while mother and B.R. were asleep. When mother told father she didn’t want to sleep with him, he forced her to have sex. Mother claimed this was how J.R. was conceived.[3]

In December 2020, mother refused to let father take the children to Mexico, because she didn’t believe it would be safe for the children to travel during the COVID-19 pandemic. Father became upset and started calling mother derogatory names. Father then rushed at mother and said, “I’m going to fucken hit you. Don’t make me hit you.” When father left for Mexico, he took B.R.’s passport with him and later refused to give it back to mother.

Father continued to deny ever hitting mother, including during the 2018 incident when hospital staff contacted law enforcement. According to father, mother often overreacted and would act out toward him. On several occasions, mother threw objects at him, one time hitting him in the face with a vase. Father claimed he had videos of mother telling him he’s going to die of diabetes, but nothing in the record indicates he provided those videos to the Department. Father did produce a photograph of himself and mother, in which mother is pointing a knife at his neck. But, as father told the Department, people who saw the photograph told him it looked staged or like the parents were joking around.

The court held the jurisdiction and disposition hearing in June 2021. Father didn’t testify. The court sustained the b-1, b-2, and b-3 allegations. In sustaining the b-2 allegation concerning father’s domestic violence, the court explained: “[T]here is [a] preponderance of the evidence that the mother sustained injuries from the 2018 incident, although remote, but the domestic violence incidents appear to have continued to January of this year. [¶] As stated in the mother’s handwritten statement attached to the jurisdiction report, there had been at least five incidents. As reported by the mother, three of them occurred this year. [¶] It appears that whenever the mother and the father get together, then there will be incidents of domestic violence. And if the domestic violence issue cannot be addressed, then that will pose a substantial risk to the children as indicated in the 2018 incident that the mother was already eight months pregnant but the father kicked her abdomen, and she [sustained] blunt trauma to the abdomen and a head injury.”

The court then declared B.R. and J.R. dependents of the court and removed them from the parents’ custody. As to father, the court removed the children because of “his continuous denial and minimization of the domestic violence incidents in which … he demonstrated he had no regard for the safety of his unborn child by kicking the mother in the stomach and, also, that he had threatened the mother a few times that he was going to take the children to Mexico and she was not ever going to see her children again.” The court ordered father to participate in parenting classes and individual counseling to address case issues. The court awarded mother and father monitored visitation with B.R. and unmonitored visitation with J.R. while he remained in the hospital, with visits to revert to monitored upon the child’s release from the hospital.

After issuing its disposition orders, the court heard mother’s request for a permanent restraining order against father. The court granted a one-year restraining order, precluding father from contacting mother and the children outside of court-ordered visitation.

Father appealed from the court’s disposition orders.

In January 2022, while this appeal was pending, the court returned B.R. and J.R. to mother’s custody and removed the children as protected parties from the restraining order issued against father.

DISCUSSION

1. The Jurisdiction Finding Against Father

Father contends insufficient evidence supports the court’s finding sustaining the b-2 allegation. As we explain, ample evidence supports the court’s jurisdiction finding concerning father’s history of engaging in domestic violence against mother.

1. 1. Applicable Law and Standard of Review

Under section 300, subdivision (b)(1), a juvenile court may exercise jurisdiction over a child “if the ‘child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent ... to adequately supervise or protect the child.’ ” (In re E.E. (2020) 49 Cal.App.5th 195, 205, emphasis removed.)

The juvenile court doesn’t need to wait until a child is seriously injured before asserting jurisdiction if there is evidence that the child is at risk of future harm because of the parent’s conduct. (In re Yolanda L. (2017) 7 Cal.App.5th 987, 993.) The court may consider past events as an indicator of whether the child faces a current risk of harm because “[a] parent’s past conduct is a good predictor of future behavior.” (In re T.V. (2013) 217 Cal.App.4th 126, 133.) A parent’s denial of wrongdoing or failure to recognize the negative impact of her conduct is also relevant to determining risk under section 300. (In re Tania S. (1992) 5 Cal.App.4th 728, 735, fn. 4 (Tania S.).)

We review a juvenile court’s jurisdiction finding for substantial evidence. (In re D.C. (2015) 243 Cal.App.4th 41, 55.) We will affirm the finding if it is supported by evidence that is reasonable, credible, and of solid value. (In re R.V. (2012) 208 Cal.App.4th 837, 843.) “ ‘[W]e look to see if substantial evidence, contradicted or uncontradicted, supports [the court’s findings]. [Citation.] In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court. [Citations.]” (In re R.T. (2017) 3 Cal.5th 622, 633.) “The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the findings or order.” (R.V., at p. 843.)

1. 2. Substantial evidence supports the court’s jurisdiction finding against father.

Over a nearly three-year period, father engaged in an extensive pattern of physically abusing and sexually assaulting mother. In 2018, while mother was pregnant with B.R., father assaulted mother on at least two occasions, choking her and shoving her against a wall during the first incident and punching her arms and kicking her abdomen during the second incident. In 2019, father forced mother to have sex with him while holding her down and covering her mouth to keep her from resisting. In early 2020, father again forced mother to have sex with him against her will, this time in B.R.’s presence.

Around late 2020 and early 2021, father attacked mother twice. During the first incident, father called mother derogatory names and shoved her in the face, causing her to fall. During the second incident, father pushed mother and grabbed her phone before forcing her to the ground. On top of these specific incidents, mother also claimed father threatened to shoot her on several occasions and forced her to have sex with him “countless” times. This evidence clearly supports a finding that father has a history of engaging in domestic violence against mother.

It also was more than reasonable for the court to find father posed a risk of harm to the children at the time of the jurisdiction hearing. As the court noted, father continued to attack mother as recently as late January 2021, less than five months before the jurisdiction hearing. In addition, father refused to acknowledge he has issues with violence throughout the children’s proceedings, repeatedly denying he ever physically abused, sexually assaulted, or threatened mother. (Tania S., supra, 5 Cal.App.4th at p. 735, fn. 4.) And, most importantly, father showed a frightening disregard for the children’s safety during his violent outbursts. He attacked mother multiple times while she was pregnant with B.R. and sexually assaulted mother while B.R. was in the same room with them.

Father devotes nearly 20 pages of his opening brief to attacking mother’s credibility, arguing the court erred when it relied on her accounts of his physical abuse, sexual assault, and verbal threats. Father insists the court should have discredited all of mother’s statements about his abuse because she was sometimes untruthful or uncooperative during the Department’s investigation into her boyfriend’s abuse of J.R., such as when she failed to disclose to the Department that she remained in contact with her boyfriend throughout parts of the investigation. Father also claims all of mother’s statements concerning his abuse are untrustworthy because some of her accounts were factually impossible, such as her claim that J.R. was conceived when father raped her in March 2020 even though J.R. was born in 2019. Additionally, father contends the court erred by relying solely on mother’s statements, without any corroborating evidence to substantiate her claims. And finally, father argues the Department should have done more to corroborate his claims that he never abused or assaulted mother and that mother was the aggressor in the relationship. All these arguments lack merit.

As a threshold matter, we point out that father didn’t raise most of these issues where they mattered most: at the jurisdiction hearing before the court sustained the petition’s allegations. Father could have testified, elicited other witnesses’ testimony, or presented other evidence to show he wasn’t violent in the relationship or to further impeach mother’s credibility, but he didn’t do any of those things. In any event, even if father had done more to attack mother’s credibility below or present evidence in his defense, the court was free to reject father’s arguments and find that mother’s statements about his abuse and sexual assault were credible, even if some of her statements to the Department concerning her relationship with her boyfriend weren’t credible. It is well-settled that “ ‘issues of fact and credibility are the province of the trial court.’ ” (In re Cole L. (2021) 70 Cal.App.5th 591, 602.) For that reason, we defer to the court’s credibility determinations and will not reweigh the strength of the evidence. (In re S.G. (2021) 71 Cal.App.5th 654, 672 (S.G.); see also In re S.A. (2010) 182 Cal.App.4th 1128, 1140 (S.A.) [“ ‘It is not an appellate court’s function, in short, to redetermine the facts.’ ”].)

Although one of mother’s statements was inaccurate, like her claim that J.R. was conceived in March 2020, the court could have found mother was confused about some of the dates when father’s abuse or sexual assault occurred or some of the specific details surrounding each specific incident of abuse, while finding the bulk of her statements were credible. In any event, the March 2020 incident was not the only time mother claimed that father raped her. So, the court could have disregarded all or part of mother’s account of that incident, while finding credible her other accounts of father’s sexual assault. Again, it is not our job to second-guess the court’s weighing of the evidence and credibility determinations. (S.G., supra, 71 Cal.App.5th at p. 672.)

As for father’s claim that the court erred by relying solely on mother’s statements alleging father physically abused, sexually assaulted, and verbally threatened her, that argument is specious. As we noted in our factual summary, the Department corroborated some of mother’s statements. For instance, the Department reviewed a police report from the November 2018 incident when father assaulted mother while she was pregnant with B.R. That report corroborated mother’s claims, as they confirm she suffered a left wrist contusion, blunt trauma to her abdomen, and a head injury because of father’s attack. In any event, the court was allowed to rely solely on mother’s statements, as the testimony of a single witness is sufficient to support a jurisdiction finding. (S.A., supra, 182 Cal.App.4th at p. 1140.)

We also reject father’s claim that the jurisdiction finding against him must be reversed because the Department didn’t do enough to corroborate his claims that he never struck or abused mother and that mother was the aggressor in the relationship. As the petitioning party, the Department bore the burden to prove the petition’s allegations. (See In re G.B. (2018) 28 Cal.App.5th 475, 487.) As it related to father, the b-2 allegation claimed he physically abused, verbally threatened, and raped mother on several occasions. The Department proved the truth of that allegation, as we explained above. Whether mother was also physically aggressive in the relationship is beside the point. That is, even if it were true, it doesn’t negate the fact that father also engaged in a troubling pattern of violent behavior against mother.

In any event, father cites no authority to support the proposition that the Department bore the burden to develop and prove possible defenses that he could have raised in response to the petition’s allegations. Rather, that responsibility rested with father, who was represented by counsel leading up to and at the jurisdiction and disposition hearing. But father presented no evidence in his defense at that hearing. Indeed, as father acknowledges in his opening brief, although he told the Department he had videos that would show mother being the aggressor, he never produced that evidence for the Department or the court.

Finally, father insists he was the victim of gender-bias by the court. Specifically, he argues that because mother’s statements concerning his abuse were unbelievable compared to his statements denying that he had ever hit her, the court must have been unable to “ignore gender stereotypes” and simply assumed father abused mother because of his gender. This argument is not well taken.

As a threshold matter, father never raised this issue below and it was never discussed in the Department’s reports or at the jurisdiction hearing. Father could have argued to the court that the Department was profiling him as an abuser based solely on his gender, but he never did. He therefore cannot now argue the court erred in considering a factor that father never brought to its attention. (See In re S.B. (2004) 32 Cal.4th 1287, 1293 [a parent in a dependency proceeding generally forfeits an objection to a court’s ruling that wasn’t raised below].) Second, nothing in the record supports this claim. The court made no statements indicating it sustained the b-2 allegation because of father’s gender. Rather, as its oral ruling sustaining the b-2 allegation makes clear, the court based its finding on the more than ample evidence showing father physically abused, sexually assaulted, and verbally threatened mother on repeated occasions.

In short, substantial evidence supports the court’s jurisdiction finding sustaining the b-2 allegation against father.

2. The Removal Orders

Father next contends insufficient evidence supports the court’s orders removing B.R. and J.R. from his custody. We disagree.

1. 1. Applicable Law and Standard of Review

Before removing children from their parent’s custody, section 361, requires the court to find “clear and convincing evidence” of “a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the [parent’s] physical custody.” (§ 361, subds. (c) & (d).)

“A removal order is proper if it is based on proof of (1) parental inability to provide proper care for the minor[s] and (2) potential detriment to the minor[s] if [they] remain[ ] with the parent. [Citation.] The parent need not be dangerous and the minor need not have been harmed before removal is appropriate. The focus of the statute is on averting harm to the child.” (In re T.W. (2013) 214 Cal.App.4th 1154, 1163.) The juvenile court may consider the parent’s past conduct as well as the present circumstances. (In re John M. (2012) 212 Cal.App.4th 1117, 1126.) When reviewing a removal order, we “must determine whether the record, viewed as a whole, contains substantial evidence from which a reasonable trier of fact could have made the finding” by clear and convincing evidence. (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005.)

1. 2. Substantial evidence supports the court’s removal orders.

Substantial evidence also supports the court’s orders removing J.R. and B.R. from father’s custody. As we just discussed, father has a lengthy history of abusing mother, and nothing in the record indicates he has done anything to address his issues with violence, let alone acknowledge them.

Most importantly for purposes of removal, father’s violence placed his children in dangerous situations. It goes without saying that physically attacking a mother while she is pregnant places not only the mother but also the unborn child at significant risk of physical harm. Father also sexually assaulted mother in front of B.R., and there was evidence from which the court could infer father assaulted mother while she was pregnant with J.R. The children’s young ages and J.R.’s significant medical needs make the children particularly vulnerable to, and defenseless against, father’s violence. In addition, the court could have found father posed a risk of absconding with the children, as he had taken B.R.’s passport and threatened to take the children from mother’s custody in early 2021.

In short, it was more than reasonable for the court to find the children faced a substantial risk of physical harm if they remained with father. The court, therefore, didn’t err when it removed B.R. and J.R. from father’s custody.

3. The Restraining Order

Father next contends the court erred when it issued a restraining order protecting mother and the children from him. As we explain, substantial evidence supports the restraining order as it applies to mother. As for father’s claim that the court erred when it included the children as protected parties, that argument is now moot since the court removed the children from the restraining order after father filed this appeal.

Under section 213.5, the juvenile court may issue an order “enjoining any person from molesting, attacking, striking, stalking, threatening, … battering, harassing, telephoning, … contacting, … coming within a specified distance of, or disturbing the peace of” a parent or child involved in a dependency proceeding where domestic violence is involved. (§ 213.5, subd. (a).) The party seeking the restraining order is not required to present “ ‘evidence that the restrained person has previously molested, attacked, struck, sexually assaulted, stalked, or battered [the petitioner or person to be protected].’ [Citation.] It may be sufficient to show that the person to be restrained ‘disturb[ed] the peace’ of the petitioner [citation], meaning he or she engaged in conduct that destroyed the petitioner’s ‘ “ ‘mental or emotional calm.’ ” ’ [Citation.]” (S.G., supra, 71 Cal.App.5th at p. 671.) Where, as here, the appellant challenges only the sufficiency of the evidence to support the restraining order, we must affirm if there is substantial evidence to support the court’s decision to issue the order. (Id. at pp. 670–671.)

First, father argues the court erred in issuing the restraining order for essentially the same reasons he challenges the jurisdiction finding against him—i.e., there is insufficient evidence that he abused mother or otherwise “disturbed” her peace. Because, as we explained above, there is ample evidence to support a finding that father physically and sexually abused mother and verbally threatened her with violence on repeated occasions, including as recently as January 2021, substantial evidence supports the restraining order as it applies to mother.

Second, father contends the court erred when it included B.R. and J.R. as protected parties under the restraining order. “It is well settled that an appellate court will decide only actual controversies and that a live appeal may be rendered moot by events occurring after the notice of appeal was filed. We will not render opinions on moot questions or abstract propositions, or declare principles of law which cannot affect the matter at issue on appeal.” (Daily Journal Corp. v. County of Los Angeles (2009) 172 Cal.App.4th 1550, 1557.) Generally, an appeal becomes moot when subsequent events, such as an order by the juvenile court, renders it impossible for the reviewing court to grant the appellant effective relief. (In re D.N. (2020) 56 Cal.App.5th 741, 757 (D.N.).)

Because the court’s January 2022 orders removed B.R. and J.R. as parties protected by the restraining order against father, he already has obtained all the relief he seeks as his challenge to the restraining order relates to the children. Thus, father’s claim that the court erred when it included the children as parties protected by the restraining order is now moot.

In any event, substantial evidence supports the court’s decision to include the children in the restraining order against father. It was more than reasonable for the court to find that father posed a threat to the children considering the evidence that he attacked mother while she was pregnant with B.R. on at least two occasions and forced mother to have sex against her will in the presence of at least one of the children. Father’s conduct showed, at minimum, a willful disregard for his children’s safety. (See In re B.S. (2009) 172 Cal.App.4th 183, 194.) The court, therefore, did not err when it included the children as parties protected by the restraining order against father.

4. ICWA

Finally, father contends the Department failed to conduct an adequate initial inquiry into B.R.’s and J.R.’s possible Indian ancestry. The Department argues father’s challenge to the court’s ICWA finding is now moot because B.R. and J.R. were returned to mother’s custody while this appeal was pending. We agree.

As we explained above, an appeal usually becomes moot where subsequent events, like an order by the juvenile court, makes it so that the reviewing court can no longer afford the appellant effective relief. (D.N., supra, 56 Cal.App.5th at p. 757.) Generally, ICWA applies only to proceedings where the children are removed from both parents’ custody. (See In re M.R. (2017) 7 Cal.App.5th 886, 904–905.) Put another way, “ICWA and its attendant notice requirements do not apply to a proceeding in which a dependent child is removed from one parent and placed with another.” (Ibid.; see also In re J.B. (2009) 178 Cal.App.4th 751, 758 [“ICWA does not apply to a proceeding to place an Indian child with a parent.”].) Because the children have been placed in mother’s custody, ICWA no longer applies to their proceedings and father’s challenge to the court’s ICWA finding is now moot.

Father contends we should nevertheless address this issue because some courts have used undisturbed ICWA findings from prior dependency proceedings as a factor to support a finding that ICWA does not apply to, or that ICWA error is harmless in, an ongoing proceeding. (See, e.g., In re Darian R. (2022) 75 Cal.App.5th 502, 506 [in finding ICWA did not apply to children’s current dependency proceedings, the juvenile court “relied in part on the undisputed fact that in a [prior] dependency case, the juvenile court found ICWA did not apply as to [the children]”].)

Courts may exercise their discretion to consider the merits of a moot argument if there is a reasonable probability that the same issue could arise again in the future or evade review. (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1404.) We do not believe it is reasonably probable that issues concerning ICWA compliance will arise again in the future.

When these proceedings began, the court did not detain the children from mother’s custody. Although the court later removed them based on mother’s continued relationship with her boyfriend, those concerns have clearly since been resolved, as the court returned the children to mother at the six-month review hearing. Because mother’s relationship with her boyfriend was the only conduct attributable to mother that forms the basis of the court’s jurisdiction findings, it does not appear likely that the children will be removed from mother’s custody in the future. In other words, the future removal of the children from mother’s custody “is too speculative to justify appellate review of an otherwise moot [issue].” (In re Rashad D. (2021) 63 Cal.App.5th 156, 164, fn. 5.)

DISPOSITION

The court’s disposition orders are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.

WE CONCUR:

EDMON, P. J.

KIM, J.^*

[1] All undesignated statutory references are to the Welfare and Institutions Code.

[2] Nothing in the record indicates father produced this evidence.

[3] Mother appears to have been confused about the date when this incident occurred or when J.R. was conceived since the child was already several months old by March 2020.

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.