A.D. v. Superior Court CA4/1 (2016) · DecisionDepot
A.D. v. Superior Court CA4/1
California Court of Appeal Mar 14, 2016 No. D069383Unpublished
Filed 3/14/16 A.D. v. Superior Court CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
A.D., D069383
Petitioner, (San Diego County Super. Ct. No. EJ2988B) v.
THE SUPERIOR COURT OF SAN DIEGO COUNTY,
Respondent;
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY et al.,
Real Parties in Interest.
PROCEEDINGS for extraordinary relief after reference to a Welfare and
Institutions Code1 section 366.26 hearing. Edlene C. McKenzie, Commissioner. Petition
dismissed; request for stay denied.
1 All statutory references are to the Welfare and Institutions Code unless otherwise specified.
Dependency Legal Group of San Diego and Amanda J. Gonzales for Petitioner.
No appearance by Respondent.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Lisa M. Maldonado, Deputy County Counsel, for Real Party in Interest San
Diego County Health and Human Services Agency.
Dependency Legal Group of San Diego and Karen McCready for Real Party in
Interest, M.D., a Minor.
A.D. filed a petition for extraordinary writ under California Rules of Court,2 rule
8.452, seeking review and stay of a juvenile court order denying reunification services as
to her minor daughter M.D. and setting a section 366.26 hearing. A.D. requests that the
jurisdiction and disposition orders be reversed with directions to the juvenile court to
determine whether there was proper compliance with the noticing requirements of the
Indian Child Welfare Act (ICWA) and to hold new jurisdiction and disposition hearings.
In response to the petition, the San Diego County Health and Human Services Agency
(the Agency) filed a motion to dismiss the writ petition as moot and a request for judicial
notice and motion to augment the record. We grant the request for judicial notice, the
motion to augment the record, and the motion to dismiss the petition as moot.
FACTUAL AND PROCEDURAL BACKGROUND
On October 16, 2015, the Agency filed a petition on behalf of three-month-old
M.D. under section 300, subdivision (b), alleging A.D. had a mental illness evidenced by
2 All rule references are to the California Rules of Court.
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her verbally aggressive and paranoid behaviors toward other residents where she was
staying. A.D. attempted to feed M.D. dry baby formula with no water and became
frustrated when the child would not eat. She also physically assaulted an elderly woman
on the street in M.D.'s presence. She was unable to provide care for M.D. because she
had been arrested and incarcerated. M.D. was placed in a licensed foster home.
On October 19, 2015, A.D. filed an ICWA-020 form on which she stated she may
have Indian ancestry with the "Chee Cherokee" tribe. At the detention hearing on that
date, the court noted A.D. may have Indian ancestry and deferred making an ICWA
finding. The court noted A.D. had a prior dependency case and directed the Agency to
investigate whether there had been an ICWA determination as to "any related sibling" of
M.D.
In its jurisdiction/disposition report, the Agency noted the ICWA may apply and
stated it would send notices to the Bureau of Indian Affairs (BIA) and "the respective
tribes" and provide the court with the information it received from them. At a hearing on
November 9, 2015, the court set a settlement conference for December 10, 2015 and a
contested jurisdiction and disposition hearing for December 14, 2015. The court ordered
the Agency to produce the information regarding ICWA noticing at the next hearing and
deferred the ICWA issue to the settlement conference.
In an addendum report for the December 10, 2015 settlement conference, the
Agency reported that on December 9, 2015, it had sent notices to the BIA, the Secretary
of the Interior, and the respective tribes. The form ICWA-030 notices the Agency sent
gave notice of the December 10 "Settlement/Pre-trial Conference," and was sent to the
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following three tribes: Cherokee Nation, United Keetoowah Band of Cherokee Indians,
and Eastern Band of Cherokee Indians (the tribes). The notice reported that when an
Agency social worker asked A.D. if she had any American Indian heritage, A.D. said, "I
do, Chee Cherokee, on my mom and grandparent's side."
At the settlement conference on December 10, 2015, the court made its
jurisdiction and disposition findings and orders, and ordered that no reunification services
were to be provided to A.D. The court set a section 366.26 hearing for March 30, 2016.
The court noted, "the [ICWA] finding was deferred" and stated it would continue to be
deferred. At the conclusion of the hearing, the court set the "ICWA special [hearing]" for
February 10, 2016.
DISCUSSION
A.D. correctly contends that the juvenile court erred by holding the jurisdiction
and disposition hearing sooner than 10 days after the BIA, Secretary of the Interior, and
tribes received ICWA notice from the Agency. Title 25 United States Code section
1912(a) "clearly states: 'No foster care placement or termination of parental rights
proceeding shall be held until at least ten days after receipt of notice by . . . the tribe or
the Secretary . . . .' " (In re Jennifer A. (2002) 103 Cal.App.4th 692, 704.)
The Agency asks that we take judicial notice under rule 8.252 of the juvenile
court's February 10, 2016 minute order and findings, and that we augment the record with
the Agency's addendum report and attachments that the court considered at the
February 10 hearing regarding ICWA notice. In considering whether an appeal has been
rendered moot by a postappeal hearing, it is appropriate for us to take judicial notice of
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documents pertaining to the subsequent hearing. (In re Karen G. (2004) 121 Cal.App.4th
1384, 1390 [judicial notice taken of minute order from six-month review hearing in
deciding the appeal from jurisdiction and disposition orders was moot].)
Regarding augmentation, Code of Civil Procedure section 909 provides that a
"reviewing court may . . . in the interests of justice, take additional evidence of or
concerning facts occurring at any time prior to the decision of the appeal, and may give
or direct the entry of any judgment or order and may make any further or other order as
the case may require. This section shall be liberally construed to the end among others
that, where feasible, causes may be finally disposed of by a single appeal and without
further proceedings in the trial court except where in the interests of justice a new trial is
required on some or all of the issues." (Italics added.)
Augmentation of the record with the Agency's report, including attachments, for
the February 10, 2016 hearing is appropriate because the report is relevant, it was before
the juvenile court, and it concerns ICWA compliance (which can be raised at any time)
rather than the merits of the dependency proceeding. (See Alicia B. v. Superior Court
(2004) 116 Cal.App.4th 856, 866-867 [permitting augmentation of record with ICWA
notices not filed in the juvenile court until the writ proceeding where appellant was
challenging ICWA notice rather than termination of parental rights]; In re A.B. (2008)
164 Cal.App.4th 832, 841, 843 [permitting augmentation with an ICWA form from a
separate dependency case, noting the ICWA issue was "distinct from the substantive
merits"].)
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The Agency acknowledges that its motion to augment is untimely under rule
8.452(e)(2), which provides that "[a] respondent [to a writ petition under rule 8.452] must
serve and file [any request to augment or correct the record] within 5 days after the
petition is filed or an order to show cause has issued, whichever is later." However, the
Agency asks that we exercise our discretion to extend that time period for good cause,
which we are authorized to do under rule 8.450(d). We conclude the Agency has shown
good cause for extending the time to file its motion to augment. A.D. filed her writ
petition on January 28, 2016. The court issued its order regarding ICWA notice
applicability on February 10, 2016. The Agency filed its motion to augment seven days
later, before its opposition to A.D.'s writ petition was due. The time between the hearing
and the filing of the Agency's motion was not unreasonable. Because the ICWA hearing
was held 13 days after A.D. filed her writ petition, it was not possible for the Agency to
file a motion to augment the record with the court's ICWA findings and order within five
days of the filing of the petition.
We grant the Agency's request for judicial notice and motion to augment the
record, and deem the documents attached to the Agency's motion to be a part of the
record in this proceeding. The attachments to the Agency's addendum report for the
February 10 hearing include copies of the Agency's ICWA notices and the tribes'
responses, bearing dates from December 18, 2015, to December 31, 2015. Each of the
tribes informed the Agency that M.D. was not registered or eligible to register as a
member of the tribe based on the information received from the Agency. Based on the
Agency's report, the court properly found that reasonable inquiry had been made to
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determine whether M.D. is, or may, be an Indian child and that the ICWA does not apply
in this case.
The court's February 10, 2016 order renders A.D.'s writ petition moot. " '[A]n
action that originally was based on a justiciable controversy cannot be maintained on
appeal if all the questions have become moot by subsequent acts or events. A reversal in
such a case would be without practical effect, and the appeal [or writ proceeding] will
therefore be dismissed.' [Citation.] The question of mootness in a dependency case
should be decided on a case-by-case basis, particularly when an error in the juvenile
court's initial jurisdictional finding has been alleged." (In re Dani R. (2001) 89
Cal.App.4th 402, 404-405.) "An exception to this rule exists where the question to be
decided is of continuing public importance and is one ' " 'capable of repetition, yet
evading review.' " ' [Citations.] Accordingly, 'if a pending case poses an issue of broad
public interest that is likely to recur, the court may exercise an inherent discretion to
resolve that issue even though an event occurring during its pendency would normally
render the matter moot.' " (In re Christina A. (2001) 91 Cal.App.4th 1153, 1158.)
There presently is no actual controversy about whether the ICWA applies to this
case or whether proper ICWA notices were sent to the relevant entities. In re E.W.
(2009) 170 Cal.App.4th 396 (E.W.) is instructive. In that case, the Court of Appeal
concluded that failing to reference the younger of two siblings in ICWA notices sent to
three tribes and the BIA was harmless error because the tribes' responses to the notices
established that the older sibling was not an Indian child. (Id. at pp. 399-400.) In the
interest of judicial economy, the E.W. court rejected the option of reversing the order
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terminating parental rights with a limited remand for the purpose of sending additional
ICWA notices that referenced the younger sibling, stating: "Even a conditional reversal
with limited remand would be an empty formality and a waste of ever-more-scarce
judicial resources. This is because there is no doubt that the [relevant] tribes and the BIA
would respond to any ICWA notices regarding [the younger sibling] with the exact same
answer as they did when they received these notices regarding [the older sibling]. . . . We
cannot condone delaying [the children's stability and] permanence for an empty exercise
with a preordained outcome, especially where that exercise does nothing concrete to
further the purposes of ICWA—'to give tribes the opportunity to investigate and
determine whether a child is an Indian child, and to advise the tribe of the pending
proceeding and its right to intervene.' " (Id. at pp. 401-402.)
Likewise, in the present case it would be an empty formality and waste of judicial
resources to reverse the jurisdictional and dispositional orders with a limited remand for
the purpose of determining whether there was compliance with the ICWA noticing
requirements. Because the court made that determination at the February 10, 2016
hearing, redoing the jurisdiction and disposition hearing for that purpose would be "an
empty exercise with a preordained outcome" that would do nothing to further the
purposes of the ICWA. (E.W., supra, 170 Cal.App.4th at p. 402.)
A.D. argues her writ petition should not be dismissed as moot because compliance
with the ICWA is an issue of continuing public importance and capable of repetition, yet
evading review. Although the ICWA itself reflects and embodies important public
policies, we do not view the specific issue raised in this proceeding—i.e., the juvenile
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court's improperly conducting a jurisdiction/disposition hearing less than 10 days after a
tribe's receipt of notice of the dependency proceedings—as one of broad public interest
that is likely to recur. We are mindful that the juvenile court, through inadvertence or
oversight, erred in conducting the jurisdiction/disposition hearing before expiration of the
10-day notice period. However, we conclude the error was harmless in light of the tribes'
responses, which established that the ICWA does not apply to this case. Nonetheless, we
expect that in the future the juvenile court, the Agency, and other interested parties will
be diligent in making sure there has been full compliance with the requirements of the
ICWA before proceeding with a jurisdiction or disposition hearing.
DISPOSITION
The Agency's request for judicial notice and motion to augment the record are
granted. The petition is dismissed. The request for stay is denied.
NARES, J.
WE CONCUR:
HUFFMAN, Acting P. J.
Prager, J.*
* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 9
AI Brief
AI-generated · verify before citing
Holding. The court dismissed the petition for extraordinary writ as moot because the juvenile court subsequently held a hearing and determined that the Indian Child Welfare Act (ICWA) does not apply, rendering any remand for further notice an empty formality.
Issues
Whether the juvenile court erred by holding jurisdiction and disposition hearings before the expiration of the 10-day ICWA notice period.
Whether the writ petition became moot following the juvenile court's subsequent ICWA findings.
Whether the appellate court should augment the record with post-petition evidence regarding ICWA compliance.
Disposition. dismissed
Quotations verified verbatim against the opinion
“The court's February 10, 2016 order renders A.D.'s writ petition moot.”