M.C. v. Superior Court CA3

Filed 6/8/22 M.C. v. Superior Court CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(San Joaquin) ----

M. C., C094835

Petitioner, (Super. Ct. No. STKJDDP20210000167) v.

THE SUPERIOR COURT OF SAN JOAQUIN COUNTY,

Respondent;

SAN JOAQUIN COUNTY HUMAN SERVICES AGENCY et al.,

Real Parties in Interest.

M. C. (petitioner), the guardian and grandmother of the minor, seeks an extraordinary writ to vacate the juvenile court’s orders made at the dispositional hearing terminating her guardianship and setting a hearing pursuant to Welfare and Institutions Code1 section 366.26. (Cal. Rules of Court, rule 8.452.) In addition to contesting the termination of her guardianship, petitioner contends there was insufficient evidence to support one of the jurisdictional findings, that she should have been found to be the

1 Further section references are to the Welfare and Institutions Code.

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minor’s presumed mother, and that there was inadequate compliance with the notice provisions of the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) We issued a stay of the section 366.26 hearing and requested supplemental briefing addressing the following: “1. What specific procedures, if any, were required to be followed prior to terminating petitioner’s guardianship? [¶] 2. If any specific procedures were required prior to terminating petitioner’s guardianship, were they adhered to in this case? [¶] 3. If required procedures to terminate petitioner’s guardianship were not adhered to, what is the appropriate remedy?” We shall now deny the petition without issuance of an order to show cause because no prima facie showing for relief was made and we shall vacate the stay. (See Sipper v. Urban (1943) 22 Cal.2d 138, 141 [application for writ required showing of prima facie case entitling petitioner to relief]; California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1155 [same]; Joyce G. v. Superior Court (1995) 38 Cal.App.4th 1501, 1509 [issuance of an alternative writ or order to show cause not required in every extraordinary writ proceeding]; Kowis v. Howard (1992) 3 Cal.4th 888, 893 [upon ascertaining that petition is in proper form and states a basis for relief, court may issue an alternative writ or order to show cause].) Petitioner’s contention that the inquiry and notice provisions of the ICWA were not satisfied is premature because it does not appear the juvenile court made an ICWA ruling at or before the challenged dispositional hearing as to whether ICWA applied to the proceedings. The most recent juvenile court order related to the ICWA is the transfer out order that “[t]he court has not yet determined whether ICWA is applicable.” Any opinion we could give on the adequacy of the inquiry and/or notice would be advisory. (See People v. Buza (2018) 4 Cal.5th 658, 693 [“We . . . abide by . . . a ‘ “cardinal principle of judicial restraint -- if it is not necessary to decide more, it is necessary not to decide more” ’ ”]; cf. Safai v. Safai (2008) 164 Cal.App.4th 233, 242-243 [“The Trustees have advanced no particular reason why this court should rule on those objections in the