Opinion
B322159
11-21-2023
In re Forest M. et al., Persons Coming Under the Juvenile Court Law. v. Timothy B. et al., Defendants and Appellants LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant Joy M. Jesse Frederic Rodriguez, under appointment by the Court of Appeal, for Defendant and Appellant Timothy B. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Peter Ferrera, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. 21CCJP04792AB, Tiana J. Murillo, Judge. Dismissed as moot in part and affirmed in part.
Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant Joy M.
Jesse Frederic Rodriguez, under appointment by the Court of Appeal, for Defendant and Appellant Timothy B.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Peter Ferrera, Deputy County Counsel, for Plaintiff and Respondent.
LAVIN, J.
INTRODUCTION
Timothy B. (father) and Joy M. (mother) challenge the juvenile court's jurisdictional findings and dispositional orders made June 7, 2022. Father contends that the court erred in ordering him to complete a full drug and alcohol program. However, a permanency planning hearing pursuant to Welfare and Institutions Code, section 366.26 was set and held, and parental rights were terminated. We conclude that father's appeal is moot and must be dismissed.
All undesignated statutory references are to the Welfare and Institutions Code.
On appeal, mother does not contest the merits of the court's adjudication. Instead, mother contends that reversal is warranted because the court failed to make any finding with respect to the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA), and because the Los Angeles County Department of Children and Family Services (Department) failed to satisfy the formal notice requirements of ICWA and related California law (§ 224 et seq.). We find the court concluded that ICWA did not apply and did not err in doing so, and accordingly, we affirm.
FACTS AND PROCEDURAL BACKGROUND
1. General Background
In October 2021, the Department received a referral alleging that the children, Forest M. (born October 2018) and Isabella B. (born November 2020), had been left without an appropriate caretaker and that Forest had a large bruise on his tailbone. Megan J., the sister of mother's roommate, brought the children to the Glendora Police Department when she was no longer able to look after them. While visiting her brother, Megan saw that he was babysitting the children while "under the influence," became concerned, and took the children. Mother had left the children with her roommate and failed to meet with him the following day to pick them up. When Megan spoke with mother, mother stated that she believed that Forest had been physically abused by father but could not provide more details.Despite Megan's repeated requests, mother did not come for the children. The Department detained the children as there was no parent or guardian available to care for them and filed a section 300 petition on behalf of the children alleging that they were at substantial risk of serious physical harm as a result of mother's failure to make an appropriate plan for their ongoing care and supervision.
A social worker met with the children and observed no bruising on Forest.
In a last minute information filed before the detention hearing, the Department reported that a social worker had interviewed father, who was looking for the children. He and mother were married but divorcing. Father disclosed that he was not Forest's biological father but was raising him and was the only father Forest knew. Father stated that mother suffered from mental health issues and had been diagnosed with "Severe Bipolar with delusions and Schizophrenia" and refused to take medication. Father denied the allegations that he physically abused the children.
At the initial detention hearing, the juvenile court made emergency detention findings and trailed the matter to permit the Department to assess releasing the children to father.
When a social worker went to father's home to interview him, he refused to let her enter. Father stated that mother had been having mental health issues and leaving the children with him for weeks at a time. The social worker interviewed mother, who spoke erratically. She confirmed that she had been diagnosed with bipolar disorder and disclosed that she had been using methamphetamine for the past five months but recently stopped. She stated that father also abused drugs and had not stopped. Mother said that father would not let the social worker enter the home because it was filthy. The Department recommended that the children be detained from both parents.
At the continued detention hearing, the court found father to be the presumed father of both children, ordered the children detained from mother, and released the children to father over the Department's objection. The court ordered visitation for mother and instructed that father could not be the monitor and that visits could not take place in father's home.
In December 2021, the Department filed a first amended petition that additionally alleged that the children were at substantial risk of serious physical harm because of mother's abuse of methamphetamine and her untreated mental and emotional problems.
In its jurisdiction/disposition report, the Department reported that a social worker had visited father's home. Father stated that he was unavailable to be interviewed but allowed the social worker to enter. The social worker observed a person in father's bedroom wrapped in a blanket. Father denied that it was mother but did not allow the social worker to speak to the individual to confirm. The social worker rescheduled the interview for another day, but father failed to appear or to respond to calls or messages.
A social worker previously had an introductory meeting with mother in her trailer in a remote location in the desert. Mother had disclosed that she used methamphetamine when her children are not around. Mother appeared "delusional" and "seemed to talk very quickly from one subject to another." She denied having a history of mental health issues. The trailer was no longer at the same location when a social worker drove out to interview her in connection with the jurisdiction/disposition report. The Department was unable to reach mother by phone, as her line was disconnected.
Forest's biological father and the fathers of the children's other half-siblings reported that mother had used methamphetamine and other illicit drugs in the past. The paternal grandmother told a social worker that she had seen mother using illicit drugs at the father's home after the children were removed and that mother continued to be at father's home "all the time." Paternal grandmother also stated that father had left the children at her home and she had been watching them for two weeks. She believed it was" 'definitely a possibility'" that father was using illicit drugs.
The court found Ferdinando D. to be Forest's biological father at the detention hearing, although it does not appear that he ever completed DNA testing.
The Department filed a detention report and an ex parte request pursuant to section 385 that the children be detained from father, which the court granted. Shortly thereafter, the Department filed a second amended petition additionally alleging that the children were at substantial risk of serious physical harm as the result of father allowing mother to frequent the children's home and have unlimited access to the children in violation of the court's orders.
In April 2022, the court held the jurisdiction hearing, at which it sustained the allegations of the second amended petition with respect to both mother and father. At the disposition hearing on June 7, 2022, the court declared the children to be dependents of the court and removed them from the custody of the parents. The court ordered father to participate in a full drug and alcohol program, over his counsel's objection. The court found parents lived in San Bernardino County and ordered the case transferred to that county.
Mother and father timely appealed.
After this appeal was filed, a juvenile court in San Bernardino County terminated mother and father's parental rights.
Pursuant to Evidence Code section 452, subdivision (d), we grant the Department's motion and take judicial notice of the minute orders of the San Bernardino County Juvenile Court on August 29, 2023.
2. Facts Relevant to ICWA
In October 2021, mother filed an ICWA-020 form stating that she had no knowledge of any Indian ancestry for the children. When a social worker spoke with father, he reported that mother had no Indian ancestry but he believed "he has Blackfoot history but he is not sure." At the initial detention hearing, the court stated: "I will note that I do have [father's] paperwork with respect to Indian status. He does indicate that he potentially has Blackfoot Cherokee Tribe American Indian ancestry, so I will defer on the ICWA finding and ask the Department to investigate."
The juvenile court was presumably referring to an ICWA-020 form filed by father, but this document does not appear in the record.
In December 2021, a social worker asked the paternal grandmother about her Indian ancestry. She stated that she is not registered with a tribe but that she believed that her father was registered with the Cheyenne. She informed the social worker that she would contact her uncle and provide the Department with a family tree for ICWA purposes.
In March 2022, a social worker reached out to paternal grandmother on multiple occasions concerning the children's Indian ancestry. The Department ultimately received a response from paternal grandmother stating:" 'I'm so sorry. All I can tell you is my grandmother was Cheyenne and Comanche. My cousin was looking for the paperwork, but she said she had to go thru a ton of boxes to find it. She said she would send me copies of everything when she found it. She has to go thru boxes of my grandmother's and her mother's things to locate it and that stuff was boxed ages ago ....'" The social worker thanked paternal grandmother for the information but stated that she still had to speak with her to make a family tree. The following day, the social worker spoke with paternal grandmother, who reported that she believed she has Native American heritage through her father. She stated that she was not registered with a tribe and never lived on tribal land, but believed her family was Cheyenne and Comanche. She believed that her grandmother (paternal great-great-grandmother) and great-grandmother (paternal great-great-great-grandmother) were registered with the Cheyenne and Comanche tribes. She did not have a tribal number but recalled that the paternal great-great-great-grandmother was referred to as the "Comanche Firecracker."
The social worker also reached out to father in connection with the ICWA inquiry. Father was "slow to respond, and sounded dazed and confused." The social worker asked for the name of his biological father multiple times. Father ultimately responded that he did not know and hung up the phone.
The name of paternal grandfather (father's biological father) is identified in the ICWA-030 form.
In ICWA-030 forms dated March 2022, the Department indicated that the children may be eligible for membership in the Cheyenne and Arapaho Tribes of Oklahoma, the Cheyenne River Sioux Tribe of the Cheyenne River Reservation in South Dakota, the North Cheyenne Tribe of the Northern Cheyenne Indian Reservation in Montana, and the Comanche Nation in Oklahoma. The form noted that a social worker had spoken with paternal grandmother who reported that she is not registered with the tribe, but that the children's great-great-grandmother Eda S. was registered with the Cherokee and the Comanche. It also identified the names of the children's biological grandparents, great-grandparents, paternal great-great-grandparents, and paternal great-great-great-grandparents and any tribal affiliations. These notices were mailed to each of the identified tribes as well as the Bureau of Indian Affairs (BIA).
In April 2022, the Department received letters from the Comanche Nation, the Cheyenne River Sioux Tribe, and the Cheyenne and Arahapo Tribes stating that the children were not eligible for membership and that they did not intend to intervene. As of June 1, 2022, a response remained pending from the North Cheyenne Tribe of the Northern Cheyenne Indian Reservation.
The North Cheyenne Tribe of the Northern Cheyenne Indian Reservation received the Department's notice on April 4, 2022, more than 60 days prior to the hearing. (See In re Isaiah W. (2016) 1 Cal.5th 1, 11 [section 224.3, subdivision (e)(3) authorizes the court to determine that ICWA does not apply if, after proper and adequate notice has been given, neither a tribe nor the BIA has provided a determinative response within 60 days].)
At the disposition hearing, counsel for the Department requested that the court make a no ICWA finding. The court did so but noted "that should circumstances change for whatever reason, if additional relatives present themselves, . . . ICWA remains an ongoing obligation ...."
DISCUSSION
Father contends that the court's dispositional order requiring him to participate in a full drug and alcohol program was an abuse of discretion because the record did not support that he abused drugs or alcohol. The Department moved to dismiss father's appeal on the grounds that father's challenge is moot because a section 366.26 hearing was set and held, and parental rights were terminated. Father did not respond to the Department's motion.
Mother argues that the court erred by failing to make a finding regarding the applicability of ICWA and that the Department failed to provide notice to the Blackfeet tribe despite having a "reason to know" that the children were Indian children.
The Department contends that the court did make a finding that ICWA did not apply and that this finding was supported by substantial evidence. The Department argues that it fulfilled its duty of further inquiry and that there was no reason to know that the children were Indian children with respect to the Blackfeet tribe.
We conclude that father's appeal is moot and that substantial evidence supports the court's ruling that ICWA does not apply to the children.
1. Father's challenge to the court's dispositional order is moot.
It is a fundamental principle of appellate practice that a reviewing court will not decide an issue if it cannot provide the appellant any practical relief. (In re I.A. (2011) 201 Cal.App.4th 1484, 1489-1490.)"' "A judicial tribunal ordinarily may consider and determine only an existing controversy, and not a moot question or abstract proposition ...."' [Citation.] An important requirement for justiciability is the availability of 'effective' relief-that is, the prospect of a remedy that can have a practical, tangible impact on the parties' conduct or legal status." (Id. at p. 1490.)
Since this appeal was noticed, the matter was transferred to the San Bernardino County Juvenile Court, a section 366.26 permanency planning hearing was set and held, and mother and father's parental rights to the children were terminated. Father did not file a petition for extraordinary writ challenging the court's orders terminating family reunification services and setting a section 366.26 hearing. (§ 366.26, subd. (1)(1).) Thus, these orders are final. There is no way the relief father requests-reversal of the dispositional order-could affect the outcome of this dependency action. When reunification services were terminated and a section 366.26 hearing was scheduled, the focus shifted from reunification with the parents to the minors' interest in permanence and stability. (In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Neither father's receipt of nor performance of services remained before the court. Thus, we agree with the Department that father's appeal of the disposition order is moot and that his appeal must be dismissed.
Mother argues that the consideration of this postjudgment evidence is inappropriate, citing In re Zeth S. (2003) 31 Cal.4th 396, 405. However, in In re Josiah Z. (2005) 36 Cal.4th 664, 676, our Supreme Court clarified that "an appellate court should not consider postjudgment evidence going to the merits of an appeal and introduced for the purposes of attacking the trial court's judgment" and held that such evidence could be considered on a motion to dismiss a dependency appeal based on appellate counsel's best-interests assessment. We consider the postjudgment evidence for the limited purpose of determining whether effective relief could be granted to father, not to attack the merits of the juvenile court's judgment. (See In re Jessica K. (2000) 79 Cal.App.4th 1313, 1315.) The postjudgment evidence presented does not foreclose mother from obtaining effective relief on her ICWA challenge, which we address below.
2. Substantial evidence supports the court's conclusion that ICWA does not apply to the children.
2.1. Relevant Law and Standard of Review
" 'ICWA is a federal law giving Indian tribes concurrent jurisdiction over state court child custody proceedings that involve Indian children living off of a reservation. [Citations.] Congress enacted ICWA to further the federal policy" 'that, where possible, an Indian child should remain in the Indian community ....'" '" (In re A.R. (2022) 77 Cal.App.5th 197, 203.)
"ICWA and governing federal regulations [citation] set minimal procedural protections for state courts to follow before removing Indian children and placing them in foster care or adoptive homes." (In re Rylei S. (2022) 81 Cal.App.5th 309, 316.)
The California Legislature has imposed an affirmative and continuing duty of inquiry on both the Department and the juvenile court. (§ 224.2, subds. (a), (c); In re Y.W. (2021) 70 Cal.App.5th 542, 552.) "The duty to inquire begins with the initial contact, including, but not limited to, asking the party reporting child abuse or neglect whether the party has any information that the child may be an Indian child." (§ 224.2, subd. (a).)
There is "reason to believe" a child is an Indian child when the court or social worker "has information suggesting" the "parent of the child or the child" is a member of a tribe or eligible to be a member. (§ 224.2, subd. (e)(1).) "Information suggesting membership or eligibility for membership includes, but is not limited to, information that indicates, but does not establish, the existence of one or more of the grounds for reason to know enumerated in paragraphs (1) to (6), inclusive, of subdivision (d)." (Ibid.)
Section 224.2, subdivision (e)(2) requires "further inquiry regarding the possible Indian status of the child . . . as soon as practicable" when reason to believe exists, but the court or agency "does not have sufficient information to determine if there is reason to know the child is an Indian child." This further inquiry includes but is not limited to interviewing parents and extended family members; contacting the BIA, the State Department of Social Services, "and any other person that may reasonably be expected to have information" regarding the tribes to which the child might be a member or eligible for membership; and contacting the tribes themselves "and any other person that may reasonably be expected to have information" about whether the child is a member or eligible for membership. (§ 224.2, subd. (e)(2)(A)-(C).)
If there is "reason to know" that the child is an Indian child, the party seeking foster care placement shall provide notice to the relevant tribes in accordance with section 224.3, subdivision (a)(5). (§ 224.2, subd. (f).)
Subdivision (d) of section 242.2 provides: "There is reason to know a child involved in a proceeding is an Indian child under any of the following circumstances: [¶] (1) A person having an interest in the child, including the child, an officer of the court, a tribe, an Indian organization, a public or private agency, or a member of the child's extended family informs the court that the child is an Indian child. [¶] (2) The residence or domicile of the child, the child's parents, or Indian custodian is on a reservation or in an Alaska Native village. [¶] (3) Any participant in the proceeding, officer of the court, Indian tribe, Indian organization, or agency informs the court that it has discovered information indicating that the child is an Indian child. [¶] (4) The child who is the subject of the proceeding gives the court reason to know that the child is an Indian child. [¶] (5) The court is informed that the child is or has been a ward of a tribal court. [¶] (6) The court is informed that either parent or the child possess an identification card indicating membership or citizenship in an Indian tribe."
"[T]he juvenile court 'has a responsibility to ascertain that [the Department] has conducted an adequate investigation'" (In re D.F. (2020) 55 Cal.App.5th 558, 568) and must determine whether ICWA applies to the child's proceedings (In re Y.W., supra, 70 Cal.App.5th at p. 552). The court may conclude ICWA does not apply to the proceedings if it finds the Department has satisfied its duty of inquiry and due diligence as required in section 224.2 and there is no reason to know the child is an Indian child. (§ 224.2, subd. (i)(2).)
"Although [m]other did not raise [her] objections below, a challenge to ICWA notice compliance is not forfeited due to a failure to object in the trial court. [Citation.] The trial court's finding that ICWA notice was adequate is reviewed for substantial evidence. [Citations.]" (In re J.T. (2007) 154 Cal.App.4th 986, 991.)
2.2. Analysis
As a preliminary matter, mother's contention that the court erred by failing to make any findings as to the applicability of ICWA is not supported by the record. At the disposition hearing, the counsel for the Department explained the notices it had provided to tribes, the responses it had received, and requested that the court find that ICWA did not apply in the case. The court found that ICWA did not apply, although it recognized that ICWA was a continuing obligation. Thus, we do not agree that the court "failed to follow up on its order for [the Department] to investigate and send the appropriate notices."
Mother further contends that father's statement that he believed "he has Blackfoot history but he is not sure" caused the Department to have a "reason to know" that the children were members of the Blackfeet tribe and that formal notice to that tribe was required. This argument is inconsistent with the law.
There is no "Blackfoot" tribe listed in the Federal Registry. The tribe with the closest name is the Blackfeet tribe. (87 Fed.Reg. 22552 (Apr. 15, 2022).) The Blackfoot tribe is a related tribe found in Canada, and thus is not entitled to notice of dependency proceedings. (In re L.S. (2014) 230 Cal.App.4th 1183, 1198.)
We note that "section 224.2 creates three distinct duties regarding ICWA in dependency proceedings. First, from the [Department]'s initial contact with a minor and his family, the statute imposes a duty of inquiry to ask all involved persons whether the child may be an Indian child. [Citation.] Second, if that initial inquiry creates a 'reason to believe' the child is an Indian child, then the [Department] 'shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.' [Citation.] Third, if that further inquiry results in a reason to know the child is an Indian child, then the formal notice requirements of section 224.3 apply." (In re D.S. (2020) 46 Cal.App.5th 1041, 1052.) None of the cases cited by mother support that a parent's statement that he or she may possibly have some tribal ancestry establishes a "reason to know" that the child is an Indian child. Rather, courts have held that such statements trigger the duty of further inquiry. (See, e.g., In re T.G. (2020) 58 Cal.App.5th 275, 292 [mother's stated belief that she had Cherokee ancestry on her maternal side and possible Indian ancestry through paternal grandfather triggered Department's duty of further inquiry]; In re D.F., supra, 55 Cal.App.5th at pp. 569-570 [holding that mother's statement that she may have Indian ancestry triggered duty of further inquiry, but that "the juvenile court and [Department's] further investigation did not yield results that pushed their reason to believe the children are Indian children, to reason to know the children are Indian children"].) Put simply, "[a] suggestion of
Indian ancestry is not sufficient under ICWA or related California law to trigger the notice requirement." (In re D.F., at p. 571.)
Although father's statements regarding "Blackfoot" ancestry were uncertain, the court properly concluded that there was reason to believe that the children may be Indian children and that the Department had a duty of further inquiry. (§ 224.2, subd. (e)(2).) The court observed at the initial detention hearing that father "potentially has Blackfoot Cherokee Tribe American Indian ancestry, so I will defer on the ICWA finding and ask the Department to investigate." Even if mother had contended that the Department's further inquiry into whether the children were potentially eligible for membership in the Blackfeet tribe was inadequate (she did not), we would conclude that substantial evidence supports the court's implied finding that the Department complied with its obligations of further inquiry pursuant to section 224.2, subdivision (e). The Department investigated father's claims by speaking with his biological mother, paternal grandmother, who stated that her Native American heritage came from her father, which was consistent with father's statements concerning the source of his Native American heritage. (§ 224.2, subd. (e)(1).) The paternal grandmother repeatedly stated that the family's background was Cheyenne and Comanche. Paternal grandmother contacted family members and was able to provide the names (and, in some instances, birth dates) of several generations of relatives she understood to be members of the Cheyenne and Comanche tribes.
Paternal grandmother did not corroborate father's uncertain claim of possible Blackfoot or Blackfeet ancestry, nor did she identify any relative she understood to be a member of those tribes. The Department was not required to "cast about" for information or pursue unproductive investigative leads. (In re Levi U. (2000) 78 Cal.App.4th 191, 199.) After speaking with paternal grandmother, the Department had no reason to believe that the children could be eligible for membership in any tribes but the Cheyenne and the Comanche, and it duly notified those tribes of the proceedings.
We therefore conclude that the court's finding that ICWA does not apply to the children is supported by substantial evidence and that there was no obligation to give formal notice to the Blackfeet tribe.
DISPOSITION
Father's appeal of the disposition order is dismissed as moot. The juvenile court's findings and orders of June 7, 2022 are otherwise affirmed.
WE CONCUR: EDMON, P. J., ADAMS, J.