Opinion
C095943
02-23-2023
In re J.J., a Person Coming Under the Juvenile Court Law. v. J.J., Defendant and Appellant. SACRAMENTO COUNTY DEPARTMENT OF CHILD, FAMILY AND ADULT SERVICES, Plaintiff and Respondent,
NOT TO BE PUBLISHED
Super. Ct. No. JD241457.
BOULWARE EURIE, J.
Appellant Ja.J. (father), father of the minor, J.J. (the minor), appeals from juvenile dependency jurisdiction and disposition orders concerning the minor. (Welf. &Inst. Code, §§ 300, 395.) Father's sole contention on appeal is that the Sacramento County Department of Child, Family and Adult Services (Department) and the juvenile court failed to comply with the inquiry and notice requirements of the Indian Child Welfare Act (ICWA) because the Department failed to contact particular extended family members to inquire about the ICWA. (25 U.S.C. § 1901 et seq.; § 224.2.)
Undesignated statutory references are to the Welfare and Institutions Code.
During the pendency of this appeal, further action regarding ICWA inquiry was undertaken by the Department and a further ICWA compliance hearing was conducted in the juvenile court. The record was augmented regarding these matters. We will dismiss the appeal as moot.
FACTUAL AND PROCEDURAL BACKGROUND
The underlying facts of the dependency are not at issue, and we do not recite them here. We limit our recitation of the background to those facts relevant to the ICWA inquiry and noticing requirements.
On July 20, 2021, the Department received a referral regarding an incident of domestic violence between the mother of the minor, J.C. (mother), and the stepfather, J.I. On July 30, 2021, the Department filed an original petition alleging that the minor came within the provisions of section 300, subdivision (b), substantial risk of harm. In the ICWA-010 form attached to the petition, it was reported a social worker spoke with mother and the maternal great-grandmother about whether the minor had any Native American ancestry. Based upon the results of these conversations, the social worker concluded there was no reason to believe the minor was a Native American child.
The August 2, 2021 detention report reflected that mother told the Department that neither she nor father had any Native American ancestry. The detention report did not reflect whether the Department had inquired of the paternal great-grandmother about whether there was any Indian ancestry on the paternal side of the family, and the Department had not located the father at the time it authored the detention report. At the August 3, 2021 detention hearing, mother submitted an ICWA-20 form indicating that she did not have any Native American ancestry, and the juvenile court found that there was no evidence that the ICWA was applicable as to mother.
At the September 14, 2021 jurisdiction hearing, father made his first appearance and indicated that he may have some Apache Indian ancestry but did not know which Apache tribe he might be affiliated with. Father believed that he had some Apache ancestry because of a conversation he had been able to have when he met his biological father, who had introduced him to his paternal grandparents, Pete and Juanita M. Both Pete and Juanita M. were deceased. The jurisdiction hearing was continued.
At the November 2, 2021 continued jurisdiction hearing, father's counsel advised that father had not yet completed the supplemental ICWA questionnaire. The court found that there was sufficient information to have a reason to believe that the minor was an Indian child.
In a November 24, 2021 ICWA compliance report, the Department documented the efforts it had made to inquire into whether the minor was an Indian child. The documentation does not reflect that the Department contacted the paternal greatgrandmother, Dolores L., regarding the minor's ancestry. The Department mistakenly listed Juanita M. (deceased) as father's biological mother, rather than father's biological grandmother; listed Allen M. (deceased) as father's biological father, and did not include Rory M. (biological paternal grandfather) or Pete M. (biological paternal greatgrandfather). Father did not provide the Department with any information in the ICWA-020 form other than his name, that he may be eligible for Apache membership of an unknown tribe location, and that he is the father of the minor. The Department included both father's biological name and adoptive name in the inquiry, utilized the Bureau of Indian Affairs (BIA) list of designated tribal agents to identify five Apache tribes, and reached out to all five tribe's designated agents by way of telephone and e-mail. The Jicarilla Apache Nation responded to inform the Department that the minor is not eligible for membership, father and the grandparents were not members, and in the future, more information would be helpful in assessing ICWA eligibility. The Department requested the juvenile court find it had exercised due diligence in attempting to contact tribes and provide notice.
At the November 30, 2021 hearing regarding ICWA compliance, father had still not completed the ICWA questionnaire. The court directed father's counsel to get information regarding his family tree to the Department so the Department could make further appropriate inquiry based on that information.
On December 29, 2021, the Department filed an ICWA compliance report demonstrating additional efforts to reach the four remaining tribes on November 23, 2021, December 22, 2021, and December 28, 2021, with no responses in return. At the January 4, 2022 hearing regarding ICWA compliance, counsel for the Department noted there were four attempts made to reach the four remaining tribes; responses had not yet been received from the remaining tribes; and the Department's position that the ICWA did not apply. Father's counsel represented, "My client did provide all the information he had regarding his family members that have connection with the tribe."
On March 21, 2022, the Department filed another ICWA compliance report listing further contact attempts with no responses from the remaining tribes. At the March 21, 2022 contested disposition hearing and ICWA compliance hearing, the Department asked the juvenile court to adopt the dispositional findings and orders and find that the ICWA did not apply. Counsel for the minor requested a finding that "[the minor] is not an Indian child at this time" knowing that "if something new comes up, then we can raise that." The juvenile court adjudged the minor a dependent; removed the minor from both parents; found detriment as a reason not to place the minor with father; adopted the findings and orders, including the mental health assessments for mother and father for the purpose of tailoring services; ordered services for both parents; and set the matter for a status hearing. During the ICWA determination, the juvenile court found the Department complied with the inquiry and notice requirements of the ICWA. There was no reason to know or believe the minor was an Indian child within the meaning of the ICWA, and no further ICWA notice was required. The juvenile court further instructed the parties that "if at any time you become aware of information that provides reason to know or reason to believe that the child is an Indian child other than what is already been provided to the Court, that you provide that information to the Court immediately."
Father filed a timely notice of appeal. Subsequently, the record on appeal was augmented to include the following pertinent information. At the September 27, 2022 status review hearing, the juvenile court continued the minor as a dependent child and placed him in mother's physical custody with family maintenance services, terminated father's reunification services, set an in-home review hearing on March 21, 2023, and ordered the parents to appear at the hearing. On October 11, 2022, the Department filed a stipulation and request for order following meet and confer requesting a further ICWA inquiry hearing on November 15, 2022, "to present ongoing inquiry efforts," and the juvenile court scheduled the further ICWA inquiry hearing. This further ICWA inquiry hearing took place on December 6, 2022. Following the hearing, the juvenile court found that the Department complied with the ICWA. There was no reason to believe the minor was an Indian child within the meaning of the ICWA, and no further notice was required.
On this court's own motion, the record on appeal was augmented to include the juvenile court's minute order following the further ICWA inquiry hearing, dated December 6, 2022.
DISCUSSION
Father contends that the Department and the juvenile court failed to comply with the duty of inquiry under the ICWA. Specifically, he contends the Department failed to inquire of the paternal great-grandmother and misreported the information it had been given by father about the Native American ancestry of his biological grandparents, referring to Juanita M. as his mother instead of his grandmother. The Department concedes it had not undertaken an appropriate ICWA inquiry at the time of the juvenile court's jurisdiction and disposition orders. But the Department contends the appeal is now moot because, in the interim, it has engaged in the further inquiry that was lacking in this case and scheduled a further ICWA compliance hearing to present ongoing inquiry efforts. In his reply brief, father contends that even though the minor has been placed with his mother under a family maintenance plan and a hearing on further ICWA compliance was scheduled, "[t]he [d]isposition order should still be reversed and remanded so that the juvenile [court] can ensure the Department has complied with the inquiry provisions of the ICWA and related California law." Father emphasizes that the Department acknowledged it failed to fulfill its further inquiry obligations as of the date of the disposition hearing and the appeal is not moot because the documents in the augmented record do not indicate whether the Department carried out any further queries into the deficient areas of inquiry. After father filed his reply, this court augmented the record with the juvenile court's minute order following the further ICWA inquiry hearing, dated December 6, 2022. We conclude the further ICWA proceedings in the juvenile court render this appeal moot.
As this court recently explained:" 'The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for removal of Indian children from their families, and by permitting tribal participation in dependency proceedings. [Citations.] A major purpose of the ICWA is to protect "Indian children who are members of or are eligible for membership in an Indian tribe." [Citation.]' (In re A.W. (2019) 38 Cal.App.5th 655, 662.) The ICWA defines an' "Indian child"' as a child who 'is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.' (25 U.S.C. § 1903(4).) The juvenile court and the social services department have an affirmative and continuing duty, beginning at initial contact, to inquire whether a child who is subject to the proceedings is, or may be, an Indian child. (Cal. Rules of Court, rule 5.481(a); § 224.2, subd. (a).)" (In re G.A. (2022) 81 Cal.App.5th 355, 360, review granted Oct. 12, 2022, S276056.)
"[S]ection 224.2 creates three distinct duties regarding ICWA in dependency proceedings. First, from the Agency's initial contact with a minor and his [or her] family, the statute imposes a duty of inquiry to ask all involved persons whether the child may be an Indian child. (§ 224.2, subds. (a), (b).) Second, if that initial inquiry creates a 'reason to believe' the child is an Indian child, then the Agency 'shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.' (Id., subd. (e), italics added.) 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. (See § 224.2, subd. (c) [court is obligated to inquire at the first appearance whether anyone 'knows or has reason to know that the child is an Indian child']; id., subd. (d) [defining circumstances that establish a 'reason to know' a child is an Indian child]; § 224.3 [ICWA notice is required if there is a 'reason to know' a child is an Indian child as defined under § 224.2, subd. (d)].)" (In re D.S. (2020) 46 Cal.App.5th 1041, 1052.) We review claims of inadequate inquiry into a child's Native American ancestry for substantial evidence. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430.)
In two recent decisions on appeals from orders terminating parental rights, our sister appellate courts have held that further ICWA compliance while a case is pending on appeal does not moot deficiencies in an ICWA inquiry at the time a notice of appeal is filed. (In re E.V. (2022) 80 Cal.App.5th 691; In re M.B. (2022) 80 Cal.App.5th 617.) However, a third court has held that the appeal from an order terminating parental rights was moot in light of additional ICWA investigation during pendency of the appeal. (In re Allison B. (2022) 79 Cal.App.5th 214.) In a fourth opinion, with the same procedural posture as the case at hand, the Court of Appeal observed regarding these disparate decisions, "[w]hatever the merits of these opinions, they do not concern the procedural posture here: an ICWA appeal at the jurisdiction and disposition stage where there will necessarily be further dependency proceedings in the juvenile court (at which continuing ICWA duties apply) and a basis for later appeal if for some reason the remedial ICWA investigation the Department is now undertaking falls short in Father's view." (In re Baby Girl M. (2022) 83 Cal.App.5th 635, 638.) We agree that when an appeal is taken from the dispositional order regarding ICWA compliance, and further ICWA compliance actions are undertaken superseding the juvenile court's earlier ICWA finding, the considerations regarding mootness are distinct from those where the case has reached termination of parental rights.
As our Supreme Court recently explained, an appeal becomes moot when there is no effective relief we can provide the appellant. (In re D.P. (2023) 14 Cal.5th 266, 276278; see In re N.S. (2016) 245 Cal.App.4th 53, 60 ["the critical factor in considering whether a dependency appeal is moot is whether the appellate court can provide any effective relief if it finds reversible error"].) Here, the resolution father seeks is an order that the Department and juvenile court fulfill their inquiry and notice obligations under ICWA and related California law. Because the documents in the augmented record indicate that the Department has engaged in further inquiry and because the juvenile court has now made its findings regarding ICWA applicability based on this further inquiry and notice in the first instance, there is no effective relief we can now provide. By implication, the new findings regarding ICWA made after the appeal was filed in this matter vacate the previous ICWA findings. 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 further inquiry and further hearing on ICWA compliance. Such "an empty exercise with a preordained outcome" would do nothing to further the purposes of the ICWA. (In re E.W. (2009) 170 Cal.App.4th 396, 402.) We conclude this appeal is moot. (See, e.g., In re N.S., at p. 60.)
DISPOSITION
The appeal is dismissed.
We concur: ROBIE, Acting P. J., MAURO, J.