Opinion
A145471 A145695 A146009 A147223
01-05-2017
In re C.M., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. T.S., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. SJ13020715)
I.
INTRODUCTION
Shortly after his premature birth, the juvenile court declared one-month-old C.M., an Indian child, to be a dependent of the juvenile court and placed him in a foster home able to address his medical needs. Appellant T.S. (Father) has filed four appeals from orders issued by the dependency court (A145471, A145695, A146009 & A147223). In the first two appeals (Nos. A145471 & A145695), Father challenges the juvenile court's dispositional order pursuant to Welfare and Institutions Code section 361 as not compliant with the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C.A. § 1901 et seq.). Appellant C.M. (Mother) filed a joinder in both appeals. We conclude, however, that Father's appeal of C.M.'s placement is moot. Father's counsel notified this court that the juvenile court granted an ex parte application on January 12, 2016, placing C.M. with his maternal aunt and uncle in compliance with ICWA and the recommendations of the Cherokee Nation and the Delaware Tribe of Indians (Delaware Tribe). We therefore grant the Alameda County Social Services Agency's (the Agency) motion to dismiss the appeals as moot.
The first two appeals (A145471 & A145695) were consolidated by order of this court on September 23, 2015. We issued a further order on May 2, 2016, consolidating the third and fourth appeals, Nos. A146009 and A147223, with Nos. A145471 and A145695, and dismissing No. A146009 as duplicative as to Father.
All further statutory references are to the Welfare and Institutions Code unless otherwise identified.
We grant respondent's request for judicial notice of the ex parte application and court order. (See Cal. Rules of Court, rule 8.155(a)(1)(A).) --------
The third appeal (No. A146009) was dismissed as duplicative as to Father by order of this court on May 2, 2016. Mother failed to file an opening brief or opposition to the Agency's motion to dismiss in No. A146009, so we grant the Agency's motion as to Mother in appeal No. A146009.
For the fourth appeal (No. A147223), Father's counsel filed a no issues statement in accordance with In re Sade C. (1996) 13 Cal.4th 952 (Sade C.). After conducting an independent review of the record, we find no arguable issues and affirm the juvenile court's order pursuant to section 388.
II.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2013, the Agency filed a section 300 petition for one-month-old C.M. C.M.'s mother (Mother) tested positive for opiates and alcohol at his birth. He was born at 32 weeks' gestation, weighing only three pounds. C.M. experienced opiate withdrawal and had fetal alcohol syndrome along with other medical complications. The petition alleged that due to Mother's substance abuse and domestic violence issues with Father, she could not properly care for C.M. Father had a history of domestic violence and numerous felony and misdemeanor convictions, including assault with a deadly weapon, theft, burglary, and battery. Both parents submitted to the Agency's recommendation at the detention hearing, and C.M. was ordered detained.
After his discharge from the hospital, C.M. was placed in a foster home that could manage his medical needs. C.M. could not be placed with his maternal grandmother because of her history of methamphetamine and heroin abuse, and also because the maternal grandmother and grandfather were reported to child protective services (CPS) 12 times during Mother's childhood. Father provided no information regarding the paternal grandmother. The Agency assessed the maternal aunt, Cassandra, for placement but found she was not suitable due to her law enforcement history. Cassandra was advised she could seek an exemption to allow for C.M.'s placement in her care.
At the jurisdiction hearing, Mother submitted on the Agency's report, and Father pled no contest. Mother stated she had no Native American ancestry; Father stated he had Native American ancestry, but he had no further information. The court found the section 300 allegations to be true and set the matter for a disposition hearing.
In the disposition report, the Agency stated that Cassandra was no longer interested in being assessed for placement and Father had still not provided contact information for the paternal grandmother. At the scheduled hearing, the Agency requested additional time to provide ICWA notification to the Delaware Tribe, so the court continued the hearing. Prior to the continued hearing, Father submitted updated information about membership in the Delaware Tribe and Cherokee Nation. The court again continued the hearing in light of this new information.
At the next hearing, the Agency reported that C.M. was eligible for membership in the Cherokee Nation and ICWA applied to his case. The matter was continued again to allow the Agency to retain an ICWA expert to testify about the case. The expert, Percy Tejada, recommended the Agency pursue tribal enrollment for C.M., but stated that the tribe would not intervene in the case. Tejada stated in his declaration that C.M. should not be returned to Mother or Father and C.M.'s current placement was in his best interest.
The court held a further hearing, and Father objected to C.M.'s placement because the maternal grandmother had not been assessed as a placement option. The Agency responded that the maternal grandmother had been assessed, but there were concerns given her lengthy CPS history and her substance abuse problems. The court adopted the Agency's recommendation to continue C.M.'s placement in his foster home. The court found ICWA applied to this case and active efforts had been made to prevent the breakup of the Indian family, but the efforts were unsuccessful. There was clear and convincing evidence that C.M. could not be returned to his parents' custody, so the preferred ICWA placement was his foster home.
During the next six months, the Agency was unable to find a suitable family placement for C.M. Both the maternal grandmother and Cassandra, the maternal aunt, failed to complete their assessments. Father was still unable to provide the contact information for the paternal grandmother and no longer requested placement with her.
In September 2014, Father filed an amended "Petition to Invalidate All Actions in the Matter of [C.M.] in Violation of 25 U.S.C.A. 1911 and 1912." Father argued the Agency failed to comply with ICWA in C.M.'s placement and Tejada's expert declaration was insufficient to support the court's disposition. The Agency opposed the petition arguing that it had made efforts to place C.M. with the maternal aunt and grandmother without success.
The court found that the Agency had made reasonable efforts to comply with ICWA, but the parties had not stipulated to the expert, Tejada, presenting his testimony by declaration, so the court scheduled a hearing for Tejada to present live testimony.
The court held a second disposition hearing which included testimony from Tejada and Father's ICWA expert, Nanette Gledhill. The court found Tejada's testimony more persuasive. The court found there was clear and convincing evidence of good cause to vary from the ICWA placement preferences.
On June 19 and July 13, 2015, respectively, Father filed two notices of appeal challenging the court's dispositional orders (Nos. A145471 & A145695).
Father's Section 388 Petition
On October 30, 2015, Father filed a section 388 petition requesting that C.M. be returned to his care. He stated he had stable housing, had taken anger management courses, and had separated from Mother.
On November 20, 2015, the Cherokee Nation filed its recommendation that C.M. be placed with his aunt, Cassandra.
The Agency filed an addendum report that Cassandra had completed the relative assessment process and she was approved for placement. Father objected to C.M.'s placement with Cassandra because he wanted C.M. placed with him.
The juvenile court denied Father's request for an evidentiary hearing on his section 388 petition and denied the petition.
On December 30, 2015, Father filed a notice of appeal challenging the denial of his section 388 petition (No. A147223). On July 21, 2016, counsel filed a no issues statement. A letter was sent to Father on that same date. The letter to Father was returned to sender. The letter was sent again on August 4, 2016. This court never received a response from Father.
C.M.'s Post-Appeal Placement
On January 12, 2016, the Agency filed an ex parte application and order to place C.M. with his maternal aunt and uncle, Cassandra and her husband. The aunt and uncle have ties to the Estom Yumeka Maidu Tribe and are committed to C.M. staying connected to his Native American heritage. Both the Cherokee Nation and Delaware Tribe recommended placement with the maternal aunt and uncle. The Cherokee Nation ICWA tribal representative stated: "Cherokee Nation recommends placement of C[.M.] with the maternal aunt, Cassandra []. This placement would be ICWA compliant[.] [T]he tribe believes it to be in the best interest of C.[M.] at this time to be placed with a relative." The court granted the application and ordered C.M. placed with his maternal aunt and uncle.
III.
DISCUSSION
A. Father's Appeals of C.M.'s Placement Are Moot
Father's appeals (Nos. A145471 & A145695) raise one argument: the court erred in finding there was good cause to deviate from ICWA preferred placement for C.M. Father requests this court to reverse the juvenile court's order and require the Agency to assist the maternal grandmother with completion of the assessment process and approve her for placement or to place C.M. with another suitable relative.
While these appeals were pending, the Agency filed an ex parte application to place C.M. with his maternal aunt, Cassandra, and her husband. As outlined above, both the Cherokee Nation and the Delaware Tribe of Indians approve the placement as compliant with ICWA and in C.M.'s best interests. The court ordered the placement effective January 12, 2016.
The Agency filed an appellate brief arguing the appeals in Nos. A145471 and A145695 are moot. Father did not file a reply brief.
C.M's current placement with his maternal aunt and uncle is in compliance with ICWA (see 25 U.S.C.A. § 1915; § 361.31), and renders Father's appeals moot.
It is a court's duty to decide " ' " 'actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.' " ' " (In re N.S. (2016) 245 Cal.App.4th 53, 58 (N.S.), quoting Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541.) 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." (N.S., at p. 60.)
Father's only issue in these two appeals is C.M.'s placement in a non-ICWA-compliant foster home. He sought placement with the maternal grandmother or other relatives. C.M. was placed with his maternal aunt and uncle, who have a connection to the Estom Yumeka Maidu Tribe and are committed to C.M. staying connected to his Native American heritage. There is no effective relief we could provide Father beyond that which he has obtained via the court's order. (N.S., supra, 245 Cal.App.4th at p. 62.) We conclude Father's appeals are now moot.
B. No Issues Raised from the Denial of Father's Section 388 Petition
We presume the juvenile court's decision is correct unless appellant can affirmatively establish that the trial court committed prejudicial error. (Sade C., supra, 13 Cal.4th at p. 994.) It is the appellant's burden to raise claims of reversible error or other defects and to present argument and authority for each point made. (Ibid.) If appellant fails to do so, the appeal may be dismissed. "If [s]he does not, [s]he may, in the court's discretion, be deemed to have abandoned [her] appeal. [Citation.] In that event, it may order dismissal. [Citation.] Such a result is appropriate here. With no error or other defect claimed against the orders appealed from, [we are] presented with no reason to proceed to the merits of any unraised 'points'—and, a fortiori, no reason to reverse or even modify the order[ ] in question. [Citation.]" (Ibid., fn. omitted.)
Father's counsel filed a no issues statement regarding the appeal of his section 388 petition. Father was notified by the clerk of this court via a letter sent in July and again in August 2016, which stated: "The Court offers you this opportunity to file a letter stating issues you feel should be reviewed on appeal. Your letter must be filed within 30 days from the date of this letter. Failure to do so will result in the dismissal of your appeal pursuant to the Appellate Rules." Father filed no response. We conclude Father has abandoned his appeal. Moreover, after our independent review of the record, we find no arguable issues to appeal. The appeal in No. A147223 is dismissed.
IV.
DISPOSITION
The consolidated appeals are dismissed as to both Mother and Father.
/s/_________
RUVOLO, P. J. We concur: /s/_________
REARDON, J. /s/_________
RIVERA, J.