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In re C.P.

California Court of Appeals, First District, Fifth Division
Apr 30, 2009
No. A122677 (Cal. Ct. App. Apr. 30, 2009)

Opinion


In re C.P., a Person Coming Under the Juvenile Court Law. SAN MATEO COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. CH. P., Defendant and Appellant. A122677 California Court of Appeal, First District, Fifth Division April 30, 2009

NOT TO BE PUBLISHED

San Mateo County Super. Ct. No. 77912.

Bruiniers, J.

Judge of the Contra Costa County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

In this juvenile dependency proceeding, Ch. P. (Mother) appeals a postdisposition order granting de facto parent status to her daughter’s foster parents. She also argues respondent failed to provide proper notice of the proceeding to Indian tribes as required by the Indian Child Welfare Act (ICWA, 25 U.S.C. § 1901 et seq.). While this appeal was pending, the de facto parent status of the foster parents was terminated and new ICWA notice was sent by respondent. Accordingly, we dismiss the appeal as moot.

Background

On January 11, 2008, the San Mateo County Human Services Agency (Agency) filed a juvenile dependency petition pursuant to Welfare and Institutions Code section 300, subdivision (b), on behalf of C.P. (born June 2007). After two amendments, the petition alleged: (1) Mother, who had a history of substance abuse, was terminated from the shelter where she had been living with C.P. for failure to comply with the rules of the program—specifically, by testing positive for drugs and alcohol, failing to pay deposits, having friends in the shelter after hours, and leaving C.P. unattended—thus placing the child at risk of significant harm and neglect; and (2) Mother had tested positive for marijuana at C.P.’s birth and had failed to comply with a voluntary case plan. C.P. was detained and placed in shelter care.

All statutory references are to the Welfare and Institutions Code.

The detention report stated that Mother informed the Agency on January 10, 2008, that her mother had Cherokee blood, but she did not know whether they were enrolled in an Indian tribe. She apparently also told the Agency her father might have Blackfeet heritage. The Agency’s combined jurisdiction and disposition report, as amended March 5, 2008, stated that ICWA notice had been sent to three Cherokee tribes and the Blackfeet Tribe of Montana, and all four tribes had responded that, based on the information provided, C.P. was not a member or eligible for membership.

At a March 5, 2008, combined jurisdiction and disposition hearing, the court sustained the petition as amended, declared C.P. a dependent child of the court and removed her from Mother’s custody. The court found that C.P. is or may be an Indian child, that ICWA notice had been provided as required by law, and that “proof of ICWA [is] to be ongoing.”

On April 16, 2008, C.P. was placed with “fost/adopt parents” (foster parents who were also prospective adoptive parents) Terry and Denise W. On July 17, 2008, Terry and Denise W. requested de facto parent status.

In its August 18, 2008, six-month status report, the Agency wrote that the ICWA does not apply because all four tribes confirmed that C.P. was not eligible for membership. The Agency recommended termination of reunification services because Mother had only begun to utilize services in the previous three months and it was not substantially probable that C.P. could be returned to her within six months.

At the August 25, 2008, six-month hearing, the court asked if there was any opposition to the request for de facto parent status and Mother’s attorney stated she had not received the petition for de facto parent status and asked that the court delay ruling on the petition until the contested six-month review hearing. The court denied the request to delay the ruling and gave Mother’s attorney an opportunity to review the petition. Mother’s attorney then opposed the request on the ground that C.P. had only been in the fost/adopt home three months. The court granted the petition. The six-month status review was continued to December 1, 2008 for a contested hearing. On September 10, 2008, Mother appealed from the “August 25, 2008, appointment of de facto parent.”

In its February 9, 2009, 12-month addendum report, the Agency recommended C.P.’s return to Mother’s custody. The Agency also wrote that new ICWA notice had been sent to the three Cherokee tribes in December 2008. Two of the tribes had responded and more than 60 days had passed since the third tribe had been provided notice. The Agency recommended the court find that the ICWA did not apply. (See § 224.3, subd. (e) [“If proper and adequate notice has been provided pursuant to Section 224.2, and neither a tribe nor the Bureau of Indian Affairs has provided a determinative response within 60 days after receiving that notice, the court may determine that the Indian Child Welfare Act... does not apply to the proceedings”].)

On March 4, 2009, we granted the Agency’s motion to augment the record and take judicial notice of the Agency’s February 9, 2009, 12-month addendum report and the juvenile court’s February 11, 2009 order.

At a February 11, 2009 hearing, the court returned C.P. to Mother’s custody, terminated Terry and Denise W.’s de facto parent status, and ruled that the ICWA did not apply.

The February 9, 2009 order states, “De Facto Parents status of [Terry and Denise W.] be terminated,” but a note in the margin states, “stayed pending return on Tuesday.” However, both the Agency and Mother represent that the de facto parent status of the fost/adopt parents was in fact terminated. We accept the representation as true.

Discussion

Mother argues the trial court erred by granting de facto parent status to the fost/adopt parents, and that ICWA notice was defective. Both issues are moot.

The de facto parent status issue is moot because the court returned C.P. to Mother’s custody on February 11, 2009, and terminated the fost/adopt parents’ de facto status. (In re Pablo D. (1998) 67 Cal.App.4th 759, 760-761.) Mother concedes the issue is technically moot, but she urges us to decide the issue because it is capable of repetition yet evading review and because it is an issue of continuing public importance. She also argues the alleged error might affect the outcome of later proceedings. (In re Michael D. (1996) 51 Cal.App.4th 1074, 1081, fn. 2.) We disagree. De facto parent status merely allowed the fost/adopt parents to attend hearings with a lawyer and present evidence to the court. (Cal. Rules of Court, rule 5.534(e).) If they took advantage of those opportunities, the court presumably took their evidence and arguments into consideration at the February 2009 12-month hearing and nevertheless returned C.P. to Mother’s custody. In order to remove C.P. again from Mother’s custody, the court would have to make a new finding, based on then-current evidence, of a substantial risk of harm to C.P. (§ 361, subd. (c).) In order to present evidence and argument on that determination, the former fost/adopt parents would have to regain de facto parent status based on the then-current nature of their relationship with C.P. (Cal. Rules of Court, rule 5.502(10).) Mother primarily argues that the three months C.P. had been in the fost/adopt parents’ care as of their July 2008 petition was insufficient to warrant de facto parent status. That specific issue will not arise again.

Regarding ICWA notice, the issue is not properly raised in this appeal from the “August 25, 2008 appointment of de facto parent.” (See Unilogic, Inc. v. Burroughs Corp. (1992) 10 Cal.App.4th 612, 625 [“ ‘The rule favoring appealability in cases of ambiguity cannot apply where there is a clear intention [in the notice of appeal] to appeal from only part of the judgment or one of two separate appealable judgments or orders.’ ”].) Even if the notice of appeal had identified an ICWA issue, the appeal would have been untimely because no ICWA issue was decided at the August 25, 2008, hearing and it was too late to appeal the March 5, 2008, jurisdiction and disposition order, when the court found the ICWA did not apply but proof of ICWA status would be ongoing. (See Joe B. v. Superior Court (2002) 99 Cal.App.4th 23, 26 [“ ‘an unappealed disposition and postdisposition order is final and binding and may not be attacked on appeal from a later appealable order’ ”].) In any event, the issue is moot. In a February 9, 2009, report for the 12-month status review hearing, the Agency reported that it had sent new ICWA notice to the three Cherokee tribes in December 2008. Mother does not contend these notices were inadequate. Two tribes responded that C.P. was not eligible for membership and the third did not respond. Pursuant to section 224.3, the court declared the ICWA did not apply. Mother concedes the issue is moot.

Disposition

The appeal is dismissed as moot.

We concur: Smons, Acting P. J., Needham, J.

The reason for the change in the Agency’s recommendation from termination of services in its six-month report to reunification in the 12-month report is not reflected in the augmented record, which includes the addendum to the 12-month report, but not the original 12-month report.


Summaries of

In re C.P.

California Court of Appeals, First District, Fifth Division
Apr 30, 2009
No. A122677 (Cal. Ct. App. Apr. 30, 2009)
Case details for

In re C.P.

Case Details

Full title:In re C.P., a Person Coming Under the Juvenile Court Law. SAN MATEO COUNTY…

Court:California Court of Appeals, First District, Fifth Division

Date published: Apr 30, 2009

Citations

No. A122677 (Cal. Ct. App. Apr. 30, 2009)