Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. Super. Ct. No. 06CEJ300103-2, Jamileh Schwartzbart, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Carol Koenig, under appointment by the Court of Appeal, for Defendant and Appellant.
Dennis A. Marshall, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Cornell, J., and Dawson, J.
Lee S. appeals from an October 2007 order terminating his parental rights (Welf. & Inst. Code, § 366.26) to his daughter Jasmine. He contends the juvenile court erred, prior to the dispositional phase of the proceedings, when it found the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.; ICWA) did not apply. Shortly after appellant filed his notice of appeal, our court considered an earlier appeal brought by Jasmine’s mother in which the mother also challenged the finding that ICWA was not applicable. In an unpublished opinion issued October 18, 2007, this court granted a conditional reversal and remand of the dispositional orders for ICWA notice error. (In re T.B., et al. (Oct. 18, 2007, F051936); (In re T.B.).) In our In re T.B. remand language, we directed the juvenile court to determine:
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
“if respondent complied with the notice requirement of the ICWA and whether the children are Indian children. The parties may introduce new evidence concerning the adequacy of the notices previously sent. If the court finds the previous notices were adequate, or if after proper notice is given the court determines the children are not Indian children, it shall reinstate the dispositional orders of November 13, 2006. If the court after proper notice is given finds the children are Indian children, it shall conduct all further proceedings in compliance with the ICWA and all federal and state law.” (In re T.B., et al. (Oct. 18, 2007, F051936) Slip. Op. p. 40.)
After giving the parties an opportunity to brief the issue, we conclude our In re T.B. decision has rendered this appeal moot. Accordingly, we will dismiss.
PROCEDURAL AND FACTUAL HISTORY
Due to the narrow scope of this appeal, we limit our factual and procedural summary primarily to information related to the issue of ICWA notice.
In July 2006, appellant was arrested for sexually assaulting his wife. Their friends meanwhile reported the wife abused prescription pain medication. As a result, Jasmine and appellant’s stepchild were detained and dependency proceedings under section 300, subdivision (b) were initiated. In November 2006, the Fresno County Superior Court, sitting as a juvenile court, adjudged the children dependents, removed them from parental custody, and ordered reunification services for both parents. Neither parent, however, reunified with the children and their parental rights were eventually terminated.
At the outset of the underlying proceedings, the children’s mother filed a parental notification of Indian status (Jud. Coun. Form JV-130) declaring she was or may be a member of, or eligible for membership in, the “Cherokee, Souix” tribes. Soon after, respondent Fresno County Department of Children and Family Services (department) filed a notice of involuntary child custody proceedings for an Indian child (Jud. Coun. Form JV-135; “notice”), stating the children’s mother, maternal grandfather and maternal great-grandmother, were possible members of the Apache tribe. It also stated the father of the children’s maternal great-grandmother was a “full blooded Apache.” The department also included proofs of service and postal receipts disclosing when and to whom it sent the notices as well as the responses it received from seven Apache tribes and the Bureau of Indian Affairs. Each of the responses stated the identified family members were not linked to the Apache tribes and not eligible for tribal membership. Relevant to this appeal, the department would again serve two of the Apache tribes it previously mailed notice to, but had not received a response from, namely the Apache Tribe of Oklahoma and the Mescalero Apache Tribe.
The appellate record is silent as to why respondent sent notices to Apache tribes when appellant’s form identified her possible membership in a Cherokee or Sioux tribe.
In October 2006, respondent asked the court to find the ICWA did not apply since the minors were not shown to be members of an Indian tribe, as defined in the ICWA, or the biological children of a member of such a tribe and eligible for membership. At a hearing on the issue, both respondent and the parents’ attorneys submitted the matter on the pleadings. The court granted the motion, finding the provisions of the ICWA were inapplicable to the case.
DISCUSSION
In his opening brief, appellant challenged the notices the department mailed to the Mescalero Apache Tribe and the Apache Tribe of Oklahoma. He claimed each was misaddressed. In the case of the Mescalero Apache Tribe, the address the department used was not identical to the mailing address that tribe designated for service of process in an August 2006 Federal Register listing. In the case of the Apache Tribe of Oklahoma, the department did not include the name of that tribe’s chairperson. The chairperson’s name was included in the same Federal Register listing. The department in its respondent’s brief claimed the addresses it used were adequate as they were listed on a California State Department of Social Services website.
Appellant did not raise any issue regarding the record confusion about whether the mother’s heritage was Apache, Cherokee or Sioux. This was apparently because appellant’s copy of the appellate record did not include a copy of the JV-130 form the mother previously completed. Once appellant became aware of this record omission, he filed a supplemental brief joining in the mother’s challenge that respondent must serve the correct tribes.
However, in the meantime, we granted relief in In re T.B. to resolve whether respondent complied with ICWA’s notice requirement and whether Jasmine and her half-sibling are Indian within the meaning of the federal act. We also entitled the parties to introduce new evidence concerning the adequacy of the notices previously sent. Thus, the question arises what more relief could we grant in this appeal or put another way, is this appeal not moot? (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541.)
In his supplemental letter brief, appellant urges us to address the issue of correct addresses because the mother did not raise the issue in her appeal and his issue is purportedly one of broad public interest and is likely to reoccur. However, our remand language is so broad as to include appellant’s complaint. He is not foreclosed from raising it now in the trial court. Also, we note the record is silent regarding why the department used the addresses it did and whether it was factually reasonable or appropriate to do so. On the remand, which we understand is ongoing, the parties could litigate the address issue assuming the trial court determined it was proper for the department to serve Apache, rather than Cherokee or Sioux tribes.
Last, we recognize that the trial court terminated parental rights only days before we issued our In re T.B. opinion. However, we note no dispute has emerged since our decision and we trust none will regarding the trial court’s authority to resolve the ICWA question and issue whatever corrective orders are necessary, including reversing the termination order.
DISPOSITION
This appeal is dismissed as moot.