Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County Super.Ct.Nos. J205351, J205352. A. Rex Victor, Judge. Dismissed.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant C.V.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant J.V.
Ruth E. Stringer, Acting County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
Michael D. Randall, under appointment by the Court of Appeal, for Minors.
OPINION
Richli, J.
The juvenile court terminated the parental rights of C.V. and J.V. (parents) to Jeanna V. and Michael V., their twin children born in 2005. The parents appealed, contending (among other things) that notice had not been given as required by the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). We agreed; we ordered a limited remand for the purpose of complying with ICWA notice requirements.
On remand, the Department of Children’s Services (the Department) sent out new notices; the juvenile court then found that the ICWA notice requirements had been satisfied. Accordingly, it reinstated the order terminating parental rights.
The parents have appealed again, contending again that the notices given did not comply with ICWA. This time, while the appeal was pending, the Department sent out one more notice, which, it contends, remedied the only deficiency that the parents have identified in this appeal. The Department has filed a motion asking us to accept evidence of the new notice.
We will grant the Department’s motion to take evidence on appeal. Moreover, because that evidence demonstrates that notice has now been given as required by ICWA, we will hold that this appeal is moot. Accordingly, we will dismiss the appeal.
I
FACTUAL AND PROCEDURAL BACKGROUND
By order of this court, the record in the previous writ petition (case No. E039912) was incorporated into the previous appeal (case No. E041137). Likewise, by order of this court, the record in the previous appeal, including the record in the writ petition, was incorporated into the present appeal.
In December 2005, C.V. (the mother) gave birth to twins, Jeanna V. and Michael V. J.V. (the father) is the father of the twins. Because the mother tested positive for methamphetamine and admitted failing to obtain prenatal care, the twins were detained, and the Department filed dependency petitions concerning them. In February 2006, the juvenile court sustained the allegations of the petitions.
Meanwhile, the mother and her family supplied information to the effect that the twins’ maternal great-grandmother, named Cassie M., was a member of the Morongo Band of Cahuilla Mission Indians (Morongo tribe). The Department sent an ICWA notice to the Morongo tribe; the notice, however, gave the name of the maternal great-grandmother as “M[.] Cassey,” rather than Cassie M. Moreover, it incorrectly listed the name of the maternal grandmother as unknown.
In August 2006, the juvenile court terminated parental rights. The parents appealed. In March 2007, we held that the Department had failed to give adequate ICWA notice. We reversed and remanded for the limited purpose of complying with the notice provisions of ICWA.
B. The Present Appeal.
On remand, the mother belatedly revealed that Cassie M. was not actually a Morongo Indian at all. Rather, Cassie M.’s brother had married a member of the Morongo tribe. Thus, the mother’s cousins were Morongo Indians, but the mother herself had no direct Morongo ancestry.
About a week later, the mother called the social worker and told her that the maternal great-grandfather, Peter R., might have been Indian. She identified his tribe as “Prima” or “Primo.” Minutes later, she called back; she said she had checked with relatives, and his tribe was either “Pima Apache” or just plain “Pima.” She called back again minutes later and said it was “definitely Pima.” A few minutes after that, she called back and said it was “Pimo.”
The Department determined to notify all Apache, Pomo, Pima, and Morongo tribes. There are eight Apache tribes, 22 Pomo tribes, two Pima tribes, and one Morongo tribe. (, as of May 15, 2008.) On June 26, 2007, the Department sent notices to all of these tribes, bar one — it failed to send a notice to the Federated Indians of Graton Rancheria (Graton Rancheria), a Pomo tribe. It also sent notice to the Bureau of Indian Affairs (BIA). None of the tribes responded that the twins were members or eligible for membership.
On October 15, 2007, the juvenile court held a hearing concerning ICWA compliance. There was this exchange:
“THE COURT: . . . [¶] . . . This is . . . the time and place for the respective parents to address any inadequacies or any insufficiencies as to the perceived ICWA notice.
“Counsel wish to be heard?
“[MOTHER’S COUNSEL]: I didn’t find any.
“[MINORS’ COUNSEL]: Submitting for minor.
“[FATHER’S COUNSEL]: Submit.”
The juvenile court then found that the Department had complied with the notice requirements of ICWA and that ICWA did not apply. It therefore reinstated the order terminating parental rights.
C. The Department’s Motion to Take Additional Evidence on Appeal.
In their opening briefs in this appeal, the parents asserted that the juvenile court erred by finding that the Department had complied with the notice requirements of ICWA because there was insufficient evidence that notice had been sent to the Graton Rancheria.
The Department then filed a motion to take additional evidence on appeal. It asked us to accept the following evidence:
1. An ICWA notice, with proof of service on the Graton Rancheria by registered or certified mail, return receipt requested.
2. A response from the Graton Rancheria, indicating that the twins were neither members nor eligible to be members of the tribe.
The parents opposed the motion. We reserved ruling on the motion so that it could be considered with the appeal.
II
DISCUSSION
“In general, . . . ICWA applies to any state court proceeding involving the foster care or adoptive placement of, or the termination of parental rights to, an Indian child. [Citations.] ‘Indian child’ is defined as a child who is either (1) ‘a member of an Indian tribe’ or (2) ‘eligible for membership in an Indian tribe and . . . the biological child of a member of an Indian tribe . . . .’ [Citation.]” (In re S.B. (2005) 130 Cal.App.4th 1148, 1156, quoting 25 U.S.C. § 1903(4); see also Welf. & Inst. Code, § 224.1, subds. (a), (c); former Cal. Rules of Court, rule 5.664, now rule 5.480.)
Under the notice provisions of ICWA, “where the court knows or has reason to know that an Indian child is involved,” the social services agency must give notice to “the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of [its] right of intervention.” (25 U.S.C. 1912(a); see also Welf. & Inst. Code, § 224.2, subd. (a); former Cal. Rules of Court, rule 5.664(f), now rule 5.481(b)(1).) “If the identity or location of . . . the tribe cannot be determined, such notice shall be given to the [BIA] . . ., wh[ich] shall have fifteen days after receipt to provide the requisite notice to . . . the tribe.” (25 U.S.C. 1912(a).)
To permit the trial court and any reviewing court to determine whether the ICWA notice provisions have been satisfied, the social services agency must file a copy of the notice, along with proof of mailing, any return receipts, and any responses. (Welf. & Inst. Code, § 224.2, subd. (c); former Cal. Rules of Court, rule 5.664(f), now rule 5.482(b); see also In re H.A. (2002) 103 Cal.App.4th 1206, 1215.)
The parents assert one and only one failure to comply with ICWA notice provisions — the failure to send notice to the Graton Rancheria. We will assume, without deciding, that the parents did not waive this contention by failing to object below. (See In re Alice M. (2008) 161 Cal.App.4th 1189 [74 Cal.Rptr.3d 863,866-868]; but see In re Amber F. (2007) 150 Cal.App.4th 1152, 1156 ; In re X.V. (2005) 132 Cal.App.4th 794, 803-805.) The Department responds that, based on its proffered additional evidence, that failure has been cured, and this appeal is moot. The parents, however, object to the additional evidence, arguing that considering it would violate In re Zeth S. (2003) 31 Cal.4th 396 (Zeth S.) as well as due process.
In Zeth S., the Supreme Court stated: “In a juvenile dependency appeal from an order terminating parental rights, may the Court of Appeal receive and consider postjudgment evidence that was never before the juvenile court, and rely on such evidence outside the record on appeal to reverse the judgment? The general answer is no, although in the rare and compelling case an exception may be warranted.” (Zeth S., supra, 31 Cal.4th at pp. 399-400.) It gave two reasons for this holding.
First, a contrary approach would “violate . . . the generally applicable rules of appellate procedure . . . .” (Zeth S., supra, 31 Cal.4th at p. 413.) “‘Absent exceptional circumstances,’” an appellate court should not make findings of fact. (Id. at p. 405, italics omitted, quoting Tyrone v. Kelley (1973) 9 Cal.3d 1, 13.) Moreover, “‘an appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration.’ [Citation.]” (Zeth S., at p. 405, quoting In re James V. (1979) 90 Cal.App.3d 300, 304.) Accordingly, postjudgment evidence is irrelevant to the merits of the appeal.
Second, a contrary approach would also “violate . . . the express provisions of section 366.26 which strictly circumscribe the timing and scope of review of termination orders, for the very purpose of expediting the proceedings and promoting the finality of the juvenile court’s orders and judgment.” (Zeth S., supra, 31 Cal.4th at p. 413, fn. omitted.) “Given the state’s strong interest in the expeditiousness and finality of juvenile dependency proceedings [citation], the statutory scheme generally does not permit the critical findings and orders made prior to the final setting of the 366.26 hearing to be reopened and relitigated in an appeal from the order terminating parental rights. . . . And the Legislature has further expressly provided that the final order terminating parental rights and freeing the child for adoption itself cannot be collaterally attacked in the trial court. [Citation.]” (Id. at pp. 412-413.)
Later, however, in In re Josiah Z. (2005) 36 Cal.4th 664 (Josiah Z.), the Supreme Court held that an appellate court could consider postjudgment evidence in connection with minor’s counsel’s motion to dismiss a dependency appeal as not in the child’s best interests. (Id. at p. 676.) The court found Zeth S. distinguishable “in three respects. First, the generally applicable appellate rules authorize such a motion, and appellate courts routinely consider limited postjudgment evidence in the context of such motions. [Citations.] Second, the limited issue involved in a motion to dismiss . . . is distinct from the broader issues resolved by the trial court, and consideration of circumscribed evidence in this context does not give rise to the vice we condemned in Zeth S. — an appellate court’s use of new evidence outside the record to second-guess the trial court’s resolution of issues properly committed to it by the statutory scheme. [Citation.] Third, the beneficial consequence of motions to dismiss, where granted, will be to ‘expedit[e] the proceedings and promot[e] the finality of the juvenile courts orders and judgment’ [citation] — precisely the policy advanced by our ruling in Zeth S.” (Josiah Z., at p. 676.)
Here, as in Josiah Z., considering the proffered postjudgment evidence would not violate generally applicable appellate rules. The Department is simply asking us to rely on the evidence in determining that the appeal is moot. Doing so does not violate generally applicable rules of appellate procedure. “[C]ourts have not hesitated to consider postjudgment events . . . when subsequent events have caused issues to become moot [citation].” (Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 813.) Indeed, mootness, almost by definition, is based on postjudgment developments.
Moreover, also as in Josiah Z., the “limited issue” of mootness is distinct from the broader issues statutorily committed to the trial court. Finally, the benefit of considering the postjudgment evidence is that, if the appeal is in fact moot, we avoid a lengthy and ultimately pointless remand. This serves “the state’s strong interest in the expeditiousness and finality of juvenile dependency proceedings.” (Zeth S., supra, 31 Cal.4th at p. 412.)
Accordingly, we concur with those appellate courts that have accepted postjudgment evidence in dependency cases to show mootness. (In re B.D. (2008) 159 Cal.App.4th 1218, 1240; In re Sabrina H. (2007) 149 Cal.App.4th 1403, 1417; In re Salvador M. (2005) 133 Cal.App.4th 1415, 1420-1422; In re Marina S. (2005) 132 Cal.App.4th 158, 166; In re Karen G. (2004) 121 Cal.App.4th 1384, 1389-1390; see also Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 865-867 [accepting postjudgment evidence to demonstrate ICWA compliance].)
The parents contend that our consideration of the proffered evidence would violate due process because they have not had an opportunity to “test [its] veracity . . . .” They do not actually claim, however, that the evidence is false or even misleading. They have not submitted any contrary evidence to this court. They have not even made an offer of proof. It does not necessarily violate due process to require an adequate offer of proof before allowing a contested hearing. (In re Earl L. (2004) 121 Cal.App.4th 1050, 1052-1053; In re Tamika T. (2002) 97 Cal.App.4th 1114, 1122; In re Jeanette V. (1998) 68 Cal.App.4th 811, 817.) Admittedly, the Department has the burden of proving ICWA compliance. (Cf. In re Thomas R. (2006) 145 Cal.App.4th 726, 732.) The Department, however, had laid its evidence out on the record; the parents do not suggest any way in which they could attack its credibility. Typically, ICWA issues are resolved based on strictly documentary evidence. This court has seen a lot of ICWA cases but does not recall any in which a party actually sought to cross-examine an employee of the social services agency regarding the adequacy of the notice. There is no reason to think cross-examination would be effective here.
“An appeal is moot when as a result of changed circumstances the trial court on remand would be unable to grant the relief sought by the appellant. [Citations.]” (Nicolopulos v. City of Lawndale (2001) 91 Cal.App.4th 1221, 1226-1227.) Here, it is abundantly clear that, if we were to remand, the juvenile court would find that the Department has complied with the notice provisions of ICWA and that the twins are not Indian children. We will therefore dismiss the appeal.
III
DISPOSITION
The appeal is dismissed as moot.
We concur: Ramirez, P. J., King, J.