Opinion
B313956
08-12-2022
In re S.P., a Person Coming Under Juvenile Court Law. v. J.O., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Jacklyn K. Louie, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. 20CCJP05595 Nichelle L. Blackwell, Presiding Commissioner. Dismissed.
Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Jacklyn K. Louie, Principal Deputy County Counsel, for Plaintiff and Respondent.
WILLHITE, J.
Appellant J.O. (Father) appeals from juvenile court visitation orders made on June 25, 2021 and June 29, 2021, in which the court modified Father's unmonitored visitation with his daughter, Sabrina. P. (born May 2008), to monitored visits, and thereafter refused to return the status to unmonitored. On appeal, Father contends the juvenile court abused its discretion in restricting his visits with Sabrina. Father also raises issues of compliance with the initial inquiry required under the Indian Child Welfare Act (ICWA), alleging that the Department should have contacted paternal relatives to inquire about Native American ancestry on Father's side of the family.
While this appeal was pending, the juvenile court ordered Sabrina placed in Father's custody under a home-of-Father order. In light of this change in circumstances, both parties agree that the issues on appeal have been rendered moot. We agree, and dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Sabrina P. (born May 2008) came to the attention of the juvenile court on October 20, 2020, after the Department filed a Welfare and Institutions Code section 300 petition on behalf of the child. At the October 23, 2020 detention hearing, the court ordered Sabrina detained from mother and placed with the maternal grandmother. The court ordered the Department to conduct a due diligence on Sabrina P's father. At the hearing, mother confirmed her lack of Native American ancestry-consistent with her responses on the Parental Notification of Indian Status form indicating she had no Native American ancestry. Mother further told the court that Father had no native American Indian heritage in his ancestry. The juvenile court found there was no reason to know that Sabrina was an Indian child as defined by ICWA.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
At the time of the Sabrina's detention from her mother, little was known about Father other than his name. The Department made contact with Father in November 2020. Father reported last seeing Sabrina when she was five-months old and stated he now wished to be involved in Sabrina's life.
ICWA requires notice of dependency proceedings be sent to relevant tribes whenever the court knows or has reason to know that an Indian child is involved. (In re D.N. (2013) 218 Cal.App.4th 1246, 1251; see also 25 U.S.C. § 1912(a).)
On December 3, 2020 mother submitted a waiver of rights, pleading no contest to the petition. The juvenile court sustained jurisdiction under section 300, subdivisions (a) and (b), and made true findings as to physical abuse by mother and mother's emotional problems for which she failed to seek mental health treatment. The juvenile court declared Sabrina a dependent of the court, and ordered her removed from mother and placed with the maternal grandmother. The court ordered a case plan for mother that included, inter alia, mental health counseling and monitored visits with Sabrina.
At the December 3, 2020 hearing, Father made his first appearance and was appointed counsel. The court noted that as an alleged father, Father was not entitled to placement of the child. Father was provided with unmonitored visitation with Sabrina for a minimum of nine hours a week with the Department having discretion to liberalize the visits. At the hearing, Father confirmed that he did not have any Native American Indian ancestry-consistent with the Parental Notification of Indian Status wherein he checked off the box, "[n]one of the above apply," regarding his Indian status. The court found there was no reason to know Sabrina was an Indian child as defined by ICWA.
The court ordered family reunification services for the parents, including conjoint counseling for Father and Sabrina, when appropriate.
In addition, the December 3, 2020, jurisdiction/disposition report reflects that the maternal grandmother and great-aunt were interviewed and denied mother had any Native American ancestry.
On June 2, 2021, Father filed a section 388 (change court order) petition requesting the court modify its previous paternity finding and to now deem him Sabrina's presumed father. Father stated he had developed a relationship with Sabrina during weekend visits. The juvenile court ordered a hearing on the petition to take place on June 29, 2021. The court also set the six-month review hearing under section 366.21, subdivision (e) for June 29, 2021.
On June 15, 2021, the Department filed a request to change order, recommending that the court change Father's visitation to monitored visits. The change in visitation was based on Father permitting mother to see the child and on an incident on June 14, 2021, at Knott's Berry Farm, wherein mother and father had an altercation in the presence of the minor. At a "walk-on" hearing on June 25, 2021, the court granted the Department's request to change Father's visits with Sabrina to monitored visitation and ordered visits nine hours a week to take place during the day at a neutral location. The court prohibited the maternal grandmother from monitoring either parent's visits. The court then continued the matter to June 29, 2021 for Father's section 388 petition, as well as the section 366.21, subdivision (e) six-month review hearing.
On June 29, 2021, the juvenile court heard testimony by Father and mother, followed by counsel argument. Father's counsel asked that Father be found the presumed father and to revert back to unmonitored visits with Sabrina. The Department requested that Father's visits remain monitored.
Although the minute order states that “Sabrina G[.]” testified at the hearing, it was, in fact, mother who testified at the June 29 hearing.
The juvenile court granted Father's section 388 request for presumed father status. The court ruled that Father's visits would remained monitored and were to be for six hours a week in a neutral setting. Family reunification services were continued for the parents, and the child's current placement with the maternal grandmother remained appropriate.
On July 7, 2021, Father timely filed a notice of appeal from the orders of the juvenile court issued on June 25 and June 29, 2021.
Post-Judgment Events
On April 21, 2022, at the section 366.22 permanency review hearing,the juvenile court terminated the previous suitable placement order and ordered Sabrina placed in the home of Father with the provision of family maintenance services. The matter was put over to May 18, 2022 for transfer of the case to Orange County.
We previously granted the Department's motion for judicial notice of the juvenile court's April 21, 2022 minute order. (Evid. Code, § 452, subds. (c) & (d).)
The minute order states that reunification services were previously terminated for mother due to lack of compliance. As such, no services were ordered for mother.
DISCUSSION
In his opening brief, Father challenges the juvenile court's June 2021 orders reverting his visits to monitored and alleges the court and Department failed to conduct an adequate inquiry under ICWA. However, as indicated at the outset of our opinion, both parties now agree that this appeal is moot in light of the juvenile court's April 2022 order placing Sabrina in Father's custody. We agree with the parties and shall dismiss the appeal.
The Department asserted the issues are moot in its responding brief, filed on April 28, 2022, and by a separate motion to dismiss the appeal filed on the same day. On May 18, 2022 appellate counsel for Father notified this court that she would not be filing a reply brief, stating that Father's visitation “has since been changed” and that “[F]ather agrees with Respondent that the relief he requested from this Court has already been granted by the juvenile court.” Counsel added that “Father also agrees with Respondent that as the minor is placed with a parent, this is no longer an ICWA case.”
A. Relevant Legal Principles
"It is well settled that an appellate court will decide only actual controversies. Consistent therewith, it has been said that an action which originally was based upon a justiciable controversy cannot be maintained on appeal if the questions raised therein have become moot by subsequent acts or events." (Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 10.) As explained by Witkin: "An action that involves only abstract or academic questions of law cannot be maintained. [Citation.] . . . A reversal would be without practical effect, and the appeal will therefore be dismissed." (9 Witkin, Cal. Procedure (6th ed. 2021) Appeal, § 777, p. 797.) In a dependency case, the question of mootness is decided on a case-by-case basis. (In re Dani R. (2001) 89 Cal.App.4th 402, 404.)
B. Application
Here, there is no longer any controversy and hence no relief this court could grant. The post-judgment events demonstrate the child has been returned to Father's custody, which surpasses the relief of a new hearing on the visitation order as requested by Father on appeal. (Cf. In re Dani R., supra, 89 Cal.App.4th at p. 406 [appeal from order denying mother reunification services rendered moot by postappeal order granting her such services].)
The child's placement with Father also renders the ICWA inquiry moot-or no longer relevant. Under ICWA, "[i]n any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe." (25 U.S.C. § 1912(a), italics added; see also 25 C.F.R. § 23.11 (2005) [notice requirements when foster placement or termination of parental rights sought].)
This provision has been interpreted to mean that ICWA noticing requirements do not apply where a child is removed from one parent and placed with another. (Cf. In re K.L. (2018) 27 Cal.App.5th 332, 336-338 [ICWA did not apply where minor was removed from mother and placed with "presumed" father; by its terms "foster care" does not include placement with legal parent]; In re M.R. (2017) 7 Cal.App.5th 886, 904 ["ICWA and its attendant notice requirements do not apply to a proceeding in which a dependent child is removed from one parent and placed with another"]; In re Alexis H. (2005) 132 Cal.App.4th 11, 14 [noting that "[b]y its own terms, the act requires notice only when child welfare authorities seek permanent foster care or termination of parental rights; it does not require notice anytime a child of possible or actual Native American descent is involved in a dependency proceeding"]; In re J.B. (2009) 178 Cal.App.4th 751, 758 [same].)
In In re Jennifer A. (2002) 103 Cal.App.4th 692 (Jennifer A.), the appellate court rejected the Department's contention that any failure to give ICWA notice to the parents' tribes was harmless because the child had not been placed in foster care and was instead placed with the father. (In re Jennifer A., supra, 103 Cal.App.4th at p. 699.) However, Jennifer A. has since been largely confined to its facts. (In re Alexis H., supra, 132 Cal.App.4th at p. 15 [noting “a careful reading [of Jennifer A.] reveals a decision confined to its facts”]; In re A.T. (2021) 63 Cal.App.5th 267, 275 [stating that In re Jennifer A. has been “expressly confined to its facts”].) Those facts are as follows: Child welfare authorities took Jennifer A. from her mother and placed her in an emergency shelter. The girl's parents, who were not married, told the authorities of their Native American heritage but the authorities failed to give proper notice of the proceedings to the parents' tribes. Child welfare authorities thereafter recommended foster care for the child, but the court rejected the recommendation and placed her with her father. (In re Jennifer A., supra, 103 Cal.App.4th at pp. 697-698.) On appeal, the court rejected the Department's contention that any failure to give ICWA notice to the parents' tribes was harmless, stating that the department's recommendation of foster care had put such care “squarely before the juvenile court.” (Id. at p. 700.) Given that mootness is determined on a case-by-case basis-and that this case, unlike Jennifer A., includes no assertions of Native American heritage-and resulted in a placement with Father after he had obtained presumed parent legal status and forged a relationship with Sabrina-we remain confident that dismissal is the appropriate course of action. (Cf. In re A.T., supra, 63 Cal.App.5th at p. 275 & fn. 8 [noting that appellant cited no cases holding ICWA applicable “due to a mere[] theoretical possibility” that a parental placement could fall through-and further noting that initial detention with maternal relative prior to placement with father did not alter court's determination that ICWA did not apply]; cf. In re Alexis H., supra, 132 Cal.App.4th at p. 16 [noting that court's order for reunification services evinced intent to preserve family rather than place child in foster care or terminate parental rights].)
If Sabrina were to be removed from Father's custody and detained in the care of a non-parent, initial inquiry under the ICWA would be triggered anew. (In re A.T., supra, 63 Cal.App.5th at pp. 274-275; see also § 224.3, subds. (a), (b) [courts and child welfare agencies have an affirmative and continuing duty of inquiry and notice]; In re Isaiah W. (2016) 1 Cal.5th 1, 11 [juvenile court has a continuing duty to inquire into a child's Indian status at "'all dependency proceedings'" involving that child].)
At this point, however, an issuance of a limited remand for compliance with ICWA's inquiry requirements (assuming there was non-compliance) would be an empty formality and waste of judicial resources. (In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1054 [an appellate court will not review questions which are "only of academic importance, nor will it determine abstract questions of law at the request of a party who shows no substantial rights can be affected by the decision either way"].) We expect that if the Department ever contemplates any additional action that might lead to foster care or adoption, it will be diligent in making sure there has been full compliance with the requirements of ICWA.
The questions in this appeal, however, are nonjusticiable and therefore moot. (Cf. In re M.R., supra, 7 Cal.App.5th at p. 904, fn. 9.)
DISPOSITION
The appeal is dismissed as moot.
We concur: MANELLA, P. J., CURREY, J.