Opinion
F084247
06-14-2023
In re E.U. et al., Persons Coming Under the Juvenile Court Law. v. A.H., Defendant and Appellant. MERCED COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent,
Maureen L. Keaney, under appointment by the Court of Appeal, for Defendant and Appellant. Forrest W. Hansen, County Counsel, and Jennifer Tran, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Merced County Nos. 21JP-00173-A, 21JP-00173-B, Donald J. Proietti, Judge.
Maureen L. Keaney, under appointment by the Court of Appeal, for Defendant and Appellant.
Forrest W. Hansen, County Counsel, and Jennifer Tran, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
THE COURT [*]
A.H. (mother) appeals from the juvenile court's rulings issued at a contested jurisdictional and dispositional hearing (Welf. &Inst. Code, §§ 355 &358) on April 6, 2022, regarding her now 17-year-old daughter, E.U., and two-year-old daughter, A.D. (collectively the children). She contends there was insufficient evidence to support true findings her daughters were minors described under section 300 and the order removing A.D. from her custody. She also contends the Merced County Human Services Agency (agency) failed to comply with the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA) and related California law (§ 224.2, subd. (b)) by not inquiring of extended family members whether the children are or may be Indian children.
Statutory references are to the Welfare and Institutions Code unless otherwise indicated.
"[B]ecause ICWA uses the term 'Indian,' we do the same for consistence, even though we recognize that other terms, such as 'Native American' or 'indigenous' are preferred by many." (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1.)
We conclude mother's contentions regarding A.D. are moot and her challenge to the juvenile court's jurisdictional findings as to E.U. are forfeited and therefore dismiss the appeal as to those findings and order. Regarding ICWA, we conclude the agency failed to conduct an adequate inquiry regarding E.U.'s Indian heritage but that it was not prejudicial and affirm the juvenile court's ICWA finding as to her.
PROCEDURAL AND FACTUAL SUMMARY
In light of the narrowness of the sole issue on appeal, i.e., whether the juvenile court erred in finding ICWA did not apply to E.U., a brief summary of the facts and procedure suffices.
On December 10, 2021, the agency took then 16-year-old E.U. and six-month-old A.D. into protective custody and filed an original dependency petition on their behalf, alleging mother failed to protect E.U. from being sexually abused by A.D.'s father, Sergio T., and verbally abused and blamed E.U. for the sexual abuse. (§ 300, subds. (b)(1), (c) &(d).) Mother and Sergio denied having any Indian ancestry. Mother identified Rene M. who is deceased as E.U.'s biological father.
Mother and Sergio appeared with counsel at the detention hearing on December 15, 2021. As part of its ICWA inquiry, the juvenile court asked the parents a series of nine questions to determine whether they or any of their extended family members had any Indian ancestry. The court explained to the parents that extended family members include parents, grandparents and great-grandparents. The questions were whether: (1) the parents or any extended family members were members of an Indian tribe; (2) the parents or any extended family members received health or educational benefits for being considered Indian; (3) the parents or any extended family members ever attended an Indian boarding school; (4) the parents or any extended family members were born on an Indian reservation; (5) the parents held a certificate of degree of Indian blood; (6) the parents were listed on any roll or census of Indian membership; (7) the parents spoke any Indian tribal language; (8) the parents participated in Indian tribal activities, such as tribal elections; and (9) the parents participated in any Indian cultural activities, such as a powwow. The parents responded "no" to each of the juvenile court's questions and based on their answers, the court found that ICWA did not apply.
The definition of "extended family member" is actually more extensive than represented by the juvenile court. Extended family members include adults who are the child's stepparents, grandparents, siblings, brothers- or sisters-in-law, aunts, uncles, nieces, nephews, and first or second cousins. (25 U.S.C. § 1903(2); § 224.1, subd. (c).)
The juvenile court also inquired of mother whether Rene had any Indian heritage. She did not know but added that he was Salvadoran. The court noted that Rene was adjudicated as E.U.'s father in a Madera County family law case and reserved making a finding regarding ICWA as to him pending further investigation by the agency. There is no evidence the court subsequently made an ICWA finding as to Rene.
The juvenile court ordered the children detained and set a jurisdictional hearing, which was contested, combined with the dispositional hearing and conducted on April 6, 2022. Mother appeared with her attorney who advised the juvenile court that mother objected to the agency's recommendation that the court exercise its dependency jurisdiction over the children but elected not to testify or present any evidence. Mother's attorney argued she was unaware E.U. was being sexually abused because E.U. did not tell her and her verbal abuse of E.U. occurred while she was intoxicated and ceased once she attained sobriety in May 2020.
The juvenile court adjudged the children dependents as alleged in the petition, ordered reunification services for mother and Sergio and set a six-month review hearing for July 27, 2022.
Pending mother's appeal, the juvenile court granted mother legal and physical custody of A.D. and terminated dependency proceedings at a family maintenance review hearing on February 16, 2023. On April 13, 2023, the juvenile court terminated mother's reunification services as to E.U. and maintained E.U. in foster care. The court noted that E.U. would be 18 years old on July 29, 2023. Appellant's trial counsel stated mother denied the allegations but no longer contested them and submitted the matter based on the wishes of E.U.
On our own motion, we take judicial notice of the juvenile court's February 16, 2023, and April 13, 2023, minute orders. (Evid. Code, § 452, subd. (d); see In re N.S. (2016) 245 Cal.App.4th 53, 58 [appellate courts reviewing dependency cases routinely consider postjudgment rulings that affect their ability to grant effective relief].)
In an order dated May 4, 2023, this court notified the parties it proposed to take judicial notice of the February 16 and April 13, 2023, minute orders and dismiss the appeal unless an objection was filed within the timeframe granted in the order. The parties did not object.
Despite mother's failure to object, we decline to dismiss the appeal in its entirety because the issue whether the juvenile court erred in finding E.U. was not an Indian child is not moot. We thus review it on the merits and conclude the court erred in finding ICWA did not apply but that the error is not prejudicial and affirm.
We conclude mother's contentions the juvenile court erred in sustaining the jurisdictional allegations as to A.D. and removing A.D. from her custody are moot as is her claim the court erred in finding ICWA did not apply to A.D. We further conclude mother forfeited her claim the juvenile court erred in sustaining the jurisdictional allegations as to E.U. and affirm its ICWA finding as to her for the reasons we now explain.
DISCUSSION
"The question of mootness in a dependency case should be decided on a case-by-case basis ..." (In re Dani R. (2001) 89 Cal.App.4th 402, 404-405.) It is the duty of this court"' "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." '" (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541.) When, pending an appeal from a trial court judgment, an event occurs that renders it impossible for the appellate court, even if it should decide the case in favor of appellant, to grant any effectual relief, the appellate court will not proceed to a formal judgment, but will dismiss the appeal. (Ibid.)
The juvenile court's February 16, 2023, orders returning A.D. to mother's custody and terminating its dependency jurisdiction granted mother the relief she sought in this appeal. Thus, there is no effective relief we might afford her by reviewing the merits of her contention regarding its jurisdictional findings and removal order as to A.D.
As to mother's contention there was insufficient evidence to support the juvenile court's jurisdictional findings as to E.U., we conclude she forfeited the issue when she consented to the agency's recommendation to maintain E.U. in her grandmother's custody without introducing any evidence or offering any argument. (In re Richard K. (1994) 25 Cal.App.4th 580, 590.)
Regarding ICWA, we concur the agency and the juvenile court failed to conduct an adequate initial inquiry into the children's Indian ancestry. When the agency takes a child into temporary custody, it "has a duty to inquire whether that child is an Indian child. Inquiry includes, but is not limited to, asking the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian child and where the child, the parents, or Indian custodian is domiciled." (§ 224.2, subd. (b).) Extended family members include adults who are the child's stepparents, grandparents, siblings, brothers- or sisters-in-law, aunts, uncles, nieces, nephews, and first or second cousins. (25 U.S.C. § 1903(2); § 224.1, subd. (c).) The juvenile court in turn is required by federal regulations implementing ICWA to ask each participant at the commencement of a child custody proceeding whether the participant knows or has reason to know that the child is an Indian child. (25 C.F.R. § 23.107(a) (2022).) State law requires the court to inquire at the first appearance of each party whether the participant knows or has reason to know that the child is an Indian child. (§ 224.2, subd. (c).)
Here, there is no evidence anyone other than the parents was asked about the children's Indian ancestry, including the maternal grandmother with whom the agency had contact. Either the agency did not identify and ask extended family members about the children's Indian ancestry or it did but did not document it. In any event, the agency's initial ICWA inquiry as reflected in the record was inadequate. Further the juvenile court did not cure the agency's inadequate inquiry, as respondent argues, by including "any extended family members" in its questions directed to mother. Section 224.2, subdivision (b) specifically identifies whom the agency is required to ask. It does not by its language allow the parent to answer on behalf of the extended family members whether the child is or could be an Indian child. Rather, it requires the agency to ask the extended family members directly. Consequently, the court's inquiry does not satisfy the initial inquiry mandate and its finding ICWA did not apply is not supported by substantial evidence. Thus, the court's ICWA finding is error.
Even if the statute allowed the parent to answer on behalf of the extended family members, the juvenile court's inquiry would be defective because it inaccurately defined who falls within the definition of "extended family member."
Notwithstanding the juvenile court's erroneous ICWA finding, the issue on appeal was rendered moot as to A.D. when the juvenile court placed her in mother's custody. (See In re A.T. (2021) 63 Cal.App.5th 267, 274 [ICWA does not apply where the child is placed with a parent]; In re Austin J. (2020) 47 Cal.App.5th 870, 881, fn. 5 [when a juvenile court terminates foster care placement and returns the child to a parent's custody, the "question whether to reverse the prior order based on noncompliance with ICWA is ... moot"].)
The juvenile court's erroneous ICWA finding regarding E.U., however, is not moot. She remains in foster care under the court's jurisdiction and could potentially meet the definition of an "Indian child." Federal and state law define an "Indian child" as "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." (25 U.S.C. § 1903(4); accord, § 224.1, subd. (a).) The fact that E.U. will soon be an adult when she turns 18 in July 2023 does not bar her from attaining Indian child status because state law expands the definition of "Indian child" under section 224.1, subdivision (b) to include "an unmarried person who is 18 years of age or over, but under 21 years of age" and remains under the jurisdiction of the juvenile court.
The sole question before us on this appeal therefore is whether the juvenile court's finding ICWA did not apply to E.U. is prejudicial. Ordinarily, when the initial inquiry was confined to asking the parents regarding the child's Indian ancestry as occurred here (mother in this case as the only surviving parent), we have concluded the error is necessarily prejudicial, conditionally reversed the juvenile court's finding that ICWA does not apply and remanded the matter for ICWA compliance. As we explained, "The nature of this defect [leaves] the juvenile court with no evidence upon which to exercise discretion to find the inquiry proper, adequate, and duly diligent.... [T]his error is necessarily prejudicial because, limited only to the parents, the inquiry fell well short of that required to gather the information needed to meaningfully safeguard the rights of the tribes, as intended under ICWA and California law, and remand for correction is required." (In re K.H. (2022) 84 Cal.App.5th 566, 620.) Under the facts of this case, however, we conclude the ICWA error is not prejudicial as we now explain.
The purpose of ICWA was to address abusive child welfare practices that resulted in the separation of Indian children from their families and tribes through adoption or foster care placement. (In re Isaiah W. (2016) 1 Cal.5th 1, 7.) The record reflects that E.U. is not an Indian child being separated from her tribe through foster care placement, as she is presently neither a member of an Indian tribe nor the biological child of a member of an Indian tribe, and there is no evidence she is eligible for tribal membership. She has no affiliation with any Indian tribe, has not been raised in the Indian culture and is not receiving any benefits by virtue of her Indian ancestry. That is the situation in most cases in which this issue is raised, but critical to the disposition in this case, E.U. will be an adult within just over a month of the filing of this opinion. Even if she attained "Indian child" status between the ages of 18 and 21, the statute acknowledges her right to make her own decisions: "All Indian child custody proceedings involving persons 18 years of age and older shall be conducted in a manner that respects the person's status as a legal adult." (§ 224.1, subd. (b).)
For this reason, reversing this case and directing the agency to conduct a further ICWA inquiry into E.U.'s Indian ancestry would not further the interest of any tribe and would be a futile and unnecessary endeavor. Even if mother, the extended family members or even E.U. herself identified tribal ancestry, it is unlikely the agency would be able to complete its ICWA notification and receive responses from the tribe or tribes before E.U. becomes an adult in July 2023. Further, even if a tribe were to determine that E.U. is an Indian child, it cannot compel her to do anything, including relocate to live with an Indian family. She has chosen to live with her maternal grandmother and she will shortly have the right as an adult to remain there. Under these specific circumstances, affirming the juvenile court's ICWA finding does not undermine the spirit and intent of ICWA, interfere with tribal rights or thwart the statutory purpose of protecting tribal interests. Finally, nothing precludes E.U., once she reaches adulthood next month, from pursuing her tribal ancestry and possible tribal membership on her own.
DISPOSITION
Mother's appeal from the juvenile court's jurisdictional findings, removal order and ICWA finding as to A.D. is dismissed as moot. Mother's appeal as to the juvenile court's jurisdictional findings as to E.U. is dismissed as forfeited. The juvenile court's finding ICWA does not apply to E.U. is affirmed.
[*] Before Franson, Acting P. J., Pena, J. and Meehan, J.