Opinion
A156532
01-09-2020
In re J.W. et al., Persons Coming Under the Juvenile Court Law. NAPA COUNTY HEALTH AND HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. N.W., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. Nos. 17JD000100, 17JD000101)
Father appeals from an order denying his petition under Welfare and Institutions Code section 388 to modify an order of the juvenile court terminating his reunification services. The Napa County Health and Human Services Department (the department) has filed a motion to dismiss on the ground that the subsequent termination of father's parental rights has rendered the present appeal moot. We agree and shall dismiss the appeal.
All statutory references are to the Welfare and Institutions Code.
Background
On October 26, 2017, father's two daughters, then seven and five years of age, were detained. On December 13, 2017, the court found that the children came within section 300, subdivision (b)(1), and that there would be a substantial risk of harm to the children's physical or emotional well-being if they were returned to their parents' home. The court ordered that the department provide reunification services to the parents and continued the matter for a six-month review hearing.
On April 26, 2018, at the six-month review hearing, the court found return of the children to parents' custody would be detrimental, renewed reunification services, and continued the matter for a twelve-month review hearing. The court also found that the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) did not apply. No appeal was taken from the order issued following the six-month review hearing.
On November 5, 2018, at the 12-month review hearing, the court terminated reunification services and ordered the matter set for a section 366.26 hearing. Parents were advised of their right to file a writ challenging the setting of the section 366.26 hearing, but no writ petition was filed.
On February 6, 2019, the court denied father's petition to modify the court's prior order terminating his reunification services. Father timely filed the present appeal from the denial of his petition. He challenges both the court's ruling on his petition as well as the court's finding at the six-month review hearing that ICWA did not apply.
On March 12, 2019, while the present appeal was pending, the court conducted the section 366.26 hearing and terminated parental rights. No appeal was taken from that order.
On December 4, 2019, after briefing on the present appeal was complete, the department filed a motion to dismiss the appeal on the ground that the final order terminating parental rights had rendered the appeal moot. In response, father concedes that his arguments regarding the denial of his petition to modify are now moot, but contends the court should consider his arguments regarding the court's finding that ICWA does not apply.
Coincidentally, at essentially the same time, this court requested supplemental briefing on the same issue.
Father argues that this court should reach his arguments regarding ICWA compliance because "if this court does not address the serious errors in the department's investigatory and noticing requirements set forth in appellant's opening brief, the end result is that the minors may indeed be Indian children, the adoption of whom would be in violation of a whole host of ICWA and California statutory mandates, and the adoption could be invalidated." Father's challenge to ICWA compliance is both untimely and moot, and does not justify discretionary consideration.
Father relies on In re Isaiah W. (2016) 1 Cal.5th 1, 6 (Isaiah), in which the California Supreme Court held that a parent who does not timely appeal a juvenile court order that includes a finding of ICWA inapplicability may still challenge that finding on appeal from a later order terminating parental rights. The court explained that because "the court had an affirmative and continuing duty to determine ICWA's applicability at the . . . hearing to terminate [minor's] parental rights," the termination order "necessarily subsumed a present determination of ICWA's inapplicability" that was subject to review on appeal. (Id. at p. 15.) Noting that statutory provisions "contemplate[] that ICWA's notice requirements may be enforced after the issuance of an order terminating parental rights," the court observed that "[a]llowing ICWA notice error to be raised for the first time in a direct appeal from an order terminating parental rights seems unlikely to cause greater delay than allowing the parent to litigate the same issue in a separate and collateral proceeding." (Id. at p. 13.)
In In re L.D. (2019) 32 Cal.App.5th 579, the court distinguished Isaiah in holding that a mother's arguments regarding ICWA compliance were untimely when asserted on appeal from an order that did not require a determination of ICWA applicability. In that case, the mother challenged the court's ICWA finding, made at the dispositional hearing, on appeal from a subsequent order requiring mother to surrender her handgun. (32 Cal.App.5th at pp. 581-582.) The court explained, "Although we are mindful of the juvenile court's continuing duty to comply with ICWA [citations], ICWA notice is required 'for hearings that may culminate in an order for foster care placement, termination of parental rights, preadoptive placement, or adoptive placement' [citation]. The gun surrender hearing resulted in no such order. As the reasoning of Isaiah does not extend to the facts presented here, the appeal is untimely." (32 Cal.App.5th at p. 583.)
As in In re L.D., supra, 32 Cal.App.5th 579, the order denying father's petition for modification did not require a determination of ICWA's inapplicability because his petition did not seek "the foster care placement of, or termination of parental rights to, an Indian child." (25 U.S.C. § 1912(a); see also Welf. & Inst. Code, § 224.3, subd. (a) [requiring that notice "shall be provided for hearings that may culminate in an order for foster care placement, termination of parental rights, preadoptive placement, or adoptive placement"]; Cal. Rules of Court, rule 5.480 ["This chapter addressing the Indian Child Welfare Act . . . applies to most proceedings involving Indian children that may result in an involuntary foster care placement; guardianship or conservatorship placement; custody placement under Family Code section 3041; declaration freeing a child from the custody and control of one or both parents; termination of parental rights; or adoptive placement."].) Accordingly, father's challenge to the ICWA finding is untimely.
Father's suggestion that this court "should address the numerous ICWA violations set forth in appellant's opening brief to stave off a subsequent attack that could further complicate permanency for the minors" is not persuasive. As noted above, father failed to challenge ICWA compliance at any other point in the proceedings, including the hearing on the termination of parental rights. Father's suggestion that additional investigation might have uncovered further relevant information is speculative and insufficient to overcome the substantial evidence of ICWA compliance. (In re Charlotte V. (2016) 6 Cal.App.5th 51, 58.) For this reason, the circumstances are vastly different from those in Isaiah. If father or a tribe believes grounds exist to invalidate the proceedings, they may file an appropriate petition under the act. (25 U.S.C. § 1914.)
Disposition
The appeal is dismissed.
/s/_________
POLLAK, P. J. WE CONCUR: /s/_________
TUCHER, J. /s/_________
BROWN, J.