Opinion
G062690
11-20-2023
In re K.L., a Person Coming Under the Juvenile Court Law. v. F.M., Defendant and Appellant. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent,
Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. 21DP0691, Lindsey E. Martinez, Judge. Affirmed.
Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant.
Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
OPINION
GOETHALS, J.
F.M. (Mother) appeals the order terminating her parental rights. Mother's sole contention on appeal is that the order must be reversed, and the case remanded to the juvenile court because the court never formally concluded its inquiry regarding the applicability of the Indian Child Welfare Act (25 U.S.C. § 1912(a); see Welf. and Inst. Code § 224.2) (ICWA) to this case. However, after respondent, the Orange County Social Services Agency (SSA), pointed out in its brief that the court did make the required finding, Mother conceded the point. We agree and therefore affirm the order.
FACTS
When K.L. was born in June 2021, she tested positive for fentanyl. Mother, who tested positive for amphetamine and opiates at the time of K.L.'s birth, already had two older children removed from her custody and she had yet to reunify with either. After K.L. was detained at the hospital, SSA filed a dependency petition on June 29, 2021.
The petition alleged several grounds for establishing dependency jurisdiction, including substance abuse, mutual domestic violence between the parents, mental health issues, and inflicting inappropriate discipline against K.L.'s older half-siblings.
At the detention hearing, the court found it was an urgent necessity that the child be detained under the protection of SSA. It also found ICWA was not applicable to the case.
The court sustained the dependency petition, and both parents were offered reunification services. However, the reunification plan was terminated in August 2022, and the court set a Welfare and Institutions Code section 366.26 permanency hearing.
At the hearing, the stipulated ruling called for SSA to continue efforts to inquire about possible Native American ancestry, and also ordered the parents to continue to provide SSA with the names and contact information of any family members who might have relevant information related to their child's possible Native American heritage.
In late August and early September 2022, both parents again denied any Native American heritage. A maternal uncle also denied knowing of any such heritage. Both the parents and the uncle also denied having contact information for any other family members who might have additional information.
On May 23, 2023, the court entered an order terminating parental rights to K.L. and freeing her for adoption. The court also "note[d] for the record that [SSA] has complied with all inquiry under ICWA.... That even after an ICWA determination was made that ICWA did not apply, [SSA] continued an ongoing obligation to inquire as to all relatives, all identified relatives to inquire as to contact information for additional relatives. In fact, it has exhausted its ICWA efforts. Mother and Father and all relatives contacted indicated there was no Native American ancestry."
DISCUSSION
1. Formal ICWA Ruling
The sole argument Mother makes on appeal is that, although the juvenile court engaged in an inquiry about whether K.L. had Native American heritage as required by Welfare and Institutions Code section 224.2, subdivisions (a) through (c), it failed to make any formal finding that the inquiry had been satisfactorily concluded. She requests that this court reverse the order terminating her parental rights and remand the case back to the juvenile court with directions that it make an appropriate finding.
In its respondent's brief, SSA demonstrated that the court had in fact made explicit findings about SSA's fulfillment of its ICWA obligations during the May 23, 2023 hearing. Mother's counsel then conceded the point. He sent this court a letter acknowledging he had erred in claiming otherwise.
We have examined the record, and agree the court made a proper finding that SSA completed the required ICWA inquiry. Consequently, Mother has demonstrated no error which would justify a reversal of the order terminating her parental rights.
2. Retroactive Treatment as a "No Arguable Issue" Appeal
In his letter conceding that the single issue raised on appeal lacked merit, Mother's counsel requested that we retroactively treat appellant's opening brief as "in effect, a brief that has been filed under In re Phoenix H. (2009) 47 Cal.4th 835 and In re Sade C. (1996) 13 Cal.4th 952"-i.e., a brief conceding that no arguable appellate issues have been identified. We decline to do so.
In In re Sade C., supra 13 Cal.4th 952 (Sade C.), our Supreme Court ruled that when counsel who has been appointed to represent the appellant in a juvenile dependency appeal is unable to identify any arguable issues, the appellate court has no independent obligation to review the record and attempt to identify such issues. Instead, the court may dismiss the appeal as abandoned. (Id. at p. 994.)
In In re Phoenix H., supra, 47 Cal.4th 835 (Phoenix H.), our Supreme Court affirmed that the Court of Appeal has no obligation to conduct an independent review of the record in a dependency case when appointed counsel identifies no arguable issues. But Phoenix H. leaves open the possibility that the parent may be allowed to file a brief. (Id. at p. 845.)
Specifically, Phoenix H. states that in a case where appointed counsel finds no arguable issues, he or she "need not and should not file a motion to withdraw but should (1) inform the court he or she has found no arguable issues to be pursued on appeal, (2) file a brief setting out the applicable facts and the law, and (3) provide a copy of the brief to the parent." (Phoenix H., supra, 47 Cal.4th p. 843.) In such a case, "the Court of Appeal is not required to permit the parent to file an additional brief absent a showing of good cause." (Ibid.) "Instead, . . . the Court of Appeal has the discretion to permit the parent to personally file a brief and must do so only upon a showing of good cause that an arguable issue does, in fact, exist." (Id. at p. 844.)
The opening brief filed by appellant's counsel in this case does not acknowledge that there are no arguable appellate issues raised in the record; thus, it does not effectively notify Mother of that fact, nor of this court's discretion to consider a brief she might seek to file. It therefore does not provide Mother with the information contemplated in Phoenix H.
We also reject appellate counsel's alternative suggestion, that he could revise his opening brief to comply with Phoenix H., because that process would significantly delay the resolution of this appeal. Such a delay is not justified in a case where "'the chance of error is negligible.'" (Phoenix H., supra, 47 Cal.4th at p. 844, quoting Sade C., supra, 13 Cal.4th at pp. 990-991).
DISPOSITION
The order is affirmed.
WE CONCUR: MOORE, ACTING P. J., SANCHEZ, J.