Opinion
D077955
02-17-2021
In re L.L. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. D.H., Defendant and Appellant.
Emily Uhre, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Emily Harlan, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. J520346A-B) APPEAL from orders of the Superior Court of San Diego County, Browder A. Willis III, Judge. Appeal dismissed in part; order reversed in part and remanded with directions. Emily Uhre, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Emily Harlan, Deputy County Counsel, for Plaintiff and Respondent.
D.H. (Mother) appeals jurisdictional and dispositional orders issued on September 15, 2020, in the Welfare and Institutions Code section 300 dependency cases of her children, L.L. and M.W. In her opening brief, Mother does not present any substantive argument challenging the jurisdictional and dispositional order in L.L.'s case. She only contends that the order in M.W.'s case must be reversed and remanded because the San Diego County Health and Human Services Agency (Agency) did not comply with its inquiry obligations under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA), as codified in section 224.2.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
In response, the Agency asks that we take judicial notice of the juvenile court's order, dated December 14, 2020, terminating its dependency jurisdiction over L.L. We grant that request. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).) In its respondent's letter brief, the Agency argues that Mother's appeal should be dismissed in part to the extent that she appealed the order in L.L.'s case. It then concedes that it did not comply with its inquiry obligations under ICWA and section 224.2 in M.W.'s case and that a limited remand of her case is appropriate so that it can conduct additional inquiry regarding M.W.'s possible status as an Indian child. On January 22, 2021, the parties filed a joint stipulation (Stipulation) noting that the juvenile court had terminated its dependency jurisdiction in L.L.'s case, acknowledging that Mother had not raised any arguments for reversal of that order, and stating that they anticipate we will dismiss Mother's appeal to that extent. Regarding M.W.'s case, the Stipulation sets forth the Agency's concession that it erred in its compliance with the initial inquiry obligations under ICWA and California law, and that the matter should be remanded with directions that the juvenile court order the Agency to comply with those obligations. Finally, the parties stipulated to the immediate issuance of our remittitur in this case. (Cal. Rules of Court, rule 8.272(c)(1).) Based on our reasoning below, we accept the Stipulation, dismiss the appeal in part to the extent it challenges the order in L.L.'s case, reverse the order in M.W.'s case and remand with directions for the court to order the Agency to comply with its inquiry obligations under section 224.2, and instruct the clerk of this court to issue the remittitur forthwith.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2020, the Agency filed section 300 dependency petitions for L.L. and M.W. Although Mother denied any Indian heritage, M.W.'s father (Father) told an Agency social worker that his mother had told him he had Cherokee heritage. Father denied he was registered or affiliated with a tribe. At the children's detention hearing, Mother's counsel represented that Mother told her she did not believe either of her children had any Native American heritage through their respective fathers. On that basis, the court found ICWA did not apply. A few days later, Father told the Agency that, to his knowledge, he did not have Native American heritage, but that his mother told him "I ha[d] Indian in me." However, he stated that he did not know of any specific tribe and that no family member was registered with a tribe. Subsequently, the Agency spoke with four of M.W.'s paternal relatives about placing M.W., but in so doing did not ask any of them about Father's statements regarding possible heritage in either a Cherokee tribe or an unidentified tribe.
L.L. and M.W. have different fathers. L.L.'s father, La.L., and his counsel stated that he does not have any Native American heritage.
In July 2020 at the initial jurisdiction and disposition hearing, Father's counsel informed the court that Father indicated he did not have Native American heritage. The court then found that ICWA's notice requirements did not apply as to M.W. because reasonable inquiry had been made to determine whether M.W. was or may be an Indian child and it knew M.W. was not an Indian child. On September 15, 2020, at the contested jurisdiction and disposition hearing, the court restated its prior ICWA findings without further discussion of any ICWA issues concerning M.W. and issued its jurisdictional and dispositional orders regarding both L.L. and M.W. Mother timely filed a notice of appeal challenging those orders.
DISCUSSION
1. Mother's Appeal Of The Order In L.L.'s Case Is Moot
Although Mother's notice of appeal challenged, in part, the September 15, 2020 order in L.L.'s case, her opening brief did not present any substantive argument for reversal of that order. In any event, according to the December 14, 2020 order (of which we have taken judicial notice), the court subsequently terminated its jurisdiction in L.L.'s case. Because we cannot now provide Mother with any effective relief as to L.L., her appeal of the September 15, 2020 order in that case is moot. (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541 [appellate court will dismiss appeal when event occurs that renders it impossible for court to grant effective relief]; cf. In re David B. (2017) 12 Cal.App.5th 633, 650, 652 [appeal of order finding court had no dependency jurisdiction was moot because child had reached age 18].) Mother does not argue otherwise and implicitly, if not expressly, concedes in the Stipulation that her appeal of the order in L.L.'s case is moot. Accordingly, we dismiss Mother's appeal to the extent she challenges that order. 2. The Agency Failed To Comply With Section 224 .2 In M.W.'s Case
Effective January 1, 2019, sections 224.2 and 224.3 were enacted to specify California's current ICWA inquiry and notice requirements for juvenile dependency cases. Under sections 224.2 and 224.3, the Agency and the juvenile court are generally obligated to: (1) conduct an initial inquiry regarding whether there is a reason to believe the child is an Indian child; (2) if there is, then conduct a further inquiry to determine whether there is a reason to know the child is an Indian child; and (3) if there is, then provide ICWA notice to allow the tribe to make a determination regarding the child's tribal membership. (See generally In re D.S. (2020) 46 Cal.App.5th 1041, 1048-1052; In re Austin J. (2020) 47 Cal.App.5th 870, 882-885.) During the further inquiry process, the Agency must, among other things, contact any tribes identified during its initial inquiry that may reasonably be expected to have information regarding the child's tribal status or eligibility, using the contact information for that tribe's designated agent for ICWA notices. (§ 224.2, subd. (e)(2)(C).)
Mother asserts, and the Agency concedes, that as to M.W. it did not comply with its initial inquiry obligations under ICWA and section 224.2. In particular, the Agency concedes it should have, but did not, ask M.W.'s paternal extended family members with whom it had spoken regarding other issues (e.g., M.W.'s paternal uncle and her paternal grandfather) about M.W.'s or Father's possible Cherokee or other tribal heritage. Although it concedes it so erred, the Agency disagrees with Mother's apparent assertion that its error was prejudicial and instead argues it is not reasonably probable Mother would have obtained a more favorable result at the September 15, 2020 jurisdiction and disposition hearing had it complied with its section 224.2 inquiry obligations. The Agency asserts that the appropriate remedy is for us to reverse the order as to M.W. with a limited remand for it to comply with its ICWA inquiry obligations under section 224.2.
We agree with the Agency. By entering into the Stipulation, Mother impliedly, if not expressly, also agrees with the Agency.
Code of Civil Procedures section 128, subdivision (a)(8), provides in relevant part:
"An appellate court shall not reverse or vacate a duly entered judgment upon an agreement or stipulation of the parties unless the court finds both of the following: [¶] (A) There is no reasonable possibility that the interests of nonparties or the public will be adversely affected by the reversal. [¶] (B) The reasons of the parties for requesting reversal outweigh the erosion of public trust that may result from the nullification of a judgment and the risk that the availability of stipulated reversal will reduce the incentive for pretrial settlement."Based on our independent review of the record, we conclude that we should accept the Stipulation. First, there is no reasonable possibility that reversal will adversely affect the interests of nonparties or the public. The record does not show any objections by nonparties to the Stipulation or, more importantly, to additional inquiry by the Agency regarding M.W.'s heritage pursuant to section 224.2. Also, reversal will not adversely affect public interests, but will instead ensure compliance with section 224.2 and the public interests reflected in that statute. Second, the parties request the reversal of the jurisdictional and dispositional order in M.W.'s case to ensure compliance with section 224.2; in so doing, their reason for reversal advances, rather than erodes, the public trust. Furthermore, their agreement will not lead to a risk of reducing any incentive for pretrial settlement. Accordingly, we accept the Stipulation and direct the juvenile court to order the Agency to comply with its section 224.2 inquiry obligations. (Code Civ. Proc., § 128, subd. (a)(8); cf. In re Rashad H. (2000) 78 Cal.App.4th 376, 380-382 [accepted parties' stipulated reversal after applying Code Civ. Proc., § 128, subd. (a)(8) factors].)
DISPOSITION
The appeal of the September 15, 2020 order in L.L.'s dependency case is dismissed. The September 15, 2020 order in M.W.'s dependency case is reversed and the case is remanded to the juvenile court with directions that it order the Agency to comply with section 224.2 and file all required documentation with the court for its review and consideration. If, after compliance with section 224.2, the court finds that no ICWA notice is required to be given to any tribe, the original jurisdictional and dispositional order issued on September 15, 2020 in M.W.'s case shall be reinstated. The clerk of this court shall issue the remittitur forthwith. (Cal. Rules of Court, rule 8.272(c)(1).)
DATO, J. WE CONCUR:
BENKE, Acting P. J.
O'ROURKE, J.