Opinion
D072200
10-25-2017
In re D.F., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. PHILIP O., Defendant and Appellant.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Kristen M. Ojeil, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J519377) APPEAL from an order of the Superior Court of San Diego County, Michael Martindill, Referee. Affirmed in part, reversed and remanded with instructions in part. Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Kristen M. Ojeil, Deputy County Counsel, for Plaintiff and Respondent
Philip O. (Father), father of D.F. (Child) appeals from an order following a six-month status review hearing (Order) conducted under Welfare and Institutions Code section 366.21, subdivision (e). He contends that the juvenile court erred in two respects: (1) terminating his reunification services; and (2) ruling that further notice pursuant to the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) was not required.
Because the juvenile court did not abuse its discretion, we will affirm that part of the Order terminating reunification services for Father. Because the San Diego County Health and Human Services Agency (Agency) — i.e., the petitioner in the juvenile court and a party with "an affirmative and continuing duty to inquire whether a child . . . is or may be an Indian child" in a dependency proceeding (Welf. & Inst. Code, § 224.3, subd. (a); Cal. Rules of Court, rule 5.481(a)) — acknowledges that the ICWA notices were deficient and stipulates for a limited remand to determine the sufficiency of updated ICWA notice, we will reverse that part of the Order determining that no further ICWA notice is necessary; and we will remand the matter for the juvenile court to ensure compliance with the notice provisions of ICWA
Further undesignated statutory references are to the Welfare and Institutions Code, and further undesignated rule references are to the California Rules of Court.
I.
FACTUAL AND PROCEDURAL BACKGROUND
"In accord with the usual rules on appeal, we state the facts in the manner most favorable to the dependency court's order." (In re Janee W. (2006) 140 Cal.App.4th 1444, 1448, fn. 1.)
Child was born in mid-2016, and on the date of the Order, Child was approximately 11 months old.
At the time of Child's birth, Child and Child's mother tested positive for methamphetamines and marijuana. At the hospital after the birth, the mother suffered a psychotic episode while attempting to breastfeed Child and was placed on a psychiatric hold. In addition, both parents were homeless and unprepared for the baby's arrival. Based on these and other related background facts, the Agency filed a petition under section 300, subdivision (b)(1), alleging that newborn Child needed the protection of the juvenile court due to the mother's "mental illness, developmental disability or substance abuse." A. Termination of Father's Reunification Services
The mother is not a party to this appeal.
For example, the mother had not received prenatal care during the pregnancy; the mother had a long history of substance abuse, including use of methamphetamine and marijuana during pregnancy; and the mother had a long history of mental health issues, including diagnoses of schizophrenia and bipolarity with hospitalizations in 2010 and 2011.
Following the detention hearing and genetic testing, the juvenile court found that Father is Child's biological father and entered a judgment of paternity.
At the contested adjudication and disposition hearing the juvenile court made true findings on the two counts in the petition; exercised jurisdiction over Child and declared Child to be a dependent of the court (§ 360, subd. (d)); removed Child from the custody of both parents (§ 361, subd. (c)(1)); and placed Child in foster care. By this time — which was approximately two and a half months after Child's birth and the filing of the Agency's petition — both Father and the mother were receiving reunification services, and the juvenile court ordered that the Agency continue providing services "consistent with" each parent's case plan, including psychological evaluations. At the conclusion of the hearing, the court set a section 366.21, subdivision (e), six-month status review hearing.
The juvenile court's order also provided in part: "Because the child was under three years old . . . when removed from parents' care, the parents have six months to participate regularly and make substantive progress in court-ordered treatment programs and to cooperate with or use department services provided by [the] Agency, or parental rights could be terminated and a permanent plan made for the child for adoption, legal guardianship, or another planned permanent living arrangement." (Italics added.) Although neither parent attended the hearing to be orally advised of the six-month deadline, the clerk of the court served the order (with the above-quoted language) on Father and the mother at their last known addresses.
The six-month status review hearing — which, after continuances, did not take place until more than eight months after the contested adjudication and disposition hearing — was conducted as a documents trial. Following the trial, in the written Order, the juvenile court found that the extent of Father's progress toward alleviating or mitigating the causes necessitating Child's foster care placement had been "minimal" and, accordingly, terminated the previously mandated reunification services for Father. More specifically, the court orally ruled in part that, because of Father's lack of cooperation with the Agency and the lack of participation in reunification services, "it is futile to continue to offer services to [F]ather." The evidence on which the court based the finding on Father's (lack of) progress is found in the documents and stipulated testimony of the social worker admitted into evidence at the hearing. We will discuss this evidence in detail at part II.A., post. B. ICWA Compliance
At the conclusion of the trial, the court orally ruled that "[F]ather's progress in th[e] services was none." (Italics added.)
In contrast, as to the mother, the court found that the extent of her progress had been "moderate" and ordered the Agency to continue providing services consistent with her case plan.
The juvenile court received into evidence without objection the following documents: a March 1 status review report from the Agency; a March 1 report from the court-appointed special advocate for Child; two April 4 addendum reports from the Agency (the first of which includes Father's psychological assessment); and the curriculum vitae of the social worker. Over Father's objection, the court also received into evidence a May 11 addendum report from the Agency, but Father raises no issue on appeal as to the admissibility of this report.
At the contested adjudication and disposition hearing, the juvenile court found that the "ICWA notices are appropriate." At the original six-month review hearing (which resulted in a continuance after both parents requested a trial on the issue of termination of services), the court ruled that "[ICWA] does not apply in this case. [¶] Notice pursuant to [ICWA] is not required because the Court knows [Child] is not an Indian child. Reasonable inquiry has been made to determine whether or not [Child] is or may be an Indian child." The court repeated these last two sentences in its written findings, contained in the Order, following the six-month review hearing.
We omit the evidence in the record that arguably supports these findings, because the Agency concedes that the ICWA notices on which the juvenile court's ruling were based are "deficient."
Approximately three months after the juvenile court filed its Order (which was approximately one month after Father filed his opening brief on appeal), the Agency filed, and this court granted, an unopposed motion to augment the record on appeal to include an addendum report filed in the juvenile court (August 16 Addendum). According to the Agency's merits brief on appeal, based on the evidence in the August 16 Addendum — which the Agency describes as "updated notice . . . to the [Indian] tribes with all information known to the Agency after further inquiry" — Father's argument regarding noncompliance with ICWA is now moot.
In his reply brief, Father contends that, despite the Agency's efforts reflected in the August 16 Addendum, the issue of ICWA compliance is not moot. According to Father, even the augmented record on appeal does not contain evidence of sufficient compliance with section 224.2's notice requirements.
We will discuss the Agency's concession and related mootness argument in part II.B., post.
II.
DISCUSSION
Father first contends that the juvenile court erred in terminating his reunification services. We disagree and will affirm that portion of the Order terminating such services.
Father next argues that the Agency and the juvenile court did not sufficiently comply with the inquiry and notice requirements of ICWA. Given the Agency's concession that the ICWA notices were deficient, we will reverse that portion of the Order finding ICWA compliance and remand for further proceedings — without considering the post-Order evidence contained in the August 16 Addendum. A. The Juvenile Court Did Not Err in Terminating Father's Reunification Services
The general purpose of dependency law is to safeguard the welfare and best interests of children in the State of California. (§ 202, subds. (a), (b); In re Malinda S. (1990) 51 Cal.3d 368, 384 ["the paramount concern is the child's welfare"].) To this end, when a minor is removed from the home, " 'the court first attempts, for a specified period of time, to reunify the family.' " (Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1008; see § 202, subd. (a) [after removal, reunification is "a primary objective"].) Family reunification services play a critical role in dependency proceedings under both federal and state law. (42 U.S.C. §§ 629, 629a(a)(7); § 361.5, subd. (a); In re A.G. (2017) 12 Cal.App.5th 994, 1000; In re Alanna A. (2005) 135 Cal.App.4th 555, 563 (Alanna A.).) Reunification may be achieved by providing services that include "a full array of social and health services to help the child and family and to prevent reabuse of children." (§ 300.2; see § 16501, subd. (h), rule 5.502(8), (33); 42 U.S.C. § 629a(a)(7).)
Section 361.5, subdivision (a) provides that where (as here) the child is removed from the custody of a parent, the juvenile court "may order services for . . . the biological father, if the court determines the services will benefit the child" (italics added); however, "[t]he provision of reunification services to a biological father is discretionary . . ." (Alanna A., supra, 135 Cal.App.4th at p. 564, italics added). Stated more generally, "[b]ecause reunification services are a benefit, not a constitutional entitlement, the juvenile court has discretion to terminate those services at any time, depending on the circumstances presented." (In re Jesse W. (2007) 157 Cal.App.4th 49, 60 (Jesse W.), italics added; id. at p. 65.) Accordingly, we will review for an abuse of discretion that part of the Order terminating Father's reunification services. (Ibid.; Alanna A., at p. 564 [juvenile court has "discretion to terminate services" at the six-month status review hearing].)
In reviewing the Order for abuse of discretion, we " ' "must consider all the evidence, draw all reasonable inferences, and resolve all evidentiary conflicts, in a light most favorable to the trial court's ruling." ' " (In re Natalie A. (2015) 243 Cal.App.4th 178, 186 (Natalie A.) [appeal from order directing reunification services].) Father acknowledges this standard, suggesting that the juvenile court's decision here is not supported by substantial evidence. We disagree.
In determining the sufficiency of the evidence in support of the court's exercise of its discretion, the testimony of a single witness or evidence from a single document may be sufficient (Evid. Code, § 411), whereas even uncontradicted evidence in favor of a contrary finding does not establish the fact for which the evidence was submitted (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 890). On appeal, all evidence in support of the finding " 'must be accepted as true and that which is unfavorable discarded as not having sufficient verity to be accepted by the trier of fact.' " (In re Brittany H. (1988) 198 Cal.App.3d 533, 549 (Brittany H).) Thus, "even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence," we do not consider such evidence in determining whether the court properly exercised its discretion. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228 (Dakota H.).) Once we are satisfied that substantial evidence supports a termination of services, to determine whether the juvenile court abused its discretion in terminating the services," ' "[t]he precise test is whether any rational trier of fact could conclude that the trial court order advanced the best interests of the child" ' "; and if so, then we must affirm. (Natalie A., supra, 243 Cal.App.4th at p. 187.)
Father relies on a more generic test: "A trial court abuses its discretion when it renders a decision which is arbitrary, capricious, or patently absurd. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)" Another commonly cited test for determining an abuse of discretion is whether, " ' "under all the evidence, viewed most favorably in support of the trial court's action, no judge could reasonably have made the order that he did." ' " (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) The result here is no different under any of these tests for the abuse of discretion standard of review. (See fn. 15, post.)
The starting point for an evaluation of reunification services for a parent is the parent's case plan. (See In re Adrianna P. (2008) 166 Cal.App.4th 44, 59 ["reunification services play a 'crucial role' in dependency proceedings and a case plan must be carefully tailored to meet the needs of the child and family"].)
Here, Father's case plan service objectives required Father to: (1) comply with medical or psychological treatment; (2) consistently, appropriately and adequately parent Child; and (3) stay free from illegal drugs and show the ability to live free from drug dependency, including compliance with all required drug testing. Correspondingly, Father's case plan responsibilities included the following: (1) counseling and mental health services, which required a psychological evaluation by an approved evaluator and follow through on referrals from the evaluator with engagement of services recommended by the evaluator; (2) education services, which require participation in an approved parenting education program with proof of completion of the parenting course; and (3) substance abuse services and testing, which require an initial meeting with an approved substance abuse specialist, follow through on the specialist's recommendations, evidence of completion of and graduation from an approved drug treatment program, and participation in (and clean test results from) random substance abuse testing.
This includes the additional requirements that Father: be honest about his addiction; develop a plan for relapse; maintain a support system to keep him accountable; agree to random drug testing (and, if he tests positive, to see and follow the recommendations of an approved substance abuse specialist); attend Narcotics Anonymous meetings, in addition to any drug treatment; upon graduation from the approved drug treatment program, continue attending Narcotics Anonymous meetings, obtain a sponsor, and work the 12 steps; and notify the social worker and be re-referred to another substance abuse treatment program if he is unsuccessfully discharged from or fails to participate in the original referred program.
Notably, Father was not only aware of the court-ordered case plan which had been reviewed with him, but also reminded of it on numerous occasions and given copies of it throughout the process. Moreover, the Agency "repeatedly" reminded Father that he was required to show "substantial progress" by the six-month status review hearing or his reunification services could be terminated.
Given these service objectives and responsibilities in Father's case plan, we now look at the evidence in support of the juvenile court's ruling terminating Father's reunification services. (Natalie A., supra, 243 Cal.App.4th at p. 186; Dakota H., supra, 132 Cal.App.4th at p. 228; Brittany H., supra, 198 Cal.App.3d at p. 549.)
A few months after the adjudication and disposition hearing (at which the juvenile court ordered reunification services for Father), Father was arrested and convicted of domestic violence involving an incident with the mother — following which he yelled at the arresting deputy and kicked in the door of the deputy's vehicle. At the time of the six-month status review hearing, Father was on probation both in Riverside County on the domestic violence conviction and in San Diego County for a conviction related to possession of a stolen motorcycle. Father had not enrolled in the 52-week domestic violence class required as a condition of his Riverside County probation.
In continued denial, Father asserted that the domestic violence never happened and claimed that he had been given the motorcycle.
Father did not follow through with the housing referrals he received, continuing to remain homeless.
When Father visited the Agency office, at times he arrived unkempt and dirty; at times he also acted irritable, argumentative and confrontational at the Agency office; and at other times his speech was affected and he did not make sense.
According to the social worker, instead of having followed his case plan, Father "has picked and chosen what he was willing to cooperate with." Significantly, Father denied the need for drug or alcohol treatment, would not meet with a substance abuse specialist, and refused all requests for on-demand drug testing. This is despite his admissions to a history of drug use and to being under the influence of alcohol when he was arrested for the then-recent domestic violence charge that resulted in the Riverside County probation. The Agency gave Father multiple referrals to an approved substance abuse specialist, yet Father failed to follow through, repeatedly stating that had his own reasons for not doing so and that he would do "these things" in his own time.
Elsewhere, the Agency reported that Father stated he had different priorities than those in his court-ordered case plan.
Father had difficulty scheduling and attending the court-ordered psychological evaluation and completed it only after the evaluator reported to the social worker, who ultimately obtained Father's cooperation. As a result, the evaluator could not complete the report in time for the originally scheduled six-month status review hearing.
Before the date of the continued hearing, Father was arrested for possession of a stolen vehicle. During Father's two-week incarceration, Father failed to attend: a drug treatment center intake appointment, a referral for parenting services and housing advocacy, an Agency on-demand drug test, and visitation with Child (which resulted in the cancellation of all future visits at the visitation center). On the date of his release, Father met with the social worker — but not until after Father first had consumed alcohol. Later that same day, Father met with a substance abuse specialist, who referred Father to a drug treatment center, where Father made an intake appointment for the next day. Father attended the appointment, but did not qualify for the program because, according to the treatment center representative, " '[Father] didn't show a real desire or willingness and he didn't think he had a substance abuse problem.' "
Father reported to the social worker that he (Father) had been arrested on an open warrant based on the theft of a sleeping bag.
Father reported to the social worker that the program had no current openings and that he was to attend 14 Alcoholics Anonymous meetings and return in two weeks. Father told the social worker that he had been attending the required meetings, but Father could provide no confirmation of attendance.
Upon his release from jail, Father remained homeless for weeks, during which time his parenting referral terminated all services. Father had missed seven appointments and "had not made any progress since services began." (Italics added.)
In general, Father failed to engage the reunification services that were offered to him.
At a meeting with the social worker about a month before the continued six-month status review hearing, Father reacted to a conversation about reunification services (and the Agency's recommendation to terminate them at the hearing) in a "hostile and argumentative tone." Father became "increasingly agitated" to the point that he was asked to leave the Agency's office due to general safety concerns based on his escalating behavior.
Father's psychological evaluation did not advance Father's entitlement to continued reunification services. At the initial interview, Father presented as "confrontational" and "resistant." At the continuation of the interview, he presented as "guarded," questioning the need for the evaluation and arguing that he and the Child's mother were being unjustly targeted by law enforcement and child welfare services. The evaluator described Father's "lack of insight that permeated the assessment," commenting that it likely affected Father's responses and resulted in "data that reflect[] more of the image and perspective [Father] wished to portray, rather than his genuine functioning." For example, Father refused to discuss his criminal history, which included (according to the evaluator's documentation) arrests for vehicle theft, possession of a controlled substance, possession of drug paraphernalia, and possession of a tear gas weapon. Consistently, Father's refusal to discuss his substance abuse history (especially given the information known to the evaluator from other sources) "underscore[d] [Father's] lack of insight and intent to minimize his substance use." Although Father acknowledged a history of dependency on illicit substances, he contended that such behavior was in the past; however, this acknowledgement and contention — combined with his refusal to work with a substance abuse specialist or to provide drug testing — created the evaluator's suspicion of Father's continued substance abuse.
Among other diagnoses, the evaluator concluded that Father had the capability both to make appropriate and meaningful use of the "insight-oriented services" that were offered him and to develop insight, reflecting upon himself and his choices, based on the guidance received during these services. This capability, however, was insufficient to demonstrate Father's ability to benefit from continued services. Father's lack of motivation "continues to be [Father's] greatest impediment" to benefitting from the services being offered: "[U]nless [Father] is willing to forgo the defensive, grievous stance he takes in regard to his alleged involvement in [Child's] removal, his relationship with [the mother], past/current substance use, and the power to make some positive changes that will ultimately benefit both himself and [Child], [the] likelihood of [Father] benefitting from reunification services is judged to be minimal." (Italics added.)
We have also reviewed and considered the evaluator's psychological findings contained in the record. Acknowledging their confidentiality, we have intentionally omitted a detailed recitation of them. That said, there is nothing in the findings that calls into question the substantiality of the evidence discussed in the text, ante, on which we will base our ruling.
Based on the foregoing, the record contains sufficient evidence to support the juvenile court's decision to terminate reunification services for Father.
Given this evidence, the juvenile court did not abuse its discretion in terminating such services for Father, because that ultimate decision is "rationally tailored to advancing [Child's] best interests." (Natalie A., supra, 243 Cal.App.4th at p. 187.) Even where (as here) there remains the possibility of reunification within the statutory time limits, "the termination of services previously not utilized or wanted is a step toward eliminating uncertainty in the lives of very young children and ultimately achieving the stability and permanence the Legislature sought to provide for them." (Jesse W., supra, 157 Cal.App.4th at p. 64.) " 'In such a case, the general rule favoring reunification services is replaced by a legislative assumption that offering services would be an unwise use of governmental resources.' " (Id. at pp. 64-65, quoting Alanna A., supra, 135 Cal.App.4th at p. 566; accord, In re E.G. (2016) 247 Cal.App.4th 1417, 1426 [" 'it may be fruitless to provide reunification services under certain circumstances' "].) For these reasons, in exercising its discretion, the juvenile court has "the option to terminate reunification services after six months when a parent of a minor under the age of three has 'made little or no progress in [his or her] service plan[] and the prognosis for overcoming the problems leading to the child's dependency is bleak.' " (Jesse W., at p. 64.)
Under the standard recited in Father's opening brief (see fn. 8, ante), based on the evidence recited in the text, ante, the juvenile court did not abuse its discretion in terminating reunification services for Father, because that ultimate decision was neither " ' "arbitrary, capricious, [n]or patently absurd." ' " (In re Stephanie M., supra, 7 Cal.4th at p. 318.)
Father argues that the juvenile court abused its discretion "because of the continuation of the services to [Child's] mother and the fact that [F]ather's positive relationship with [Child] is likely to continue." However, those facts support a ruling contrary to the ruling made by the juvenile court and on review in this appeal. Because we are reviewing the substantiality of evidence in support of the decision of the juvenile court — i.e., the first step in our determination that the court did not abuse its discretion — we do not consider the evidence in support of a ruling other than the ruling actually made. (Dakota H., supra, 132 Cal.App.4th at p. 228.) Stated differently, since we are reviewing the record for evidence in support of a decision to terminate reunification services for Father, any evidence in support of the continuation of such services — regardless how substantial — is " 'discarded as not having sufficient verity to be accepted by the trier of fact.' " (Brittany H., supra, 198 Cal.App.3d at p. 549.) To have succeeded in his evidentiary challenge, Father was required to — but did not — establish how or why the evidence in support of the juvenile court's ruling was not substantial. (Dakota H., at p. 228; Brittany H., at p. 549.)
Elsewhere in his opening brief, Father acknowledges that a juvenile court has the discretion to terminate reunification services for one parent while continuing them for the other parent. (See Jesse W., supra, 157 Cal.App.4th at pp. 59-60, 65 [court did not abuse its discretion in terminating services for mother, but not father, at six-month status review hearing].)
For example, Father argues that "[al]though [F]ather has had little success in engaging in services, he remained open to doing so, even requiting additional referrals for parenting education." Given the ruling on review — namely, that Father's reunification services are terminated — we do not consider that Father "remained open" to receiving services or that he "requit[ed] additional referrals," since both of those facts support a contrary finding. Rather, given the standard of review, from Father's proffered statement we consider only that "[F]ather has had little success in engaging in services" and that the reason Father "requit[ed] additional referrals for parenting education" is that he had been unsuccessfully terminated from services by the original referral because he missed seven appointments and had not made any progress since the services began.
For the foregoing reasons, Father did not meet his burden of establishing that the trial court abused its discretion in terminating reunification services. B. The Juvenile Court Erred in Finding Compliance with ICWA's Inquiry and Notice Requirements
"The minimum standards established by ICWA include the requirement of notice to Indian tribes in any involuntary proceeding in state court to place a child in foster care or to terminate parental rights 'where the court knows or has reason to know that an Indian child is involved.' (25 U.S.C. § 1912(a).)" (In re Isaiah W. (2016) 1 Cal.5th 1, 8 (Isaiah W.).) That is because ICWA permits tribal participation in certain proceedings in which parental rights may be terminated and requires evidence that allows the trial court to make specified findings as to notice prior to any such termination of rights. (In re Adoption of Hannah S. (2006) 142 Cal.App.4th 988, 994-995.)
Both the juvenile court and the Agency "have an affirmative and continuing duty to inquire whether [Child] . . . is or may be an Indian child." (§ 224.3, subd (a).) Consistently, rule 5.481(a) is entitled "Inquiry" and directs in part: "The court . . . and party seeking a foster-care placement, . . . termination of parental rights, or adoption have an affirmative and continuing duty to inquire whether a child is or may be an Indian child . . . ." Section 224.2 provides a detailed procedure to ensure compliance with ICWA's notice provisions. (See Isaiah W., supra, 1 Cal.5th at pp. 5, 9 [§ 224.2 "codifies and elaborates on ICWA's requirements of notice"].)
Father argues that, because neither the Agency nor the juvenile court did enough to determine whether ICWA applies to this case, the court erred in ruling that no further ICWA notice is necessary. More specifically, Father argues that the notices that were sent to three specifically identified Indian tribes were incomplete (and thus inaccurate), despite the Agency's ability to obtain the omitted information from Child's relatives. The Agency concedes that the ICWA notices on which the juvenile court's rulings were based "lacked complete information easily obtainable by the Agency." We agree with and accept the Agency's concession and, accordingly, conclude that the juvenile court erred in finding the ICWA notices sufficient for purposes of ICWA compliance.
After Father filed his opening brief in this appeal (in which he raised the issue of ICWA compliance), the Agency filed its August 16 Addendum in the juvenile court and augmented the record in this appeal to include the August 16 Addendum. In the August 16 Addendum, the Agency provides evidence of additional efforts it undertook — after the filing of Father's opening brief in this appeal — to provide the requisite ICWA notice to the three Indian tribes. Based on this additional evidence, in its brief on appeal the Agency contends that there has now been full ICWA compliance and asks that we consider this new evidence, that we conclude Father's argument is now moot, and that we affirm that portion of the Order in which the juvenile court found adequate ICWA notice and compliance. In the alternative, the Agency still concedes the deficiencies in the earlier notices and "stipulate[s] to a limited reversal and an expedited remittitur." (Italics added.)
In his reply, Father contends that the issue of ICWA compliance is not moot, arguing that the August 16 Addendum does not contain substantial evidence of sufficient compliance with section 224.2's detailed notice requirements.
Given the parties' conflicting positions on the sufficiency of the evidence in the August 16 Addendum and our limited role, we decline the Agency's invitation to decide the issue of ICWA compliance in the first instance. Accordingly, we reverse that part of the Order determining that no further ICWA notice is necessary and remand the matter for the juvenile court to ensure compliance with the notice provisions of ICWA.
Fundamentally, the purpose of an appeal is not to determine disputed issues (especially factual issues) in the first instance, but to review for error decisions of the trial court. (In re Zeth S. (2003) 31 Cal.4th 396, 403.) --------
DISPOSITION
The part of the Order in which the juvenile court ruled that no further ICWA notice is required is reversed, and the matter is remanded with directions that the court ensure full compliance with the notice provisions of ICWA. In all other respects, the Order is affirmed.
IRION, J. WE CONCUR: HUFFMAN, Acting P. J. DATO, J.