Opinion
H050190 H050378
10-06-2023
In re J.H., a Person Coming Under the Juvenile Court Law. v. G.M., Defendant and Appellant. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Plaintiff and Respondent, In re J.H., a Person Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Plaintiff and Respondent, v. B.L., et al., Defendants and Appellants.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. 20JD026537)
GREENWOOD, P. J.
In appeal number H050378, B.L. (mother) and J.H. (father) challenge an order terminating their parental rights as to J.H., Jr. (J.H.). Mother and father separately contend that the juvenile court erred in refusing to apply the beneficial parental relationship exception. (Welf. &Inst. Code, § 366.26, subd. (c)(1)(B)(i).) Concluding that the juvenile court did not abuse its discretion in declining to apply the exception, we affirm.
All further unspecified statutory references are to the Welfare and Institutions Code. In addition, because ICWA uses the term "Indian," we do the same for consistency, even though we recognize that other terms, such as "Native American" or "indigenous," are preferred by many." (See In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1.).
In appeal number H050190, ordered considered with the parents' appeal, J.H.'s maternal grandmother, G.M., appeals from an order denying her section 388 petition. G.M. contends that the juvenile court erred when it denied her petition seeking that J.H. be placed in her care. She further contends that the entire matter must be remanded because the Santa Clara County Department of Family and Children's Services (Department) failed to make appropriate inquiries pursuant to the Indian Child Welfare Act (ICWA). We dismiss G.M.'s appeal, concluding that her appeal from the order denying the section 388 petition is moot and that she lacks standing to challenge the order terminating parental rights based on purported violations of ICWA.
I. Factual And Procedural Background
Born in 2020, J.H. was removed from mother's and father's care at birth after his meconium tested positive for exposure to methamphetamine. Mother and father had a long history of substance abuse and J.H. was mother's fourth child to test positive for exposure to illicit substances after birth. J.H. was immediately placed with his adult maternal half sister, J.M., and continued to live with her for the first year of his life.
A. Visitation Between J.H. and His Parents
Because the parents' appeals raise only the issue of the beneficial relationship exception, we omit many of the facts related to their individual progress in their reunification plans as not relevant to our disposition.
1. Both Parents Maintained Regular Visitation
On August 4, 2020, the Department filed a section 300 petition alleging that J.H. needed immediate protection due to mother's chronic, active, and untreated substance abuse and her history of neglecting his siblings, and father's history of substance abuse and involvement in criminal activities. The juvenile court ordered J.H. removed and ordered twice weekly supervised visits for mother and father. After the juvenile court sustained the section 300 petition, it ordered reunification services and continued twice weekly supervised visits for both mother and father.
Pursuant to the juvenile court's orders, both parents visited J.H. consistently throughout the dependency, but neither parent ever moved past supervised visitation with J.H. During this first year, when J.H. lived with J.M., the evidence regarding visitation with mother and father is incomplete, because J.M. supervised visits, but was not forthcoming with information about how often the parents were visiting or how the visits went. After being prompted by the court to provide more information, J.M. admitted to the social worker that the parents were visiting almost daily, in contravention of the court's order allowing two supervised visits per week. Father later confirmed this under oath. When J.M. continued to provide only minimal information about the consistency and quality of the parents' visits, the Department tried to exercise more control over visitation, arranging to have one of the parents' twice weekly visits held at the Department. However, neither parent chose to participate in any visits at the Department.
Mother's account of the year J.H. lived with J.M. was quite different. In contrast to father, mother claimed that when J.H. was an infant, he only stayed with J.M. for about two weeks, and after that he had lived with the mother and father from August 2020 to June 2021, in violation of the court's orders. Mother explained that J.M. was inexperienced in caring for a baby and called mother when J.H. would not stop crying. Mother claimed that initially she stayed the night at J.M.'s house to help take care of J.H., but soon thereafter, she moved the baby to her and father's home.
In August 2021, because of ongoing concerns over J.M. permitting unsupervised contact with J.H., and because J.M. had not taken the requisite steps to become fully approved for placement, the Department removed J.H. from his placement with J.M. and placed him with his paternal aunt, Y.H. Regular visits continued, first supervised by the Department and then father was allowed to have visits supervised by Y.H. Father was briefly granted an additional Saturday visit at Y.H.'s home, but soon began sleeping during these visits instead of interacting with J.H., and the Saturday visits were discontinued. After Y.H. gave birth to a fourth child, father helped to take care of J.H. at the paternal grandmother's home several times per week.
Even after the juvenile court terminated mother's reunification services in October 2021, and the court reduced mother's supervised visits to one time per week, mother regularly attended her weekly visits with J.H., supervised by the Department. She reported missing her son since she was used to seeing him more often.
2. Visitation with Both Parents Was Loving and Appropriate
The evidence about the nature of the visitation between J.H. and the parents during the dependency was consistent. Visits were pleasant, friendly and appropriate and without significant incident. J.H. was excited to see his parents as they had a "fun routine" and he seemed to know "he was getting ready for a good time." According to the Department, mother was loving, present, participated fully, and was attentive to J.H.'s needs. She played with, fed, and soothed J.H. when he got upset. J.H. smiled at mother, had good eye contact with her and appeared to enjoy his visits, often running to hug her and rest his head on her shoulders or hold her hand. The Department characterized their relationship as clearly connected. Mother testified that J.H. referred to her as "Ma" and sometimes cried when she left. However, the Department noted that while J.H. enjoyed spending time with mother, he did not show any signs of distress when separating from her at the conclusion of a visit.
J.H. also had a comfortable and loving relationship with father. Father engaged with J.H. during his visits and assumed "all the responsibility for the child." Father changed J.H.'s diapers, played with J.H., and participated fully. J.H. was reportedly very comfortable and happy to see father, would often reach for him, put his head on father's shoulder and called him "papa." J.H. became happy and excited when he knew that father was going to visit, and sometimes cried when father left in the evenings.
Despite this consistency and notably loving relationship, the Department took the position that neither parent had formed a parental relationship with J.H. because they never provided day to day care for J.H., had not brought him home from the hospital, had not had custody of him, and had never been left alone with him. The Department opined that the connection J.H. shared with his parents was "similar to that of a young child with any caring adult such as a relative or a family friend," and that he readily bonded to each set of caregivers in his life. In fact, even though Y.H. testified that the most significant people in J.H.'s life were his father, mother, and grandmother, she conceded that J.H. appeared to be attached to her husband (J.H.'s uncle), and was also happy to see him, often running to the door to greet him with a hug when he arrived at home.
3. ICWA Investigation
While father reported no Native American ancestry, mother reported that she had Cherokee Nation Indian heritage from the outset of the dependency proceedings. She believed her father was a member of the Cherokee tribe in Oklahoma. Because he had passed away when she was 13 years old, she only knew that his date of birth was either 1930 or 1931, but could not provide an enrollment number, or any other information about him or his relatives. Based on this limited information, the Department sent an informal inquiry via e-mail to the two Cherokee tribes located in Oklahoma: the Cherokee Nation and the United Keetoowah Band of Cherokee Indians. Nothing in the record reveals whether the Department received a response from the Cherokee Nation or the United Keetoowah Band of Cherokee Indians in response to these e-mails.
In a report prepared for the jurisdictional hearing, the Department reported that it had previously sent inquiries to four Cherokee tribes and the Bureau of Indian Affairs (BIA) in January 2015 during the dependency proceeding for J.H.'s maternal half sibling A.A. The Department had received responses from Cherokee Nation and Eastern Band of Cherokee that A.A. was not eligible for enrollment. Based on this information, the juvenile court found, at the dispositional hearing, that the Department had conducted a diligent inquiry into Indian heritage, that there was no reason to know that J.H. was an Indian child and the court concluded that ICWA did not apply.
Two years later, another social worker spoke to mother, G.M., and J.H.'s adult sibling regarding Indian heritage. They reported that J.H.'s maternal great-grandfather was Cherokee and they believed themselves to be part Cherokee. According to G.M., J.H.'s deceased maternal grandfather had Cherokee ancestry and the great-grandfather was Cherokee with an identification number to a Cherokee Tribe. G.M. described how she had received this information from several relatives she named for the social worker, and identified additional relatives who may have had an identification number. G.M. neither knew the exact spelling of their names nor had their identification numbers. All the named relatives were deceased, and she did not know of any other relatives who would have additional information. Based on this new information, the social worker created a four-generation family tree that she sent via e-mail to the Cherokee Nation and United Keetoowah Band of Cherokee Indians, and a letter to Eastern Band of Cherokee Indians. The Cherokee Nation and United Keetoowah Band of Cherokee Indians responded stating neither parent nor child were registered members.
4. G.M.'s Involvement in the Dependency Proceedings
Shortly before the section 366.26 hearing, Y.H. informed the Department that she was no longer able to adopt J.H., although she was willing to keep J.H. until another home could be identified. Both parents told the Department that they would like J.H. to be placed with G.M. G.M. had requested and had been approved for contact with J.H. early in the dependency and had maintained contact with J.H. throughout. After the Y.H. placement failed, G.M. reached out to the Department, requesting placement in her home. She was granted permission to bring J.H. to her home for visits, including extended visits on the weekend, and the Department began evaluating G.M. for placement. The Department was concerned with G.M.'s ability to set boundaries with the parents, and after being unable to complete an immediate assessment for placement, denied the emergency placement. However, the Department referred G.M. for completion of the relative home approval process. Several months after the juvenile court issued the orders challenged in this appeal, the Department placed J.H. with G.M, and he remains in her care.
In conjunction with filing the respondent's brief in case no. H050190, the Department filed a motion to augment the record with (1) a November 22, 2022 Foster Child's Data Record and AFDC-FC Certification, showing that J.H., was placed with G.M. on November 17, 2022; (2) a March 7, 2023 minute order identifying G.M. as J.H.'s caregiver; and (3) a Resource Family Approval Certificate for G.M., dated April 20, 2023. On June 12, 2023, we deemed the motion to be a request for judicial notice and deferred it for consideration with the appeal. The request for judicial notice is granted. (In re Zeth S. (2003) 31 Cal.4th 396, 412; In re F.S. (2016) 243 Cal.App.4th 799, 815, fn. 6 [overruled on a different point in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7].).
B. Section 366.26 Hearing and Order
Having already terminated services for mother in October 2021, the court terminated reunification services for father in February 2022, and set the matter for a section 366.26 hearing. Neither parent filed a writ petition challenging the termination of services.
At the contested hearing, even though a prospective adoptive home had not been identified, the Department asserted that J.H., a two-year old, healthy and developmentally on track child who bonds easily with caregivers, was likely to be adopted. The Department concluded that termination of parental rights would not be detrimental to J.H., and recommended terminating parental rights and selecting adoption as a permanent plan for J.H.
After hearing testimony from Y.H., the social worker, mother, and father, admitting multiple reports into evidence, reviewing the parties' prepared written closing arguments, and hearing rebuttal arguments, the juvenile court recited its decision on the record. The court found, by clear and convincing evidence, that J.H. was likely to be adopted even though J.H. was presently not in a concurrent home. The court stated that that "given J.H.'s many positive characteristics . . . it'll be easy for the Department to find a concurrent home for him." The court then turned to the question of whether the parents had met their burden of establishing the beneficial relationship exception set forth in In re Caden C. (2021) 11 Cal.5th 614 (Caden C.). The court noted that Caden C. required the parents to show, (1) regular visitation and contact; (2) a relationship the continuation of which would benefit the child-i.e., a substantial positive emotional attachment; and (3) a showing that termination of parental rights would be detrimental to the child.
The court found that both parents had shown regular visitation and contact with J.H., and that father had shown a substantial positive emotional attachment, while mother had not. Acknowledging that mother's visits with J.H. were "loving and appropriate," the court found that there was no evidence that J.H. suffered any distress in not being with her, or that he looked to her, missed her, or relied on her. The court concluded that J.H.'s relationship with mother was "similar to that of his relationship with other adults in his life."
Regarding the final prong of Caden C., the court weighed the detriment of severing the parental bond against the benefits of adoption and concluded that neither parent had shown that terminating parental rights would be so detrimental to J.H. as to outweigh the benefits of adoption. The court stated, "one thing that did not change in Caden C. is that the benefits of an adoptive home weigh very heavily in the equation." The court concluded that a new stable home would alleviate any emotional instability J.H. would suffer from losing his parents. The court emphasized that J.H. was only two years old, and not terminating parental rights and freeing him for adoption would leave him vulnerable to instability for the next 16 years. By contrast, the court found that J.H.'s age, the fact that he is healthy, seems to attach well to caregivers, and that he is thriving and stable, suggest that a new adoptive family would be able to assist J.H. in overcoming any detriment that he would suffer from severing the parental relationship. Based on this analysis, the court held that the benefit of an adoptive home outweighed the detriment from terminating parental rights.
C. G.M.'s Section 388 Petition
Three days prior to the contested selection and implementation hearing in midJuly 2022, G.M. filed a section 388 petition asking for placement of J.H. with her. After hearing argument on G.M.'s petition on the first day of the contested hearing, the juvenile court denied the petition and the request for an evidentiary hearing on the petition, finding that G.M. had not made a prima facie showing that placement with her was in J.H.'s best interests at that time.
G.M. filed a timely notice of appeal on July 13, 2022. Parents filed their notices of appeal on September 13, 2022. On March 9, 2023, this court ordered the appeals considered together for disposition and oral argument.
Respondent filed a motion to dismiss the appeal for lack of standing and as moot. On February 21, 2023, we denied the motion without prejudice to raising these issues in briefing.
II. Discussion
A. Parents' Appeals from the Termination of Parental Rights
On appeal both parents contend that the trial court erred in its decision that the beneficial parental relationship exception did not apply. When a juvenile court proceeds to select a permanent placement for a child who cannot be returned to a parent's care, the parent may avoid termination of parental rights by invoking the beneficial relationship exception. To establish this exception, a parent must show, by a preponderance of the evidence, "that the parent has regularly visited with the child, that the child would benefit from continuing the relationship, and that terminating the relationship would be detrimental to the child." (Caden C., supra, 11 Cal.5th at pp. 629-630.) "[This] exception applies in situations where a child cannot be in a parent's custody but where severing the child's relationship with the parent, even when balanced against the benefits of a new adoptive home, would be harmful for the child. While application of the beneficial parental relationship exception rests on a variety of factual determinations properly reviewed for substantial evidence, the ultimate decision that termination would be harmful is subject to review for abuse of discretion." (Id. at p. 630.)
The juvenile court considered the three Caden C. elements and concluded that while father had shown that J.H. would benefit from continuing the relationship with father, mother had not. The court also concluded that neither parent had shown that terminating the parental relationship would be detrimental to J.H. As substantial evidence supports the trial court's factual findings, we perceive no abuse of discretion in the court's decision that termination would not be harmful to J.H.
1. Mother Failed to Show a Substantial Benefit to J.H. from their Relationship
There is no dispute that both parents visited J.H. regularly throughout the dependency, that he knew them well and that he enjoyed the visits. The juvenile court acknowledged as much in its order. However, the court found that the nature of mother's relationship with J.H., while loving and appropriate, was not parental in nature. The court found that it was similar to the relationships J.H. had with other adults in his life. Based on these observations, the court concluded that mother had not established that J.H. would benefit from continuing a relationship with her. This finding is supported by substantial evidence.
To successfully show a beneficial relationship, a parent "must show that the child has a substantial, positive, emotional attachment to the parent-the kind of attachment implying that the child would benefit from continuing the relationship." (Caden C., supra, 11 Cal.5th at p. 636.) Whether continuing a relationship with the parent is in a child's best interest depends on many factors: the age of the child, the portion of the child's life spent in the parent's custody and the effect interaction with the parent has on the child. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) Courts can "consider how children feel about, interact with, look to, or talk about their parents [citations]," and can rely on observations of others who have observed visitation to formulate conclusions. (Caden C., at pp. 632-633.) Here, those who had observed mother's visits with J.H. characterized the relationship as appropriate, affectionate, friendly and fun. The Department described mother as present, participatory and attentive to J.H.'s needs during visits and J.H. appeared to enjoy his visits, often running to hug her and rest his head on her shoulders.
On the other hand, J.H. did not show any signs of distress when separating from mother at the conclusion of a visit, had never lived with mother and their visits never progressed past supervised visitation. Although both parents claimed that they visited more than authorized when J.H. was living with J.M., and mother claimed that J.H. had actually lived with her while placed with J.M., the juvenile court concluded that that mother's uncorroborated claims were not credible. On appeal, we do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.) Instead, we defer to the trial court on such credibility findings. (See In re Marriage of Hill &Dittmer (2011) 202 Cal.App.4th 1046, 1051-1052 ["it is well established that the trial court weighs the evidence and determines issues of credibility and these determinations and assessments are binding and conclusive on the appellate court"].)
Accepting the juvenile court's finding that J.H. never lived with mother, we are left with a record that supports the trial court's finding that the relationship was more a friendly one, rather than parental in nature. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) While there is no definite quantitative measurement of the specific amount of comfort or physical care a parent must provide, the benefit to the child from the relationship must be parental in nature rather than that of a friend. (Ibid.; see also In re Brandon C. (1999) 71 Cal.App.4th 1530, 1538.) By all accounts, mother's relationship with J.H. did not meet this threshold. The juvenile court did not err in finding that their relationship did not provide the type of benefit to J.H. necessary to establish the exception.
2. Terminating the Parental Relationship Would Not be Detrimental to J.H.
The juvenile court found that, unlike mother, father had shown a substantial beneficial relationship with J.H. However, as to the final element of the Caden C. analysis, the court concluded that severing the parental relationship with father would not be detrimental to J.H., but instead would be in his best interest. Based on the record in this case, we find no abuse of discretion.
In assessing whether termination would be detrimental to the child, a court must decide whether the harm from severing the parental relationship outweighs the benefit to the child of placement in a new adoptive home. "By making this decision, the trial court determines whether terminating parental rights serves the child's best interests." (Caden C., supra, 11 Cal.5th at pp. 631-632.) Some of the impacts on the child a court may consider are emotional instability and preoccupation with the parent leading to acting out, difficulties in school, insomnia, anxiety, or depression. But a court may also evaluate whether "a new, stable home may alleviate the emotional instability and preoccupation leading to such problems, providing a new source of stability that could make the loss of a parent not, at least on balance, detrimental." (Caden C., at p. 633.)" 'If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that,' even considering the benefits of a new adoptive home, termination would 'harm[ ]' the child, the court should not terminate parental rights.... When the relationship with a parent is so important to the child that the security and stability of a new home wouldn't outweigh its loss, termination would be 'detrimental to the child due to' the child's beneficial relationship with a parent. [citation.]" (Id. at pp. 633-634.)
The court here found that J.H.'s young age, good health, stability and strong attachment to caregivers supported a conclusion that a new adoptive family would be able to assist him in overcoming any detriment that he would suffer from severing the relationship with his father. On the other hand, the court found that, "[n]ot terminating parental rights and freeing him for adoption in effect condemns him to instability for the next 16 years."
Father contends that the court abused its discretion in weighing the detriment to J.H. from losing father against the benefits of being adopted. Father argues that any benefit from an adoptive family was purely speculative because at the time of the hearing, no adoptive family had been identified. The statute, however, only requires that the court find the child adoptable, not that an adoptive home be identified. (§ 366.26, subd. (c)(1); In re David H. (1995) 33 Cal.App.4th 368, 379 [existence or nonexistence of a prospective adoptive parent not determinative]; In re Jennilee T. (1992) 3 Cal.App.4th 212, 223 [not necessary pursuant to section 366.26, subd. (c)(1) that child be in a potential adoptive home at the time of the termination hearing].) The court did find J.H. adoptable as required by the statute.
We note that based on the records of which we take judicial notice, J.H. does appear to be placed in a prospective adoptive home with G.M. at this time. (See fn. 3, ante.).
Consistent with Caden C., the court recognized the positive loving relationship between father and J.H., but concluded that the stability of an adoptive family outweighed any detriment this young healthy child would experience from losing the relationship with father. Father argues that given J.H.'s consistent placement with, and reliance on family members, losing his relationship with father would cause more harm than any benefit J.H. would receive from a prospective adoptive home. Yet, father fails to identify any specific detriment to J.H. from severing the relationship. Even though J.H. was sometimes sad when visitation ended, there was no evidence that J.H. suffered during father's absence, that he had emotional instability and preoccupation with father, or that he acted out, had insomnia, anxiety or depression. Nor is there anything in the record to suggest that J.H. relied on either parent for his emotional wellbeing and security. In fact, J.H. has lived his entire life with caregivers other than his parents, and the record is clear that he had readily bonded with them, displayed similar types of affection towards them, and relied on them for his daily needs. There is no evidence that the relationship with father was so important in J.H.'s life, or so outsized the other relationships in his life, that its loss would cause irreparable harm. The court correctly concluded that, given J.H.'s young age and ability to bond with others, any detriment from losing the relationship with father, consistent and loving as it had been, would subside with the assistance of a loving adoptive family.
We find no error in the juvenile court's decision that the beneficial parental relationship exception did not apply here to preclude the termination of parental rights.
B. G.M.'s Appeal from the Order Denying her Section 388 Petition
1. G.M. Lacks Standing to Assert an ICWA Violation
G.M. first argues that the Department and the court failed to comply with the ICWA's notice provisions because the Department did not send "formal notice." The Department correctly contends that G.M. lacks standing to raise this issue.
Pursuant to ICWA, "[a]ny Indian child who is the subject of any action for foster care placement or termination of parental rights under state law, any parent or Indian custodian from whose custody such child was removed, and the Indian child's tribe may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of sections 1911, 1912, and 1913. of this title." (25 U.S.C. § 1914, italics added.)
ICWA defines a "parent" as "any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child...." (25 U.S.C. § 1903(9).) By contrast, a "grandparent" is defined as an "extended family member," not as a parent. (25 U.S.C. § 1903(2).) California's legislation implementing ICWA adopts these provisions without change. Section 224, subdivision (e) restates the federal standing provision (25 U.S.C. § 1914) in substantively identical terms. Section 224.1, subdivisions (a) and (c) state that the terms "parent," "Indian custodian," and "extended family member" shall be defined as in the federal law. (25 U.S.C. § 1903.) Therefore, "under the plain terms of federal and state law, a grandparent . . . lacks standing to bring an ICWA challenge unless he or she qualifies as an 'Indian custodian.'" (In re Michael A. (2012) 209 Cal.App.4th 661, 665.)
As in In re Michael A., G.M. does not address the standing issue in her opening brief. Instead in her reply brief, G.M. contends, for the first time, that as an "Indian custodian," she has standing to challenge the ICWA findings. She argues that she qualifies as an Indian custodian "because she claims heritage on her side of the family and has been granted placement of the child by the juvenile court" ICWA defines an" 'Indian custodian'" as "any Indian person who has legal custody of an Indian child under tribal law or custom or under State law or to whom temporary physical care, custody, and control has been transferred by the parent of such child." (25 U.S.C. § 1903(6).) An" 'Indian person'" is "any person who is a member of an Indian tribe, or who is an Alaska Native and a member of a Regional Corporation as defined in section 1606 of title 43." (25 U.S.C. § 1903(3).) Neither the facts, nor the law support G.M.'s contention that she is an Indian custodian.
While both mother and G.M. claimed Indian heritage, the Department reported that neither could provide crucial basic information needed to conclusively confirm this heritage. They could not provide many dates of birth or death or tribal identification numbers for family members they thought were eligible for membership and could not identify a living family member with this information. All the family members they thought were eligible, or may have had additional information, were deceased, or unable or unwilling to provide further information. (See In re S.M. (2004) 118 Cal.App.4th 1108, 1117 [investigation of and identification of aliases, birthdates, birthplaces, places of death of deceased relatives, former addresses, woman's married or maiden name required in notices to tribes by 25 C.F.R. § 23.11].) With the information provided, the Department spoke to numerous family members to gather additional information and created a four-generation family tree, including G.M., and provided it to several tribes. The tribes responded that the child was not an Indian child and was not eligible for membership. Based on the record before us, G.M.'s Indian heritage is unconfirmed family lore. (See In re J.L. (2017) 10 Cal.App.5th 913, 923; In re Hunter W. (2011) 200 Cal.App.4th 1454, 1469.)
Even if G.M. had provided information sufficient to establish Indian heritage, heritage alone is not sufficient to qualify her as an "Indian person." Under ICWA, to qualify as an Indian person, she would have to show that she is "a member" of an Indian tribe, an Alaska Native or a member of a Regional Corporation. (25 U.S.C. § 1903(3); see In re Austin J. (2020) 47 Cal.App.5th 870, 888 [superseded by statute on another point as stated in: 85 Cal.App. 5th 123 p.147].) Nothing in her brief or the record before us shows that G.M. is a member of an Indian tribe, an Alaskan Native, or a member of a Regional Corporation. As she is not an Indian person, she cannot be an Indian custodian.
G.M. also argues that she has "standing to raise the defect in ICWA inquiry and/or notice pre-placement under section 1915[](a) of title 25 of the United States Code that gives her a placement consideration and makes her an aggrieved party when this placement is denied." As G.M. recognizes in her reply brief, the section 1915(a) placement consideration is triggered only when a child is determined to be an Indian child. The question is not whether she would be aggrieved in the unlikely event J.H. were to be found an Indian child, but whether she has standing to raise an ICWA error in an appeal from the denial of her section 388 petition. Confronted with a similar argument, the court in In re Michael A. found that, "Whether she would have such preference if the [child] were found to be [an] Indian child[] is irrelevant to whether she has standing to claim the ICWA error." (In re Michael A., supra, 209 Cal.App.4th at p. 666.) For all the above reasons, G.M. lacks standing to raise an ICWA claim under the plain terms of federal and state law. (Ibid.) Because appellant lacks standing to raise any claim of an ICWA error, we do not reach the merits of her claims.
"In any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with [¶] (1) a member of the child's extended family; [¶] (2) other members of the Indian child's tribe; or [¶] (3) other Indian families." (25 U.S.C. § 1915(a).).
We note that neither parent challenges the juvenile court's ICWA findings or the sufficiency of the Department's ICWA investigation or notices. (See In re S.M., supra, 118 Cal.App.4th at pp. 1114-1115.).
2. G.M.'s Section 388 Claim is Moot
G.M. also challenges the trial court's order denying her section 388 petition, arguing that the trial court erred in failing to apply the relative placement preference under section 361.3. After J.H.'s placement failed, G.M. requested that the Department place J.H. with her, and the parents supported the request. The Department argues that G.M.'s appeal is moot because J.H. has subsequently been placed with G.M.
G.M.'s 388 petition requested placement of J.H. in her care. The postjudgment records, of which we have taken judicial notice and are properly before the court, show that four months after G.M. filed her notice of appeal, J.H. was placed in her custody and continued to live with her as of March of this year. Due to the dynamic and changing nature of juvenile dependency proceedings "it is not uncommon for an appellate court to take judicial notice of subsequent proceedings in the juvenile court and find the appeal has been rendered moot." (In re Karen G., supra, 121 Cal.App.4th at p. 1390.) Even if we agreed with G.M. that the juvenile court erred in denying her petition, we could not grant relief. In light of the subsequent orders placing J.H. with G.M., the requested relief is no longer necessary. (Ibid.)
We recognize the Supreme Court has stated postjudgment evidence may not, except in extraordinary circumstances, be used as a basis to reverse a termination of parental rights on appeal. (In re Zeth S., supra, 31 Cal.4th at pp. 413-414.) However, because G.M.'s appeal is not from an order terminating parental rights, we are not reversing, and the evidence is the proper subject of judicial notice (court records, not unsworn statements of counsel), taking judicial notice here is not prohibited by In re Zeth S. (See In re Karen G. (2004) 121 Cal.App.4th 1384, 1390; see also Evid. Code, §§ 452 & 459.).
G.M. invites us to consider the section 361.3 relative preference placement issues presented by her appeal, contending that they are of substantial and continuing public interest and are capable of repetition, yet evade review. (Amgen Inc. v. California Correctional Health Care Services (2020) 47 Cal.App.5th 716, 728.) Even if G.M. had provided support for the contention that this is a substantial issue of continuing public interest that evades review, and we were persuaded, this case would not be an appropriate vehicle to address these issues. J.H. was placed with relatives during the entire dependency and was with relatives when G.M. filed her section 388 petition. Even though Y.H. was no longer willing to adopt J.H., J.H. continued to live with Y.H. and, from the record before us, was not at risk of being placed with a nonrelative. We, therefore, respectfully, decline to consider the moot issues raised, and will dismiss the appeal.
III. Disposition
G.M.'s appeal in H050190 from the order denying the section 388 petition is dismissed as moot. The order terminating parental rights is affirmed.
WE CONCUR: Grover, J., Bromberg, J.