Filed 2/24/14 In re Carla H. CA4/3

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


In re CARLA H., a Person Coming Under
the Juvenile Court Law.

ORANGE COUNTY SOCIAL SERVICES
AGENCY,
                                                                       G048744
     Plaintiff and Respondent,
                                                                       (Super. Ct. No. DP023244)
         v.
                                                                       OPINION
JEFFREY H.,

     Defendant and Appellant.


                   Appeal from orders of the Superior Court of Orange County,
Deborah C. Servino, Judge. Dismissed as moot. Motion to take additional evidence.
Granted. Motion to augment record on appeal. Granted. Motion to dismiss. Granted.
                   Pamela Rae Tripp, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Nicholas S. Chrisos, County Counsel, and Karen L. Christensen, Deputy
County Counsel, for Plaintiff and Respondent.
                   No appearance for Minor.
                                             *               *               *
                                           INTRODUCTION
                 Initially, notice to the relevant Native American tribes was not provided in
this case under the dictates of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C.
§ 1901 et seq.), and the child’s father appeals from the orders entered at the selection and
implementation hearing on that ground. After this appeal was filed, however, the Orange
County Social Services Agency (SSA) reinitiated the process of providing ICWA notice.
The relevant Native American tribes have now advised SSA that the child involved in
this dependency proceeding is not an Indian child for purposes of ICWA. The juvenile
court’s finding that ICWA does not apply in this case is supported by substantial
evidence. The appeal must be dismissed as moot.
                      STATEMENT OF FACTS AND PROCEDURAL HISTORY
                 Carla H., then six years old, was taken into protective custody after she was
found with her parents in a park. The family had been living on the streets, in various
hotels, and in a tent along a freeway. Carla was placed with a foster family. At the first
jurisdictional hearing, Carla’s father, Jeffrey H. (father), stated on the parental
notification of Indian status form that “[o]ne or more of my parents, grandparents, or
other lineal ancestors is or was a member of a federally recognized tribe.” Father stated
that the tribe with which his family was affiliated was the Cherokee, and he provided the
juvenile court with his mother’s name and birthdate.
                 The court inquired of father as follows:
                 “The Court: Mr. H[.], it says here that you believe that you maybe have
some Cherokee Native American heritage. Is that correct?
                 “The father: Yes, I do.
                 “The Court: And you believe that that’s from your mother?
                 “The father: Yes.
                 “The Court: Okay. And do you know if she was a member on the rol[l]s
of any tribes?

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              “The father: I believe so. I’m not a hundred percent positive, but, yeah.
              “The Court: Do you know which one?
              “The father: Cherokee tribe. It’s back in Wisconsin[.]
              “The Court: And you provided her name and date of birth, I see. Is there
anybody else that may have some information on that, your Native American heritage?
              “The father: Yeah, my father. I will have to contact him also.
              “The Court: Okay. And what is his first name?
              “The father: William H[.]
              “The Court: Do you have contact information for him?
              “The father: Not offhand.
              “The mother: I’ll have to get it for him.
              “The Court: All right, the court is going to find that ICWA may apply and
orders the agency to make further inquiry and investigation.”
              ICWA notices were sent by SSA to the Secretary of the Interior, the
Sacramento Area Director of the Bureau of Indian Affairs (BIA), the Cherokee Nation of
Oklahoma, the Eastern Band of Cherokee Indians, and the United Keetoowah Band of
Cherokee Indians. The names and birthdates of father’s parents and grandparents were
not included in the notices, however; the boxes where this information should have been
placed were marked “Unknown.” Regarding the ICWA notices, SSA’s addendum report
incorrectly stated: “At Court on December 12, 2012, the child’s father . . . claimed
Cherokee Indian ancestry in his family of origin. The only information that the child’s
father provided to Court in regards to his American Indian ancestry was his father’s
name. No further information provided. [¶] . . . [¶] SSA has spoken to the child’s family
in regards to ICWA. SSA has been provided with all information that the family was
able to or willing to provide at this time.”
              On January 3, 2013, the United Keetoowah Band of Cherokee Indians in
Oklahoma advised SSA that a search of the tribe’s enrollment records did not uncover

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evidence that Carla was a descendant of anyone on the tribal roll. The tribe therefore
declined to intervene in the case.
              All of the parties signed a stipulation on January 23, 2013, which read, in
relevant part: “ICWA documentation has been filed with the court. Notice of hearing
was given to the BIA and all appropriate tribe(s) in accordance with ICWA.” The court
adopted that finding on the record. On January 30, the court sustained the allegations of
an amended juvenile dependency petition.
              On March 6, 2013, SSA submitted to the juvenile court a letter it had
received from the Eastern Band of Cherokee Indians, stating that Carla was not
considered an Indian child. The letter noted: “This determination is based on the
information exactly as provided by you. Any incorrect or omitted family documentation
could invalidate this determination.”
              At the disposition hearing, the court declared Carla to be a dependent child
of the juvenile court, and denied reunification services to both Carla’s mother and father,
pursuant to Welfare and Institutions Code section 361.5.
              At the Welfare and Institutions Code section 366.26 hearing in July 2013,
the juvenile court found that ICWA did not apply, Carla was likely to be adopted, and no
statutory exception to the termination of parental rights existed; the court therefore
terminated the parental rights of both Carla’s mother and father. Father filed a timely
notice of appeal.
              In October 2013 (after father’s opening brief was filed), SSA reinitiated the
process of providing ICWA notice. SSA sent new ICWA notices to the BIA, the
Secretary of the Interior, the Cherokee Nation of Oklahoma, the Eastern Band of
Cherokee Indians, and the United Keetoowah Band of Cherokee Indians in Oklahoma,
with the correct information regarding Carla’s paternal grandmother’s name, and the
dates and places of her birth and death. Each of the tribes responded to SSA that Carla
was not eligible for membership, and advised SSA that it would not intervene in the

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dependency proceedings. At a progress review hearing in December 2013, based on the
tribes’ responses, the juvenile court found that ICWA did not apply, and adopted SSA’s
recommendation that all prior orders (including the order terminating parental rights)
remain in full force and effect.1 The juvenile court scheduled a further periodic review
hearing.
                                        DISCUSSION
              Father argues, and SSA concedes, that, initially, proper ICWA notice was
not given. If the juvenile court “knows or has reason to know that an Indian child is
involved” in a dependency proceeding, notice of the proceedings and the right to
intervene must be given to the appropriate tribe or tribes or federal agency. (25 U.S.C.
§ 1912(a).) The juvenile court and SSA have an “affirmative and continuing duty to
inquire whether a child is or may be an Indian child” in all proceedings under Welfare
and Institutions Code section 300. (Cal. Rules of Court, rule 5.481(a).) “To satisfy the
notice provisions of [ICWA] and to provide a proper record for the juvenile court and
appellate courts, [the social services agency] should follow a two-step procedure. First, it
should identify any possible tribal affiliations and send proper notice to those entities,
return receipt requested. [Citation.] Second, [the social services agency] should provide
to the juvenile court a copy of the notice sent and the return receipt, as well as any
correspondence received from the Indian entity relevant to the minor’s status. If the
identity or location of the tribe cannot be determined, the same procedure should be used
with respect to the notice to BIA.” (In re Marinna J. (2001) 90 Cal.App.4th 731, 739,
fn. 4.)


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          SSA filed a motion to dismiss the appeal as moot; SSA also filed a motion to
take additional evidence and to augment the record on appeal, attaching the documents
relating to the new ICWA notices, the tribes’ responses, SSA’s interim review reports,
and the juvenile court’s minute orders in which it found ICWA did not apply. Father did
not oppose SSA’s motions. We grant the motion to dismiss the appeal, and the motion to
take additional evidence and to augment the record on appeal.

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             The name and birthdate of Carla’s paternal grandmother were provided to
the juvenile court, as was Carla’s paternal grandfather’s full name. None of that
information, however, was provided on the initial ICWA notices. The initial ICWA
notices were therefore deficient. (In re Mary G. (2007) 151 Cal.App.4th 184, 209.)
Reversal would be required. (In re Justin S. (2007) 150 Cal.App.4th 1426, 1429.)
             However, SSA rectified its initial error when it sent the new ICWA notices
in October 2013. By failing to oppose SSA’s motion to dismiss the appeal as moot,
father concedes the new ICWA notices were proper and the juvenile court’s finding that
ICWA does not apply in this case (made at the December 2013 progress review hearing)
was supported by substantial evidence. We conclude the appeal, which was based solely
on SSA’s earlier failure to comply with ICWA, must be dismissed, as the requirements of
ICWA have now been fulfilled.
                                      DISPOSITION
             The appeal is dismissed as moot.




                                                FYBEL, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



IKOLA, J.




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