Filed 2/5/16 Melissa G. v. Superior Court CA4/1

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



MELISSA G.,                                                      D069084

         Petitioner,
                                                                 (San Diego County
         v.                                                      Super. Ct. No. EJ3872)

THE SUPERIOR COURT OF SAN
DIEGO COUNTY,

         Respondent;


SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY et al.,

         Real Parties in Interest.



         PROCEEDINGS in mandate after referral to a Welfare and Institutions Code

section 366.26 hearing.1 Gary M. Bubis, Judge. Petition denied.



1     All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
       Dependency Legal Group of San Diego and John P. McCurley for Petitioner.

       No appearance by Respondent.

       Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel, and Paula J. Roach, Deputy County Counsel, for Real Party in Interest San

Diego County Health and Human Services Agency.

       Melissa G. seeks review of a juvenile court order setting a hearing under section

366.26 with respect to her minor son, William K.2 She contends the San Diego County

Health and Human Services Agency (the Agency) did not comply with the Indian Child

Welfare Act (ICWA) because it failed to respond to a tribe's request for additional

information. She challenges the juvenile court's finding that ICWA did not apply and

seeks a limited remand for purposes of ICWA compliance. The Agency argues the

petition is moot, because a subsequent hearing reflected there was no additional

information to provide. We find the record supports the Agency's position, deem the

premature ICWA finding harmless, and deny the petition as moot.

                  FACTUAL AND PROCEDURAL BACKGROUND3

       William was born in January 2015. Shortly thereafter, the Agency filed a petition

on his behalf under section 300, subdivision (b) due to substance abuse by Melissa and

the alleged fathers.


2     Melissa also sought a stay of the section 366.26 hearing, which we denied on
December 7, 2015. She does not raise any other issues in her writ petition. Neither
William nor the alleged fathers join the petition.

3      We limit the facts here to those relevant to Melissa's petition.

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       According to the detention report, Melissa indicated the maternal grandmother,

Linda M., would have information about possible Native American heritage. Linda told

the social worker her father, Harold M., was "linked to the Cherokee tribe" through his

father, George M., and provided information regarding dates of birth, death, and places of

residence. Melissa also submitted form ICWA-20 (Parental Notification of Indian

Status), on which she indicated she had "possible Cherokee" ancestry. In February 2015,

the Agency sent ICWA notices on form ICWA-030 (Notice of Child Custody Proceeding

for Indian Child) to, among others, the Cherokee Nation, Eastern Band of Cherokee

Indians, and United Keetoowah Band of Cherokee. The form identified Linda, Harold,

and George, as well as others, including Ruby M. and Mary M.

       In its March 2015 addendum report and September 2015 status review report, the

Agency identified and attached responses from the Cherokee tribes. The Eastern Band of

Cherokee Indians and United Keetoowah Band of Cherokee each indicated William was

not eligible for membership and they would not intervene. The Cherokee Nation

(hereafter, the tribe or Cherokee Nation) wrote to the Agency on March 30, 2015,

indicating the information was not complete and requesting George's middle name and

date of birth and Mary's maiden name, middle name, and date of birth, as well "dates of

birth for everyone involved, their relationship to the child . . . , and maiden names of all

females listed." The letter requested a written response with any and all additional

information and also required the Agency to respond if it was unable to find additional

information. On April 30, 2015, the tribe sent the Agency another letter indicating it had

not received a response and was closing its inquiry.

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         At the initial six-month review hearing in September 2015, county counsel noted

"I don't believe we have addressed ICWA." The juvenile court stated "Oh, the [ICWA]

does not apply, I have a note to make that finding." The court held a contested six-month

review hearing in October 2015, at which it set a permanent plan selection hearing under

section 366.26 for February 2016. Melissa filed a notice of intent to file a writ petition.

         In November 2015, the juvenile court held a special hearing regarding the ICWA.4

Her counsel expressed concern about the tribe's letters, noting the March 30 letter sought

"information about the maternal great-grandfather" and the April 30 letter indicated the

Agency never responded with that information. She requested the court vacate its ICWA

finding and that the Agency respond, "even if the response is that they don't have that

info."

         County counsel objected to the finding being vacated, maintaining it was

"mother's prerogative" to provide the information, but indicating the social worker

nevertheless called the maternal grandmother. She now stated Indian heritage did not

flow through George, but rather through Ruby. County counsel also indicated she had

"none of those people's date[s] of births." She then noted "There is, however, a new

name. The mother of Ruby -- her name is [M.S.]. The Agency is happy to let the

Cherokee Nation know that we have a new name . . . . But we have no new dates of birth

unless the mother is going to provide them to us today." The Agency confirmed it did



4    The Agency provided the transcript of the November 2015 hearing in a motion to
augment the record. We grant that motion, for the reasons discussed post.

                                              4
not have access to George's middle name and date of birth or Mary's maiden name,

middle name, and date of birth.

       The juvenile court then inquired: "Because the mother is not giving that to you?

Do you have the information?" - apparently directing the latter question to Melissa's

counsel. Melissa's counsel responded, in relevant part: "No. The mother is not

withholding the information. My understanding is she filled out the [ICWA-] 030. I

didn't fill it out with her. I don't have access to that form. The timing of this was

brought . . . to help everyone because at the writ level it will be filed. We thought this

was the more practical approach . . . ." The court stated "[b]ecause you don't have that

information, you can't provide that. Whatever information you have and that's been

supplied to you, provide to the Nation . . . . I'm going to affirm my finding, but please

follow up at the next hearing as to any results. Obviously, if you get more information or

they're claiming that he's an Indian child, set it for a special right away." County counsel

asked that Melissa's counsel and Melissa provide any additional information as soon as

possible and indicated "[o]therwise, we'll go on the information we have now, and we

will respond to the tribe."

       Melissa proceeded to file her writ petition in December 2015.

                                       DISCUSSION

                                   A. Appellate Motions

       Melissa requests we take judicial notice of eligibility criteria for the Cherokee

Nation. Because those criteria are not relevant to our resolution of her petition, we deny

her request. (See American Cemwood v. American Home Assurance Co. (2001) 87

                                              5
Cal.App.4th 431, 441, fn. 7 [" 'Although a court may judicially notice a variety of

matters . . . , only relevant material may be noticed.' "].)

       The Agency moves to augment the record to include the November 2015 hearing

transcript and, because its motion is untimely, for relief. We find the hearing transcript

suitable for augmentation; it is relevant, was before the juvenile court, and pertains to

ICWA compliance, rather than the merits of the dependency proceeding. (See, e.g.,

Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 866-867 (Alicia B.) [permitting

augmentation of the record with ICWA notices not filed in the juvenile court until the

writ proceeding, where, among other things, they were relevant and appellant was

challenging ICWA notice, not termination of parental rights]; In re A.B. (2008) 164

Cal.App.4th 832, 841, 843 (A.B.) [permitting augmentation for an ICWA form from a

separate dependency proceeding, noting the ICWA issue was "distinct from the

substantive merits"]; cf. In re Zeth S. (2003) 31 Cal.4th 396, 400 [a reviewing court

generally may not "receive and consider postjudgment evidence that was never before the

juvenile court, and rely on such evidence" to reverse a judgment terminating parental

rights].)

       The Agency acknowledges its request is untimely. (California Rules of Court, rule

8.452(e)(2), (5).)5 However, it explains this delay was due to preparation of the

reporter's transcript for the November 2015 hearing, contending county counsel



5      All further rule references are to the California Rules of Court unless otherwise
indicated.

                                               6
"immediately requested" the transcript, but did not receive it until December 29.6 It

appears the Agency's response itself was also late, as it secured an extension until

December 24, but then filed its response on December 31 (followed by the motion on

January 4). Nevertheless, assuming the Agency received the transcript on December 29,

there was nothing dilatory in filing the response and motion shortly thereafter. We have

discretion under rule 8.450(d), to extend time under rule 8.452 for "an exceptional

showing of good cause" and we find the Agency has established good cause. (Rules

8.450, 8.452; cf. A.B., supra, 164 Cal.App.4th at p. 840 [granting extension for

augmentation in juvenile appeal proceeding under rule 8.416(f), on showing of good

cause].) There also is no prejudice to Melissa; her trial counsel was present at the

November hearing and she had an opportunity to respond to the motion to augment,

although she did not do so. (See A.B., at p. 840.)

       Further, we find that denying the leave request and, in turn, the motion to

augment, "would be counterproductive to 'the state's strong interest in the expeditiousness

and finality of juvenile court dependency proceedings.' " (Alicia B., supra, 116

Cal.App.4th at p. 867; see In re Louis S. (2004) 117 Cal.App.4th 622, 630, fn. 4 (Louis

S.) ["Granting Agency's request to augment the record avoids further delay.]; A.B., supra,

6       The Agency provides no evidence in its motion to support these assertions.
However, we note it earlier sought additional time to file its response, due to the delay in
transcript preparation; that request was made under penalty of perjury by county counsel
and was executed in California, thus operating as the functional equivalent of a
declaration. (Cf. Code of Civ. Proc., § 2015.5; Kulshrestha v. First Union Commercial
Corp. (2004) 33 Cal.4th 601, 606 [explaining § 2015.5 "defines a 'declaration' as a
writing that is signed, dated, and certified as true under penalty of perjury," as well as
either reflecting execution in California or referencing California law].)

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164 Cal.App.4th at p. 841 ["[A]dmission of the evidence . . . would . . . prevent further

delay."].) Accordingly, we grant the Agency's requests.

                               B. Background on the ICWA

       Congress enacted the ICWA "to protect the best interests of Indian children and to

promote the stability and security of Indian tribes and families by the establishment of

minimum Federal standards for the removal of Indian children from their families and the

placement of such children in foster or adoptive homes which will reflect the unique

values of Indian culture . . . ." (25 U.S.C. § 1902; In re Kahlen W. (1991) 233

Cal.App.3d 1414, 1421.) "[T]o be an Indian child, a child must be either (1) a member of

an Indian tribe, or (2) both eligible for membership in an Indian tribe and the biological

child of a member of an Indian tribe. (25 U.S.C. § 1903(4).)" (In re S.B. (2005) 130

Cal.App.4th 1148, 1162, italics omitted.) In proceedings where the court knows or has

reason to know an Indian child is involved, the Agency must notify the affected Indian

tribes about the proceedings and of their right to intervene. (25 U.S.C. § 1912(a); see In

re Gerardo A. (2004) 119 Cal.App.4th 988, 994; see also § 224.2, subds. (a), (b).) "The

notice sent to the . . . Indian tribes must contain enough information to be meaningful.

[Citation.] To enable a court to review whether sufficient information was supplied, [the

Agency] must file with the court the ICWA notice, return receipts, and responses

received from the . . . tribes." (Alicia B., supra, 116 Cal.App.4th at p. 865.) "Juvenile

courts and child protective agencies have ' "an affirmative and continuing duty" ' to

inquire whether a dependent child is or may be an Indian child." (In re Kadence P.

(2015) 241 Cal.App.4th 1376, 1386 (Kadence P.); § 224.3, subd. (a).)

                                             8
       "We review the trial court's findings whether proper notice was given under

ICWA and whether ICWA applies to the proceedings for substantial evidence." (In re

D.N. (2013) 218 Cal.App.4th 1246, 1251 (D.N.).) ICWA notice and inquiry deficiencies

may be deemed harmless under certain circumstances. (See, e.g., ibid. [noting harmless

error may exist "when, even if proper notice had been given, the child would not have

been found to be an Indian child"]; In re Miracle M. (2008) 160 Cal.App.4th 834, 847

(Miracle M.) [finding harmless error where parent did not explain how "reversing the

court's orders as to (the minor) would produce any additional information that this child

is an Indian child"].) "Reversal is not warranted . . . when the court's noncompliance with

the [ICWA] inquiry requirement constitutes harmless error." (A.B., supra, 164

Cal.App.4th at p. 839; see also In re C.D. (2003) 110 Cal.App.4th 214, 226 ["[W]e find

(the agency) complied with the notice requirements of the ICWA while this appeal was

pending, and we will not reverse the dispositional order on that basis."].)

                                         C. Analysis

       Melissa contends the juvenile court's September 2015 ICWA finding must be

reversed because the Agency did not comply with ICWA based on its failure to respond

to the tribe's request for additional information.

       The record reflects no response by the Agency and the Agency does not contend it

provided one. The ICWA's purpose of "promot[ing] the stability and security of Indian

tribes" is "not promoted when the Agency does not respond to a tribe's request for

information." (In re S.M. (2004) 118 Cal.App.4th 1108, 1117.) In declining to respond

to the tribe, the Agency neglected its continuing obligations under the ICWA. (Kadence

                                              9
P., supra, 241 Cal.App.4th at p. 1386; In re A.G. (2012) 204 Cal.App.4th 1390, 1397

(A.G); § 224.3, subd (a).) At the time of the juvenile court's September ICWA ruling, the

Agency also had not provided any indication it even looked into the tribe's questions.

(See Louis S., supra, 117 Cal.App.4th at p. 630 ["The burden is on the Agency to obtain

all possible information about the minor's potential Indian background and provide that

information to the relevant tribe . . . ."]; see also A.G., at p. 1397 [finding agency

erroneously failed to follow up with a father who reported Native American heritage and

indicated he was gathering more information, or with other family members, and noting

the agency's "continuing duty of inquiry"].) Given these deficiencies in the Agency's

efforts, the September ICWA ruling was not supported by substantial evidence.7

       However, the ruling was harmless. (D.N., supra, 218 Cal.App.4th at p. 1251.) It

was the maternal grandmother who initially indicated that Cherokee heritage flowed

through George, leading the Agency to send the Cherokee Nation an ICWA notice

identifying George and others. The tribe's information request encompassed George's

middle name and birth date, Mary's maiden name, middle name, and birth date, and birth

dates for everyone involved (along with relationships to the minor and maiden names for

the women). When the social worker followed up with the maternal grandmother, she no

longer claimed heritage flowed through George, arguably rendering that portion of the

follow-up request moot (and neither county counsel nor Melissa's counsel had that


7     It is unclear why Melissa's trial counsel did not point out the Agency's failure to
respond until the November hearing. Had she raised this issue at the September hearing,
she might have avoided the premature ICWA finding and this writ proceeding.

                                              10
information, regardless). As for the other inquiries, although counsels' statements at the

November hearing could have been clearer, they reflect that neither the Agency, nor

Melissa, had the requested information. Even if the Agency had responded to the tribe

then, doing so could not have established Cherokee Nation eligibility. (See D.N., supra,

218 Cal.App.4th at p. 1251; Miracle M., supra, 160 Cal.App.4th at p. 847.)

       Finally, we agree Melissa's writ petition is moot. The question of mootness must

be decided on a case-by-case basis, and we find appropriate circumstances exist here.

(See In re Angela R. (1989) 212 Cal.App.3d 257, 264.) By the time the court affirmed its

ICWA finding in November, there was substantial evidence to support it. Reversal and

remand so the Agency can inform the tribe it has no further information "would serve no

purpose other than delay." (A.B., supra, 164 Cal.App.4th at p. 843; see also In re Shane

G. (2008) 166 Cal.App.4th 1532, 1539 ["Where, as here, the record is devoid of any

evidence a child is an Indian child, reversing . . . for the sole purpose of sending notice to

the tribe would serve only to delay . . . ."].)

       We note our ruling is limited to the specific issue raised by the petition and

reiterate the importance and continuing nature of ICWA's notice and inquiry

requirements. The Agency represented at the November hearing that it would respond to

the tribe with the information it had and, separately, would be happy to let the tribe know

it had a new name. We expect the Agency has already provided this information or, if it

has not, will do so promptly and prior to the section 366.26 hearing.




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                                     DISPOSITION

      The petition is denied. This denial is without prejudice to petitioner's bringing any

new information relevant to ICWA compliance to the juvenile court's attention at the

section 366.26 hearing.



                                                                           HUFFMAN, J.

WE CONCUR:


McCONNELL, P. J.


IRION, J.




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