Filed 3/14/16 A.D. v. Superior Court CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA


A.D.,                                                            D069383

         Petitioner,                                             (San Diego County
                                                                 Super. Ct. No. EJ2988B)
         v.

THE SUPERIOR COURT OF SAN
DIEGO COUNTY,

         Respondent;


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

         Real Parties in Interest.


         PROCEEDINGS for extraordinary relief after reference to a Welfare and

Institutions Code1 section 366.26 hearing. Edlene C. McKenzie, Commissioner. Petition

dismissed; request for stay denied.




1      All statutory references are to the Welfare and Institutions Code unless otherwise
specified.
       Dependency Legal Group of San Diego and Amanda J. Gonzales for Petitioner.

       No appearance by Respondent.

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

Counsel, and Lisa M. Maldonado, Deputy County Counsel, for Real Party in Interest San

Diego County Health and Human Services Agency.

       Dependency Legal Group of San Diego and Karen McCready for Real Party in

Interest, M.D., a Minor.

       A.D. filed a petition for extraordinary writ under California Rules of Court,2 rule

8.452, seeking review and stay of a juvenile court order denying reunification services as

to her minor daughter M.D. and setting a section 366.26 hearing. A.D. requests that the

jurisdiction and disposition orders be reversed with directions to the juvenile court to

determine whether there was proper compliance with the noticing requirements of the

Indian Child Welfare Act (ICWA) and to hold new jurisdiction and disposition hearings.

In response to the petition, the San Diego County Health and Human Services Agency

(the Agency) filed a motion to dismiss the writ petition as moot and a request for judicial

notice and motion to augment the record. We grant the request for judicial notice, the

motion to augment the record, and the motion to dismiss the petition as moot.

                   FACTUAL AND PROCEDURAL BACKGROUND

       On October 16, 2015, the Agency filed a petition on behalf of three-month-old

M.D. under section 300, subdivision (b), alleging A.D. had a mental illness evidenced by


2      All rule references are to the California Rules of Court.

                                             2
her verbally aggressive and paranoid behaviors toward other residents where she was

staying. A.D. attempted to feed M.D. dry baby formula with no water and became

frustrated when the child would not eat. She also physically assaulted an elderly woman

on the street in M.D.'s presence. She was unable to provide care for M.D. because she

had been arrested and incarcerated. M.D. was placed in a licensed foster home.

       On October 19, 2015, A.D. filed an ICWA-020 form on which she stated she may

have Indian ancestry with the "Chee Cherokee" tribe. At the detention hearing on that

date, the court noted A.D. may have Indian ancestry and deferred making an ICWA

finding. The court noted A.D. had a prior dependency case and directed the Agency to

investigate whether there had been an ICWA determination as to "any related sibling" of

M.D.

       In its jurisdiction/disposition report, the Agency noted the ICWA may apply and

stated it would send notices to the Bureau of Indian Affairs (BIA) and "the respective

tribes" and provide the court with the information it received from them. At a hearing on

November 9, 2015, the court set a settlement conference for December 10, 2015 and a

contested jurisdiction and disposition hearing for December 14, 2015. The court ordered

the Agency to produce the information regarding ICWA noticing at the next hearing and

deferred the ICWA issue to the settlement conference.

       In an addendum report for the December 10, 2015 settlement conference, the

Agency reported that on December 9, 2015, it had sent notices to the BIA, the Secretary

of the Interior, and the respective tribes. The form ICWA-030 notices the Agency sent

gave notice of the December 10 "Settlement/Pre-trial Conference," and was sent to the

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following three tribes: Cherokee Nation, United Keetoowah Band of Cherokee Indians,

and Eastern Band of Cherokee Indians (the tribes). The notice reported that when an

Agency social worker asked A.D. if she had any American Indian heritage, A.D. said, "I

do, Chee Cherokee, on my mom and grandparent's side."

       At the settlement conference on December 10, 2015, the court made its

jurisdiction and disposition findings and orders, and ordered that no reunification services

were to be provided to A.D. The court set a section 366.26 hearing for March 30, 2016.

The court noted, "the [ICWA] finding was deferred" and stated it would continue to be

deferred. At the conclusion of the hearing, the court set the "ICWA special [hearing]" for

February 10, 2016.

                                        DISCUSSION

       A.D. correctly contends that the juvenile court erred by holding the jurisdiction

and disposition hearing sooner than 10 days after the BIA, Secretary of the Interior, and

tribes received ICWA notice from the Agency. Title 25 United States Code section

1912(a) "clearly states: 'No foster care placement or termination of parental rights

proceeding shall be held until at least ten days after receipt of notice by . . . the tribe or

the Secretary . . . .' " (In re Jennifer A. (2002) 103 Cal.App.4th 692, 704.)

       The Agency asks that we take judicial notice under rule 8.252 of the juvenile

court's February 10, 2016 minute order and findings, and that we augment the record with

the Agency's addendum report and attachments that the court considered at the

February 10 hearing regarding ICWA notice. In considering whether an appeal has been

rendered moot by a postappeal hearing, it is appropriate for us to take judicial notice of

                                                4
documents pertaining to the subsequent hearing. (In re Karen G. (2004) 121 Cal.App.4th

1384, 1390 [judicial notice taken of minute order from six-month review hearing in

deciding the appeal from jurisdiction and disposition orders was moot].)

       Regarding augmentation, Code of Civil Procedure section 909 provides that a

"reviewing court may . . . in the interests of justice, take additional evidence of or

concerning facts occurring at any time prior to the decision of the appeal, and may give

or direct the entry of any judgment or order and may make any further or other order as

the case may require. This section shall be liberally construed to the end among others

that, where feasible, causes may be finally disposed of by a single appeal and without

further proceedings in the trial court except where in the interests of justice a new trial is

required on some or all of the issues." (Italics added.)

       Augmentation of the record with the Agency's report, including attachments, for

the February 10, 2016 hearing is appropriate because the report is relevant, it was before

the juvenile court, and it concerns ICWA compliance (which can be raised at any time)

rather than the merits of the dependency proceeding. (See Alicia B. v. Superior Court

(2004) 116 Cal.App.4th 856, 866-867 [permitting augmentation of record with ICWA

notices not filed in the juvenile court until the writ proceeding where appellant was

challenging ICWA notice rather than termination of parental rights]; In re A.B. (2008)

164 Cal.App.4th 832, 841, 843 [permitting augmentation with an ICWA form from a

separate dependency case, noting the ICWA issue was "distinct from the substantive

merits"].)



                                              5
       The Agency acknowledges that its motion to augment is untimely under rule

8.452(e)(2), which provides that "[a] respondent [to a writ petition under rule 8.452] must

serve and file [any request to augment or correct the record] within 5 days after the

petition is filed or an order to show cause has issued, whichever is later." However, the

Agency asks that we exercise our discretion to extend that time period for good cause,

which we are authorized to do under rule 8.450(d). We conclude the Agency has shown

good cause for extending the time to file its motion to augment. A.D. filed her writ

petition on January 28, 2016. The court issued its order regarding ICWA notice

applicability on February 10, 2016. The Agency filed its motion to augment seven days

later, before its opposition to A.D.'s writ petition was due. The time between the hearing

and the filing of the Agency's motion was not unreasonable. Because the ICWA hearing

was held 13 days after A.D. filed her writ petition, it was not possible for the Agency to

file a motion to augment the record with the court's ICWA findings and order within five

days of the filing of the petition.

       We grant the Agency's request for judicial notice and motion to augment the

record, and deem the documents attached to the Agency's motion to be a part of the

record in this proceeding. The attachments to the Agency's addendum report for the

February 10 hearing include copies of the Agency's ICWA notices and the tribes'

responses, bearing dates from December 18, 2015, to December 31, 2015. Each of the

tribes informed the Agency that M.D. was not registered or eligible to register as a

member of the tribe based on the information received from the Agency. Based on the

Agency's report, the court properly found that reasonable inquiry had been made to

                                             6
determine whether M.D. is, or may, be an Indian child and that the ICWA does not apply

in this case.

       The court's February 10, 2016 order renders A.D.'s writ petition moot. " '[A]n

action that originally was based on a justiciable controversy cannot be maintained on

appeal if all the questions have become moot by subsequent acts or events. A reversal in

such a case would be without practical effect, and the appeal [or writ proceeding] will

therefore be dismissed.' [Citation.] The question of mootness in a dependency case

should be decided on a case-by-case basis, particularly when an error in the juvenile

court's initial jurisdictional finding has been alleged." (In re Dani R. (2001) 89

Cal.App.4th 402, 404-405.) "An exception to this rule exists where the question to be

decided is of continuing public importance and is one ' " 'capable of repetition, yet

evading review.' " ' [Citations.] Accordingly, 'if a pending case poses an issue of broad

public interest that is likely to recur, the court may exercise an inherent discretion to

resolve that issue even though an event occurring during its pendency would normally

render the matter moot.' " (In re Christina A. (2001) 91 Cal.App.4th 1153, 1158.)

       There presently is no actual controversy about whether the ICWA applies to this

case or whether proper ICWA notices were sent to the relevant entities. In re E.W.

(2009) 170 Cal.App.4th 396 (E.W.) is instructive. In that case, the Court of Appeal

concluded that failing to reference the younger of two siblings in ICWA notices sent to

three tribes and the BIA was harmless error because the tribes' responses to the notices

established that the older sibling was not an Indian child. (Id. at pp. 399-400.) In the

interest of judicial economy, the E.W. court rejected the option of reversing the order

                                              7
terminating parental rights with a limited remand for the purpose of sending additional

ICWA notices that referenced the younger sibling, stating: "Even a conditional reversal

with limited remand would be an empty formality and a waste of ever-more-scarce

judicial resources. This is because there is no doubt that the [relevant] tribes and the BIA

would respond to any ICWA notices regarding [the younger sibling] with the exact same

answer as they did when they received these notices regarding [the older sibling]. . . . We

cannot condone delaying [the children's stability and] permanence for an empty exercise

with a preordained outcome, especially where that exercise does nothing concrete to

further the purposes of ICWA—'to give tribes the opportunity to investigate and

determine whether a child is an Indian child, and to advise the tribe of the pending

proceeding and its right to intervene.' " (Id. at pp. 401-402.)

       Likewise, in the present case it would be an empty formality and waste of judicial

resources to reverse the jurisdictional and dispositional orders with a limited remand for

the purpose of determining whether there was compliance with the ICWA noticing

requirements. Because the court made that determination at the February 10, 2016

hearing, redoing the jurisdiction and disposition hearing for that purpose would be "an

empty exercise with a preordained outcome" that would do nothing to further the

purposes of the ICWA. (E.W., supra, 170 Cal.App.4th at p. 402.)

       A.D. argues her writ petition should not be dismissed as moot because compliance

with the ICWA is an issue of continuing public importance and capable of repetition, yet

evading review. Although the ICWA itself reflects and embodies important public

policies, we do not view the specific issue raised in this proceeding—i.e., the juvenile

                                              8
court's improperly conducting a jurisdiction/disposition hearing less than 10 days after a

tribe's receipt of notice of the dependency proceedings—as one of broad public interest

that is likely to recur. We are mindful that the juvenile court, through inadvertence or

oversight, erred in conducting the jurisdiction/disposition hearing before expiration of the

10-day notice period. However, we conclude the error was harmless in light of the tribes'

responses, which established that the ICWA does not apply to this case. Nonetheless, we

expect that in the future the juvenile court, the Agency, and other interested parties will

be diligent in making sure there has been full compliance with the requirements of the

ICWA before proceeding with a jurisdiction or disposition hearing.

                                      DISPOSITION

       The Agency's request for judicial notice and motion to augment the record are

granted. The petition is dismissed. The request for stay is denied.


                                                                                  NARES, J.

WE CONCUR:


HUFFMAN, Acting P. J.


Prager, J.*




*       Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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