In re Gabriel B.

Filed 9/27/07 In re Gabriel B. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

The juvenile court found minor Gabriel B. to be a dependent child and committed him to the care of respondent Alameda County Social Services Agency. On appeal from the jurisdictional and dispositional order, Gabriels fatherappellant Fidel H.contends that the juvenile court failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA). (See 25 U.S.C.^[1] 1901-1923.) As several months passed since these juvenile court rulings before the case became ready for determination on appeal, when the case was fully briefed, we asked the parties whether any juvenile court events had occurred that might bear on this issue. In response to our request for letter briefs, the parties have asked us to take judicial notice of records reflecting some of these later-occurring events. We have done so.^[2] Now, the agency contends that subsequent events have rendered this appeal moot. We agree and thus, we dismiss the appeal as moot.

I. FACTS

Gabriel B. was born to Alicia B. in September 2005. At times, they lived in Hayward with Alicias mother Martha B., with whom Alicia often left her child. Alicia struggled with mental health and substance abuse issues.

On January 27, 2007,^[3]Alicia was involved in an altercation with her brother at Marthas home in the minors presence. She broke in a door in an attempt to take Gabriel from the home. She admitted that she was under the influence of methamphetamine at the time. As a result of this incident, Hayward officials took Alicia to a mental health facility for evaluation.^[4] (See Welf. & Inst. Code,  5150.) Gabriel was detained at that time.

On January 30, respondent Alameda County Social Services Agency filed a petition seeking to have Gabriel declared a dependent child. It alleged that Alicia had failed to protect Gabriel and was unable to do so because of mental illness and substance abuse. It also alleged that Alicia had made no provision for the minors support. (See Welf. & Inst. Code,  300, subds. (b), (g).) The agency sought to have the minor formally placed with Martha.

The petition stated that the identity and whereabouts of Gabriels biological father was unknown, although the agency had some evidence of two possible fathers, including appellant Fidel H. Fidel had a history of substance abuse and domestic violence.

Fidel appeared at the detention hearing held on January 31. Based on his testimony and that of Alicia, the juvenile court found that Fidel was Gabriels presumed father. On February 1, the juvenile court found that Gabriels removal from Alicias home was required.

The juvenile dependency petition did not indicate that Gabriel might be of Indian ancestry or a member of an Indian tribe. However, on February 1, Fidel filed a parental notification of Indian status, indicating that he might be a member of or eligible for membership in the Shishoni [sic] Indian tribe, and that he might have Indian ancestry. An agency report prepared before the jurisdiction hearing stated that the ICWA may apply and that it was filing the appropriate notices.

On February 14, Fidel again appeared in court for the jurisdiction hearing. He admitted that the allegations of the petition were true. His attorney asked the juvenile court to proceed on jurisdiction but not on disposition, because of ICWA implications that had arisen. County counsel disagreed, arguing that it was not yet clear whether ICWA notice requirements applied to the matter. It proposed proceeding to disposition, with the understanding that any disposition order would be revisited if it was later determined that Gabriel was an Indian child within the meaning of the ICWA.

The juvenile court ruled that it would consider the disposition issues at that time, knowing that the issues might be revisited if the results of the agencys ICWA inquiry required it. It found the allegations of the petition to be true and declared Gabriel to be a dependent of the court. It also ordered the agency to follow the ICWA procedures and determine what rights, if any, Gabriel, Fidel or Alicia had under the ICWA.^[5] Gabriels temporary placement in foster care was formally approved. Fidel filed an appeal contending that these jurisdictional and dispositional findings had been made without consideration of placement preferences under the ICWA and without complying with ICWA notice requirements.

Since the time of Fidels appeal, several events relevant to the issues raised on appeal have occurred.^[6] In May, Alicia filed a statement with the agency claiming her own Indian ancestry. On May 16, the juvenile court deemed Alicias mother MarthaGabriels grandmotherto be an Indian custodian and approved her for placement. On August 20, at the end of a contested review hearing, the juvenile court found inter alia that notice had been given as required by law and ordered that the minors placement should continue. On August 22, the juvenile court amended its August 20 order to add its findings that the ICWA applied to the case; that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family; and that the ICWA placement preferences were considered and followed when Gabriel was placed with Martha.

II. MOOTNESS

In his appeal,^[7]Fidel raises various challenges to the juvenile courts compliance with the ICWA. Specifically, he contends that the juvenile court made its findings and entered its February 2007 order over his objection for failing to comply with ICWA notice requirements, denied his request for a continuance, and placed Gabriel into foster care without considering ICWA placement preferences about disposition.

Since the time of the juvenile court order from which Fidel appeals, Gabriel has been placed with Martha, who was deemed to be an Indian custodian. The county argues that this placement renders moot Fidels appeal challenging the juvenile courts compliance with ICWA notice provisions. It reasons that because Gabriel was placed with a member of his extended family who is an Indian custodian, the underlying proceeding was not an Indian child custody proceeding within the meaning of the ICWA and the ICWA notice requirements do not apply to this matter.

An involuntary proceeding for the foster care placement of or termination of parental rights to an Indian child cannot be conducted without first complying with the notice requirements of the ICWA. ( 1912(a); see Welf. & Inst. Code,  224, subd. (b), 224.1, subd. (c), 224.2, subd. (a); Cal. Rules of Court,^[8]rule 5.664(a)(8), (b), (f).) Under the terms of the ICWA, an Indian child custody proceeding is a proceeding for foster care placement, termination of parental rights, preadoptive placement or adoptive placement. ( 1903(1); see Welf. & Inst. Code,  224, subd. (b), 224.1, subd. (c); rule 5.664(b); see also In re Robert A. (2007) 147 Cal.App.4th 982, 986 fn. 4.) Fidel asserts that the juvenile court proceeding in this matter was one to place Gabriel in foster care, bringing it within the terms of the ICWA.

We disagree. A proceeding for a foster care placement is one removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator in circumstances in which the parent or Indian custodian cannot have the child returned on demand. (See  1903(1)(i); rule 5.664(a)(9).) However, a proceeding for placement of an Indian child with a member of the childs extended family who is also an Indian custodian does not appear to be an Indian child custody proceeding within the meaning of the ICWA. (See  1903(1)(i), (2); rule 5.664(a)(3)(A), (7).)

An Indian childs extended family includes his or her adult grandparent, such as Gabriels maternal grandmother Martha. (See  1903(2); rule 5.664(a)(7).) An Indian person who has been granted legal custody of the child under state law is an Indian custodian. (See  1903(6); rule 5.664(a)(3)(A).) The juvenile court deemed Martha to be an Indian custodian and ordered Gabriel to be placed with her.^[9] Thus, regardless of whether the January 30 petition instituted a proceeding that once fell within the ICWA, the juvenile courts placement of Gabriel with Marthaa member of his extended family who was also an Indian custodianrendered the requirements of the ICWA inapplicable to those proceedings.

The county contends that these events rendered Fidels appeal on ICWA notice grounds moot. A question becomes moot when, during the pendency of an appeal, events transpire that prevent the appellate court from granting any effectual relief. (See Lester v. Lennane (2000)84 Cal.App.4th 536, 566; see also Consol. etc. Corp. v. United A. etc. Workers (1946) 27 Cal.2d 859, 863.) In a dependency case, the question of mootness is decided on a case-by-case basis. (In re Dani R. (2001) 89 Cal.App.4th 402, 404.) An action that was originally based on a justiciable controversy cannot be maintained on appeal if all the questions have become moot because of subsequent acts. As a reversal in such a case would be without practical effect, the appeal must be dismissed. (Ibid.; see 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, 642, pp. 669-671.)

We find that the case before us is moot. The ICWA ceased to apply to this proceeding in May when Gabriel was placed with his grandmother who was an Indian custodian. (See  1903(1)(i), (2); rule 5.664(a)(3)(A), (7).) As of that moment, the ICWA notice requirementseven if they applied when the January 30 petition was filedceased to apply to this juvenile court matter. Even if we found in Fidels favor on the notice issues raised on appeal, we could provide no meaningful relief because the proceeding had ceased to be an Indian child custody proceeding within the meaning of the ICWA and those notice requirements no longer applied. Fidels appeal, grounded in claims of lack of compliance with the notice provisions of the ICWA, was rendered moot by the juvenile courts placement of Gabriel with Martha. (See, e.g., In re Dani R., supra, 89 Cal.App.4th at p. 404.)

Despite this, Fidel contends that the issues presented by his appeal are recurring questions that we should address, despite their mootness. He reasons that because the minimum 60-day waiting period for a response to an ICWA notice will always pass before an appeal can be submitted for decision, the agencys asserted failure to comply with the ICWA notice requirements will evade review if we do not consider the merits of this issue, despite its mootness. We decline Fidels invitation to address the merits of the ICWA notice issues, as we find that the circumstances of this case do not present the best vehicle for addressing them.

The appeal is dismissed as moot.

_________________________

Reardon, J.

We concur:

_________________________

Ruvolo, P.J.

_________________________

Rivera, J.

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^[1]All subsequent statutory references are to title 25 of the United States Code unless otherwise indicated.

^[2]In August 2007, we granted the agencys request that we take judicial notice of the juvenile courts May 16, 2007 minute order. In September 2007, we granted Fidels request that we take judicial notice of that courts August 20, 2007 minute order. We granted each request for judicial notice without making a determination of relevance. We find that both the May 16, 2007 and August 20, 2007 minute orders are relevant. (See Evid. Code,  210, 452, subd. (d)(1), 459, subd. (a).)

^[3]All subsequent dates refer to the 2007 calendar year unless otherwise indicated.

^[4]Martha reported that a restraining order issued against Alicia at that time, precluding her from entering the home.

^[5]On February 21, the agency sent a notice of involuntary child custody proceedings for an Indian child to the Northwestern Band of the Shoshoni Nation and the federal Bureau of Indian Affairs. The record on appeal does not indicate if the agency received any response to this notice.

^[6]Generally, consideration of postjudgment evidence in juvenile dependency cases is not permitted. However, limited consideration of such evidence may be proper if it does not go to merits, but pertains to a procedural issue such as mootness. (See In re Josiah Z. (2005) 36 Cal.4th 664; In re Zeth S. (2003) 31 Cal.4th 396; In re Salvador M. (2005) 133 Cal.App.4th 1415.) Other eventsreferenced in the parties responses to our request for letter briefshave also reportedly occurred, but as we have not been provided with any evidence of those events, we do not include them in our statement of facts.

^[7]We assume arguendo that Fidel has standing to appeal these orders and that the orders before us are appealable.

^[8]All subsequent references to rules are to the California Rules of Court.

^[9]In his letter brief, Fidel argues that there was no evidence that Martha was an Indian custodian because she did not have legal custody of Gabriel under state law. We disagree. The juvenile court found that Martha was an Indian custodian and placed Gabriel with her in an exercise of state law. (See  1903(6); see rule 5.664(a)(3)(A).) This appears to have been based on Alicias statement of Indian ancestry, which was filed in May. At the moment that the juvenile court ordered Gabriel placed with her, Martha became an Indian custodian within the meaning of the ICWA. (See  1903(6); see rule 5.664(a)(3)(A).)