Filed 5/2/17 In re M.B. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
In re M.B., a Person Coming Under the
Juvenile Court Law.
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
HAILEY B.,
Defendant and Appellant.
D071514
(Super. Ct. No. EJ4066)
APPEAL from an order of the Superior Court of San Diego County, Gary M.
Bubis, Judge. Affirmed.
Elena S. Min, under appointment by the Court of Appeal, for Defendant and
Appellant.
2
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and
Respondent.
Hailey B. appeals the dispositional order in the dependency case of her minor
daughter M.B. Hailey contends that the juvenile court erred by determining that the San
Diego County Health and Human Services Agency (Agency) provided proper notice of
M.B.'s dependency case under the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et
seq.). Hailey contends that (1) the court should not have found ICWA notice proper
without reviewing the notice documents themselves and (2) the court should have
required the Agency to provide notice to federally recognized Seneca tribes based on an
assertion of Seneca heritage by M.B.'s presumed father Robert Y. As to the first
contention, we conclude that Hailey's argument is moot in light of a subsequent juvenile
court order vacating the notice finding and reexamining the issue in light of new
evidence. As to the second, we conclude that the court did not err. We therefore affirm
the order.
FACTUAL AND PROCEDURAL BACKGROUND
"In accord with the usual rules on appeal, we state the facts in the manner most
favorable to the dependency court's order." (In re Janee W. (2006) 140 Cal.App.4th 1444,
1448, fn. 1.) Because Hailey raises only issues relating to ICWA, our discussion of the
other issues in M.B.'s dependency case will be brief.
On July 26, 2016, the Agency petitioned the juvenile court under Welfare and
Institutions Code section 300, subdivision (b)(1) on behalf of seven-month-old M.B. The
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Agency alleged that Hailey attempted to drive with M.B. while under the influence of
methamphetamine. Because of her methamphetamine use, Hailey was unable to provide
regular care for M.B. The Agency alleged that Robert had failed or was unable to protect
M.B. and that Hailey and Robert had a history of domestic violence. The Agency further
alleged that M.B. had tested presumptively positive for amphetamine and marijuana and
therefore, had suffered or was at substantial risk of suffering serious physical harm or
illness. The presumptive positive test of M.B.'s urine was later confirmed to be positive,
and the petition was amended accordingly.
At M.B.'s detention hearing, the court found that the petition stated a prima facie
case and ordered that M.B. be detained in out-of-home care. The court later sustained the
allegations of the petition, removed M.B. from her parents' custody, and ordered
reunification services for Hailey and Robert.
Hailey and Robert completed parentage and Indian status questionnaires, which
were filed with the court.1 Hailey stated in her parentage questionnaire that Robert had
American Indian heritage, but she was not sure which tribe. In his parentage
questionnaire, Robert stated that he may have American Indian heritage in a Seneca tribe.
In her Indian status questionnaire, Hailey indicated that she may have American Indian
ancestry, but she did not know the tribe and wrote that it is "a small percentage." In his

1 The parentage questionnaires were on forms adopted by the San Diego County
Superior Court, JUV-045 for Robert and JUV-046 for Hailey. The Indian status
questionnaire was the "Parental Notification of Indian Status" form (ICWA-020) adopted
by the Judicial Council of California.
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Indian status questionnaire, Robert again stated that he may have American Indian
ancestry in a Seneca tribe.
In its jurisdiction and disposition report, the Agency indicated that ICWA may
apply. The Agency attempted to gather additional information from Hailey and Robert,
but they did not provide the required forms. At the next hearing, the juvenile court
inquired about the status of those forms. Robert's counsel stated, in open court with
Robert present, that Robert had determined that he had no American Indian ancestry:
"[Robert] filled out the form this morning with his father, and upon further discussions
with the family, has decided they do not have any Native American ancestry and
indicated such on the form that was given to the social worker." (This form is not part of
the record.) Hailey's counsel stated that Hailey would obtain the required information
from her grandmother. In its minute order following the hearing, the court wrote, "ICWA
may apply. The father has completed the ICWA information form, and denies American
Indian heritage."
The Agency later sent ICWA notices to a number of Sioux tribes, the United
States Secretary of the Interior, the Bureau of Indian Affairs, Hailey, and Robert.2
Although the Agency submitted proofs of delivery, as well as any responses received
from the tribes, it did not provide the court with the content of the ICWA notices
themselves. At M.B.'s disposition hearing, the court found that the ICWA notices were
appropriate. Hailey appealed.

2 It appears the Agency determined from conversations with relatives that Hailey
may have Sioux heritage.
5
While this appeal was pending, the court received additional information
regarding ICWA. In a minute order, the court set aside its finding at the disposition
hearing that the ICWA notices were appropriate and "confirm[ed] today that notices have
now been sent out in accordance with [ICWA]." (Italics added.) The court reiterated its
prior determination that Robert had denied American Indian heritage.3
DISCUSSION
I
Hailey contends that the juvenile court erred by finding the Agency's ICWA
notices sufficient because the Agency did not provide the court with the notices
themselves. The Agency asserts that Hailey's contention is moot because the court
vacated its finding on the sufficiency of the Agency's initial ICWA notices, considered
new evidence, and made a new finding on the issue. We agree with the Agency.
"An appeal becomes moot when, through no fault of the respondent, the
occurrence of an event renders it impossible for the appellate court to grant the appellant
effective relief." (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1404.) "Juvenile
dependency appeals raise unique mootness concerns because the parties have multiple

3 We grant the Agency's motion for judicial notice of this minute order. (Evid.
Code, §§ 452, subd. (d), 459.) We may consider postjudgment evidence to determine
whether an appeal is moot or should otherwise be dismissed. (See In re Josiah Z. (2005)
36 Cal.4th 664, 676; In re N.S. (2016) 245 Cal.App.4th 53, 57-58 (N.S.).) However, we
deny the Agency's motion to augment the record with the ICWA materials referenced in
the minute order. These materials are unnecessary to our disposition of this appeal, and
we therefore need not consider whether they would be the appropriate subject of a motion
to augment.
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opportunities to appeal orders even as the proceedings in the juvenile court proceed."
(N.S., supra, 245 Cal.App.4th at p. 59.)
Hailey's contention that the court erred when it found the Agency's ICWA notices
sufficient is moot. The relief that Hailey seeks, reversal of the court's ICWA finding, has
already occurred.4 The court set aside the finding at issue and has entered a new finding
on the basis of new evidence; the new finding is not before us. Because we cannot grant
Hailey any effective relief beyond what the court has already ordered, her contention is
moot.
We may exercise our discretion to retain jurisdiction over an issue, even though it
may technically be moot, "when there remain 'material questions for the court's
determination' [citation], where a 'pending case poses an issue of broad public interest
that is likely to recur' [citation], or where 'there is a likelihood of recurrence of the
controversy between the same parties or others.' " (N.S., supra, 245 Cal.App.4th at
p. 59.) Hailey does not suggest that her contention falls within any of these exceptions,
and based on our review, we have not identified any applicable exception, either. Her
contention is therefore moot, and we need not further consider it.

4 Contrary to Hailey's suggestion, even if we had considered Hailey's contention and
found error, we would reverse only the erroneous ICWA finding and remand for ICWA
compliance. (See In re D.C. (2015) 243 Cal.App.4th 41, 64; In re Damian C. (2009) 178
Cal.App.4th 192, 199.) We would not reverse the court's jurisdictional and dispositional
orders. (See In re Hunter W. (2011) 200 Cal.App.4th 1454, 1467.)
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II
Hailey also contends that the court erred by not requiring the Agency to send
ICWA notices to any Seneca tribes based on Robert's assertions of possible American
Indian heritage. Although this contention is arguably moot as well, it is clear that the
issue of notice to the Seneca tribes remains in dispute between the parties. This
controversy is therefore likely to recur, so we will consider its merits. (See N.S., supra,
245 Cal.App.4th at p. 59.)
"Congress enacted ICWA in 1978 in response to 'rising concern in the mid-1970's
over the consequences to Indian children, Indian families, and Indian tribes of abusive
child welfare practices that resulted in the separation of large numbers of Indian children
from their families and tribes through adoption or foster care placement, usually in
non-Indian homes.' [Citation.] ICWA declared that 'it is the policy of this Nation 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 . . . .'
[Citation.] [¶] The minimum standards established by ICWA include the requirement of
notice to Indian tribes in any involuntary proceeding in state court to place a child in
foster care or to terminate parental rights 'where the court knows or has reason to know
that an Indian child is involved.' " (In re Isaiah W. (2016) 1 Cal.5th 1, 7-8.) We review
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the juvenile court's finding that ICWA notice was adequate for substantial evidence. (In
re J.T. (2007) 154 Cal.App.4th 986, 991 (J.T.).)5
"The determination of a child's Indian status is up to the tribe; therefore, the
juvenile court needs only a suggestion of Indian ancestry to trigger the notice
requirement." (In re Nikki R. (2003) 106 Cal.App.4th 844, 848; see In re D.C., supra,
243 Cal.App.4th at p. 60.) We will assume without deciding that Robert's initial
statements in his parentage and Indian status questionnaires that he "may" have American
Indian ancestry in a Seneca tribe were sufficient to trigger this notice requirement
because the statements suggested that M.B. may be an Indian child under ICWA. (See
Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 257-258.)
However, Robert's subsequent clarification that he in fact had no American Indian
ancestry changed the analysis of M.B.'s potential status as an Indian child. Information
that "reliably rebut[s]" a parent's claim to American Indian ancestry may reasonably lead
the juvenile court to determine that it has no reason to believe the dependent minor is an
Indian child. (See In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1168; see also In re
Jeremiah G. (2009) 172 Cal.App.4th 1514, 1521 (Jeremiah G.).) Hailey does not
mention Robert's subsequent clarification in her opening brief, violating both the
California Rules of Court and established standards of appellate briefing. (See Cal. Rules

5 Citing J.T., Hailey contends that the proper standard is abuse of discretion. J.T.
does not support such a contention, and in fact, does not mention abuse of discretion at
all. (See J.T., supra, 154 Cal.App.4th at p. 991.) In any event, our conclusion would be
the same under either standard.
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of Court, rule 8.204(a)(2)(C) [an appellant's opening brief must provide a summary of
significant facts]; In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1531.)
In any event, Jeremiah G. is instructive. In that case, a parent "told the juvenile
court he might have some Indian heritage and the matter needed to be researched."
(Jeremiah G., supra, 172 Cal.App.4th at p. 1521.) At a later hearing, however, the
parent's counsel informed the court that "although [the parent] had initially claimed he
might have Indian ancestry, he had retracted that claim and did not have any Indian
heritage." (Ibid.) The parent was present at the hearing. (Ibid.) The reviewing court
concluded, "Because [the parent] retracted his claim of Indian heritage, and because there
was no other basis for suspecting that [the minor] might be an Indian child, the [juvenile]
court properly proceeded without ICWA notice." (Ibid.)
In light of the entire record, including Robert's initial statements and his
subsequent disavowal of Indian heritage, the juvenile court could reasonably conclude
that it did not have sufficient reason to know M.B. was an Indian child with respect to the
Seneca tribes. Robert's initial statements were equivocal and vague, and his subsequent
disavowal was clear and credible. Moreover, in light of his clear disavowal in open
court, neither the Agency nor the juvenile court had any reason to further inquire
regarding his lack of American Indian heritage. (Cf. In re Gabriel G., supra, 206
Cal.App.4th at p. 1168 [conflicting statements to social workers required further
10
investigation].) Hailey has not shown that the juvenile court erred by not requiring notice
to the Seneca tribes.6
DISPOSITION
The order is affirmed.
AARON, J.
WE CONCUR:
BENKE, Acting P. J.
NARES, J.

6 Given our conclusion, we need not consider the Agency's contention that Hailey
forfeited the ability to raise such an error on appeal in the absence of an objection on that
basis in the juvenile court. We note that a number of cases have held that such an
objection is not required. (See, e.g., In re Z.N. (2010) 181 Cal.App.4th 282, 296-297;
J.T., supra, 154 Cal.App.4th at p. 991; In re Samuel P. (2002) 99 Cal.App.4th 1259,
1267-1268.) The Agency relies on cases involving a second appeal challenging ICWA
notice, which is not the situation here. (See In re Amber F. (2007) 150 Cal.App.4th 1152,
1156; In re X.V. (2005) 132 Cal.App.4th 794, 803-804.)