In re Juan J.

Filed 2/15/07  In re Juan J. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

            APPEAL from orders of the Superior Court of San Diego County, Hideo Chino, Referee.  Affirmed in part, reversed in part and remanded with directions.

            Juan J., Sr. (Juan Sr.) appeals from orders on juvenile dependency petitions filed by the San Diego Health and Human Services Agency (the Agency) on behalf of his minor children, Juan J., Jr. (Juan Jr., age 3) and Jared J. (age 8-months; together the children).  Juan Sr. claims that the juvenile court erred in:  (1) failing to acknowledge his presumed father status as to Juan Jr.; (2) not ordering a paternity test as to Jared; (3) not securing his attendance at scheduled hearings; and (4) finding that the Indian Child Welfare Act (ICWA) did not apply without having an adequate basis for that finding as to him.  The Agency seeks to dismiss the appeal on the ground subsequent events have rendered all issues moot.

            We agree that the paternity issue is moot, but find that the issues pertaining to Juan Sr.'s attendance and application of ICWA are not moot.  We deny the motion to dismiss the appeal and address the latter issues on their merits.  We find no error pertaining to the juvenile court's failure to secure Juan Sr.'s attendance, but reverse the finding that ICWA did not apply.  Accordingly, we reverse the dispositional orders and remand the matter for further proceedings to assure compliance with the federal statute.

BACKGROUND

            In March 2006, the Agency removed the children from the custody of their mother, Daisy V., and filed petitions under Welfare and Institutions Code, section 300, subdivisions (b) and (g), alleging that the children were at a substantial risk of detriment due to Daisy's use of narcotics and that Juan Sr. could not provide for their care due to his incarceration.  (All undesignated statutory references are to the Welfare and Institutions Code and all further dates are in 2006 unless otherwise specified.)  Daisy identified Juan Sr. as the children's father and stated that he was listed as the father on the children's birth certificates and was currently incarcerated in a federal correctional institution located in Lompoc, California, they were not married and the children had no Indian heritage.  At the detention hearing, the trial court found that ICWA did not apply after the paternal grandfather stated that his family had no Indian heritage.

            Juan Sr. did not appear at the April jurisdiction hearing despite a court order commanding his temporary release to the San Diego Sheriff's Department and the court set the matter for trial.  At a May settlement conference, the juvenile court struck the allegation under section 300, subdivision (g), sustained the remaining allegation and continued the disposition hearing for five weeks to allow Juan Sr.'s counsel another opportunity to get him to court.  The juvenile court also ordered that Juan Sr. receive $25 each month to call the children's caretakers.  Thereafter, the Agency's social worker spoke to Juan Sr.'s prison counselor, who reported that Juan Sr. was set to be released in May 2008, that Juan Sr. did not have any Native American heritage and that arrest papers indicated Juan Sr. was the children's father.

            Despite another request and order that Juan Sr. be released for the June disposition hearing, he did not appear.  After refusing to continue the hearing because Juan Sr.'s release date was several years away, the juvenile court continued Daisy's services, again found that ICWA did not apply and allowed Juan Sr. leave to place dispositional issues back before it.  Juan Sr. timely appealed.

DISCUSSION

I.  The Paternity Issue is Moot

            The Agency contends this appeal is moot and asks that the record be augmented to reflect events that occurred while this case was pending on appeal.  Postjudgment evidence is admissible for the limited purpose of determining whether any subsequent developments have rendered an appeal moot.  (See In re Karen G. (2004) 121 Cal.App.4th 1384; see also In re Merrick V. (2004) 122 Cal.App.4th 235, 247, fn. 3.)  Accordingly, we granted the request to augment and deemed the attached documents part of the record on appeal.

            These documents show that Juan Sr. submitted paternity questionnaires for the children and the juvenile court later entered judgments of paternity for him.  An addendum report for an October special hearing revealed that Juan Sr. was calling the children's caregiver several times a month to inquire about his children and participating in services offered at his place of incarceration, including attending " NA," anger management and parenting meetings, watching domestic violence videos and preparing for the GED examination.  The social worker also learned that although Juan Sr. indicated his mother was part of Tadumanda, a Mexican tribe that might be recognized by the Apache tribe, this tribe did not appear on the Bureau of Indian Affairs's list of federally recognized tribes and three Arizona Apache tribes indicated that Tadumanda was not affiliated with their respective tribes.

            We ordered Juan Sr. to submit the transcript of the August 2 hearing and deem this transcript to be part of the record on appeal.  We also take judicial notice of the superior court files in this case and in particular the minute orders dated November 20 where the juvenile court found for the third time that ICWA did not apply to the children.

            An appeal is rendered 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 Jessica K. (2000) 79 Cal.App.4th 1313, 1315-1316.)  If we are powerless to grant effective relief, the appeal is moot and must be dismissed.  (Ibid.)  Whether subsequent events in a juvenile dependency matter make any given case moot must be decided on a case-by-case basis and we must consider whether our decision would affect the outcome in a subsequent proceeding.  (In re Dylan T. (1998) 65 Cal.App.4th 765, 769.)

            Juan Sr. contends that the juvenile court erred in failing to acknowledge his presumed father status as to Juan Jr. and not ordering a paternity test as to Jared; however, the juvenile court has since entered paternity judgments for the children, the social worker has prepared a case plan and the court has ordered reunification services for Juan Sr.  Although it can be argued that the juvenile court did not resolve the paternity issue as soon as practicable, the change in circumstances has rendered the issue moot.

II.  Failure to Secure Juan Sr.'s Presence

at the Disposition Hearing

            Juan Sr. complains that the trial court erred by proceeding without securing his presence at the dependency proceedings and abused its discretion by denying his request for a continuance at the June disposition hearing.  The Agency asserts any error is moot because the minute orders for the August 2 SARMS review hearing indicate that Juan Sr. appeared.  While the minute orders for the August 2 hearing indicate that Juan Sr. was present, the reporter's transcript for the hearing shows that Juan Sr. did not appear.

            We have reviewed the superior court files for the purpose of ascertaining whether this issue is moot.  (Evid. Code, §§  452, subd. (d); 459, subd. (a).)  Juan Sr. is not scheduled to be released from prison until May 2008 and as of January 12, 2007, has not yet appeared in the action.  Accordingly, we reject the Agency's assertion that this issue is moot.

            A prisoner-parent has a due process right to have access to the courts and a meaningful opportunity to be heard.  (In re Jesusa V. (2004) 32 Cal.4th 588, 601.)  As long as the prisoner-parent has meaningful access to the court through appointed counsel, however, there is no due process violation.  (Id. at p. 602.)  Citing Penal Code section 2625, Juan Sr. argues that he also had a statutory right to be present at the dependency hearings.  This statute, however, does not apply to prisoners in federal custody, and a juvenile court is permitted to proceed with dependency hearings without federally incarcerated parents in attendance (In re Maria S. (1997) 60 Cal.App.4th 1309, 1312) and there is no due process violation where the federal prisoner-parent is represented by counsel.  (In re Jesusa V., supra, 32 Cal.4th at p. 626.)

            Throughout these proceedings, Juan Sr. has been represented by counsel.  At the May settlement conference, the juvenile court indicated it was comfortable going forward without Juan Sr.'s presence because nothing in the petitions related to him.  The juvenile court accepted certain evidence without objection, made a true finding on the sole allegation pertaining to Daisy and continued the disposition hearing to again allow Juan Sr. an opportunity to appear.  When Juan Sr. did not appear for the June disposition hearing, the juvenile court denied counsel's requested continuance, noting that Juan Sr. was not due for release until 2008.  The juvenile court then declared the children to be dependents, ordered Daisy to comply with her reunification plan and allowed Juan Sr. leave to place any of the dispositional issues back on calendar.  Since then, the juvenile court has entered judgments of paternity for Juan Sr. and ordered that reunification services be provided to him.

            On this record, Juan Sr. has not shown a due process violation.  Even assuming Juan Sr. had a statutory right to attend the disposition hearing, he has not explained how his presence would have changed the court's rulings.  Because he was in custody during the period in question, he was unable to present any admissible testimony regarding the allegation concerning Daisy and his inmate status prevented him from providing for the children's care.

            With that said, however, we are disturbed by the fact that as of the June disposition hearing, Juan Sr.'s counsel stated that she had not yet spoken to him even though she had been counsel of record for about three months.  Counsel did not explain why she had not yet spoken to her client or whether she has tried to communicate with him telephonically or through correspondence and thus we cannot ascertain whether this failure is the fault of counsel or prison officials.  While Juan Sr.'s due process right may not necessary include the right to be personally present (In re Jesusa V., supra, 32 Cal.4th at p. 626), it does require the opportunity to be heard.  (In re Josiah H. (2002) 102 Cal.App.4th, 403, 412.)  Accordingly, the presence and activity of counsel at future hearings may not be sufficient to protect Juan Sr.'s rights unless counsel actually communicates with him.

III.  Application of ICWA

            ICWA establishes minimum federal substantive and procedural standards to protect the interest of an Indian child and promote the stability and security of Indian tribes and families.  (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.)  Juvenile courts and county welfare departments have an affirmative and continuing duty to inquire whether a child for whom a petition under section 300 has been filed may be an Indian child and " [a]t the first appearance by a parent or guardian in any dependency case  .  .  .  the parent  .  .  .  must be ordered to complete form JV-130, Parental Notification of Indian Status."   (Cal. Rules of Court, rule 5.664(d)(3).)  When the juvenile court has reason to believe that a child may be an Indian, notice must be given to the particular tribe in question or the Bureau of Indian Affairs on behalf of the Secretary of the Interior.  (25 U.S.C. §  1912(a); 25 C.F.R. §  23.11(c)(12); In re Desiree F. (2000) 83 Cal.App.4th 460, 471.)

            Here, the juvenile court determined that ICWA did not apply at the March detention hearing after Daisy stated that she and Juan Sr. had no Indian heritage, the paternal grandfather stated that his family had no Indian heritage and Juan Sr.'s correctional counselor reported that Juan Sr. had no Native American heritage.  The juvenile court made a second finding that ICWA did not apply at the June disposition hearing.  Juan Sr. contends the court erred in finding that ICWA did not apply because it failed to obtain the required JV-130 form, a paternity questionnaire or any information regarding the heritage of the children's maternal grandmother.  The Agency asserts Juan Sr. forfeited the issue by not raising it below, there was no error and the issue is now moot because the court has since made a third finding that ICWA did not apply.

            As a threshold matter, we reject the Agency's argument that Juan Sr. forfeited this issue by not raising it below.  The notice requirements of ICWA serve the interests of the Indian tribes and cannot be waived by the parent.  (In re Suzanna L. (2002) 104 Cal.App.4th 223, 231-232.)  We also reject the Agency's assertion that the issue is moot based on the juvenile court's third finding in November 20 that ICWA did not apply.  At this time, the juvenile court had before it conflicting information about the possible Indian heritage of the children's paternal grandmother consisting of parentage questionnaires from Juan Sr. indicating he had no American Indian heritage and Juan Sr.'s statement to the social worker that his mother was part of the Tadumanda tribe, possibly affiliated with the Apache tribes.

            Although the propriety of the juvenile court's third finding is not before us, we have augmented the record to include the documents that it relied on in making that finding and have reviewed the superior court files for the purpose of ascertaining whether this issue is moot.  (Evid. Code, §§  452, subd. (d); 459, subd. (a).)  We take judicial notice that as of January 12, 2007, a completed a JV-130 form is not in the superior court files.  Hence, we conclude that the ICWA issue is not moot because the error is capable of repetition.  When the court made its first and second findings that ICWA did not apply, it did not have parentage questionnaires from Juan Sr. or any information regarding the heritage of the children's paternal grandmother.  Accordingly, the juvenile court erred in concluding that ICWA did not apply because it had an inadequate factual basis for its findings.

            ICWA must be liberally construed because it was " designed to protect Indian children and tribes notwithstanding the parents' inaction.  [Citations.]"   (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 258.)  Any " hint" that a child has Indian heritage requires that notice be given.  (Ibid.)  The burden is on the Agency to obtain all possible information about the children's potential Indian background and to provide that information to the Bureau of Indian Affairs.  (In re Louis S. (2004) 117 Cal.App.4th 622, 630.)

            On remand, the juvenile court must direct the Agency to use reasonable efforts to inquire and comply with the notice provisions of ICWA.  After proper inquiry is made and proper notice is given, if any tribe, or the Bureau of Indian Affairs, comes forward and asserts that the children are Indian children, the juvenile court must vacate its jurisdictional and subsequent orders.  (25 U.S.C. §§ 1912(a), 1914.)  On the other hand, if the court finds that the children are not Indian children, it shall not be required to apply ICWA's heightened standards.  (In re Francisco W. (2006) 139 Cal.App.4th 695 704-710 [remand limited to ensuring proper ICWA notice and proceeding in accordance with any responses].)

DISPOSITION

            The Agency's motion to dismiss the entire appeal as moot is denied.  The March 22, 2006 and June 7, 2006 findings regarding application of ICWA are reversed and the matter is remanded to the juvenile court with directions to comply with the notice provisions of ICWA.  Accordingly, the June 7, 2006 dispositional orders are reversed.  If, after proper inquiry and notice, no response is received from a tribe or the Bureau of Indian Affairs indicating the children are Indian children, all previous findings and orders shall be reinstated.  If a tribe or the Bureau of Indian Affairs determines that the children are Indian children, or if other information is presented to the juvenile court that suggests the children are Indian children as defined by ICWA, the juvenile court must vacate its jurisdictional and subsequent orders (25 U.S.C. §§  1912(a), 1914) and conduct new hearings in conformity with all provisions of ICWA.

McINTYRE, J.

WE CONCUR:

                       HALLER, Acting P. J.

                                          IRION, J.

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