79 Cal.App.5th 214
Cal. Ct. App.2022Background
- This appeal concerns termination of parental rights to three of Mother’s five children; parental rights were terminated after a section 366.26 hearing on September 10, 2021.
- At case intake (2018), parents filed Judicial Council ICWA-020 forms denying Indian ancestry; DCFS social workers later declared they had made Indian-child inquiries and concluded there was no known Indian ancestry, but the record did not show who was contacted.
- Mother appealed, arguing DCFS failed to inquire of extended family members (maternal grandparents, paternal grandmother, and unnamed paternal cousins) as required by ICWA inquiry duties.
- After the appeal was filed, DCFS submitted a last-minute information (LMI) dated February 14, 2022: a DCFS dependency investigator spoke with the maternal grandparents and the paternal grandmother in late January 2022, and each denied any Indian ancestry or tribal membership.
- The juvenile court issued minute orders on March 1, 2022 reiterating there was no reason to believe the children were Indian, but the appellate decision rests on the record and the LMI rather than those orders.
- The Court of Appeal, after considering the LMI as additional evidence under Code of Civil Procedure section 909, found the post-appeal inquiries rendered any earlier deficiency harmless and dismissed the appeal as moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DCFS satisfied its ICWA duty to inquire whether the children are Indian children | Mother: DCFS failed to contact relevant extended family (maternal grandparents, paternal grandmother, paternal cousins) and therefore did not satisfy ICWA inquiry duties | DCFS: Post-appeal investigation shows DI contacted maternal grandparents and paternal grandmother who denied Indian ancestry; any prior failure is harmless | The court accepted the LMI under CCP §909, found DCFS’s post-appeal inquiries sufficient, and dismissed the appeal as moot |
| Whether the appellate court may consider postjudgment evidence under CCP §909 to resolve mootness in a dependency appeal | Mother: Opposed consideration of additional evidence under §909 and disputed court’s March 1 orders made without counsel | DCFS: §909 allows appellate courts to take additional evidence in juvenile cases to expedite finality; LMI admissible | The court held it may consider postjudgment evidence under §909 in dependency appeals and did so here to find the appeal moot |
Key Cases Cited
- In re Zeth S., 31 Cal.4th 396 (2003) (explains §909 discretion should be exercised sparingly)
- In re Josiah Z., 36 Cal.4th 664 (2005) (appellate courts may consider postjudgment evidence in dependency cases to expedite finality)
- In re A.B., 164 Cal.App.4th 832 (2008) (appellate courts may accept evidence to promote just and final resolution for children)
- In re K.M., 242 Cal.App.4th 450 (2015) (postjudgment evidence can show mootness in dependency appeals)
- In re A.M., 47 Cal.App.5th 303 (2020) (social workers are not required to "cast about" for investigative leads to satisfy inquiry duties)
- In re Benjamin M., 70 Cal.App.5th 735 (2021) (failure to contact an extended family member is harmless when that person is not readily available)