In re K.M., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. B.O. et al., Defendants and Appellants.
No. G051656
Fourth Dist., Div. Three
Nov. 20, 2015
450
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant B.O.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant W.M.
Leon J. Page, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Minor.
OPINION
O‘LEARY, P. J.—B.O. (Mother) and W.M. (Father) appeal from the juvenile court‘s order terminating their parental rights to their three-year-old daughter, K.M. The sole issue raised on appeal concerns the Orange County Social Services Agency‘s (SSA) lack of inquiry regarding K.M.‘s American Indian heritage as required by the Indian Child Welfare Act of 1978 (ICWA;
With its briefing on appeal, SSA filed a motion asking us to consider evidence of that hearing and the juvenile court‘s order concerning SSA‘s ICWA investigation and remedial efforts at notification. SSA contends we must dismiss this appeal because Mother‘s and Father‘s issues on appeal were rendered moot by the postjudgment activities. We disagree. The trial court
I
A. ICWA Violation
SSA concedes that at Mother‘s first court appearance in March 2014, she informed the juvenile court she may have American Indian heritage through her maternal grandmother, Marlene W. The court ordered SSA to investigate the matter. It failed to do so.
In SSA‘s subsequent reports dated May 20, 2014, and September 23, 2014, the social worker stated the ICWA “may apply” but also noted Mother denied American Indian heritage in prior child abuse investigations. In December 2014, after the
Mother and Father filed separate notices of appeal, and their opening briefs filed in early June 2015 raised the issue of inadequate notice and violations of the ICWA. In its briefing, SSA concedes there was inadequate notice and violations of the ICWA. Indeed, the record reflects there was no notice or investigation before judgment was entered. Accordingly, the juvenile court‘s order terminating parental rights is reversed and the matter is remanded to the juvenile court with directions to order SSA to provide the appropriate tribes with proper notice of the proceedings under the ICWA. If, after receiving notice under the ICWA, no tribe indicates K.M. is an Indian child within the meaning of the statutory scheme, then the juvenile court shall reinstate the order terminating parental rights. In all other respects, the judgment is affirmed.
B. Motions
On September 11, 2015, SSA filed its respondent‘s brief, making extensive references to the information contained in its concurrently filed motion to
In its motions, SSA asserted it now possessed documentation and reports that resolved the parents’ ICWA concerns and, thus, rendered the appeal moot. SSA explained it “reinitiated ICWA inquiry and notice efforts” in July 2015 (after Mother and Father filed their opening briefs in this appeal) and the trial court reappointed counsel for both parents for the limited purpose of ICWA notices and findings. On August 31, 2015, SSA filed the ICWA documentation it sent to several tribes along with copies of the return receipts. It supplied response letters from several Cherokee tribes declining K.M. for tribal membership.
SSA attached several supporting documents to its motion. First SSA provided a copy of the juvenile court‘s minute order, dated July 10, 2015, containing the following statements: (1) the court read, considered, and signed a “third page stipulation submitted this date“; (2) the court makes orders and findings pursuant to the stipulation; (3) “Due to inadvertence, ICWA findings were not properly made in this matter“; (4) the court schedules an ICWA compliance and findings hearing for July 16, 2015; and (5) the court reappoints counsel to represent the parents. A copy of the stipulation referred to in the order is not attached as an exhibit to SSA‘s 909 motion.
Second, SSA provided a copy of the juvenile court‘s minute order dated August 31, 2015. The minute order stated that at the “first call” the court noted the ICWA was not previously addressed, documentation had been filed, and notice was given to all appropriate tribes. The court determined the ICWA did not apply. The minute order next indicated Mother‘s counsel requested a “second call” of the matter. During the second call Mother‘s counsel requested the court “vacate” the previous order regarding the ICWA and continue the matter one day because the matter was “currently under appeal.” The court agreed to suspend the order the ICWA did not apply and trailed the hearing to the following day.
The minute order dated September 1, 2015, stated the juvenile court considered argument. The order added, “counsel for Mother objects to the court making any further orders regarding ICWA [pursuant to
Finally, in support of the motion, county counsel, Mark Sanchez, submitted a declaration stating he represented SSA in the trial court, and parents did not challenge “the sufficiency or content of SSA‘s renewed notice efforts” but focused their arguments on the nature of the proceedings. Sanchez declared the parents objected to the ICWA findings on the grounds the ruling was improperly made after termination of parental rights and while an appeal was pending.
The parents filed separate motions opposing SSA‘s motions. Mother‘s counsel asserted postjudgment evidence is generally rejected by a reviewing court. (In re Zeth S. (2003) 31 Cal.4th 396, 405.) In addition, Mother maintained SSA‘s ICWA evidence is insufficient to prove the appeal is moot: “It is alarming that missing from the [postjudgment] evidence were the reporter‘s transcripts” for the August 31 and September 1 hearings. Counsel maintains the legal arguments made on the record both days should have been disclosed.
Mother‘s counsel speculates, “What is also apparent is that [SSA] is attempting to do anything it can to avoid a reversal by this [c]ourt. [SSA] concedes ICWA notice was not sent as required by law... If [SSA] wanted to remedy this issue in the fastest most efficient manner, [SSA] should have stipulated to a limited ICWA reversal, and an expedited remittitur. The solution attempted by [SSA] deprives the parents and child of due process because they will be deprived [of] oversight or review by this [c]ourt as to the adequacy of the new ICWA investigations and notices. SSA already got it wrong at least one time in this case.” Counsel argued the ICWA notices were missing important information and were inadequate. Counsel explained this court cannot review the objections or argument made at the hearing because no reporter‘s transcripts were provided. Finally, counsel asserted the juvenile court lacked jurisdiction to hear the ICWA issue while it was on appeal. Father‘s counsel raised the same objections and added it would be improper for this court to take judicial notice or accept the new evidence.
The first issue we must decide is whether the new evidence can be reviewed by this court and by what mechanism. SSA seeks to augment the record with events occurring six months after the termination order, creating a new record rather than completing the appellate record is this case. The request to augment with a new record is inappropriate. “Augmentation does not function to supplement the record with materials not before the trial court. [Citations.] Rather, normally ‘when reviewing the correctness of a trial
Similarly, taking judicial notice is not a viable solution. Reviewing courts generally do not take judicial notice of evidence not presented to the trial court absent exceptional circumstances. (Vons, supra, 14 Cal.4th at p. 444, fn. 3.) Moreover, judicial notice may be taken of the existence of court documents but not the truth of factual findings made in other court rulings. (See Johnson & Johnson v. Superior Court (2011) 192 Cal.App.4th 757, 768.)
As explained in In re Ronald V. (1993) 13 Cal.App.4th 1803, 1806-1807 (Ronald V.), if the juvenile court considers a collateral dispute of a termination order, any resulting action will be deemed void as an act in excess of the court‘s jurisdiction. In that case, the mother agreed to the termination of her parental rights on the understanding the prospective adoptive father would permit the mother to continue her relationship with the child. After the adoptive father died, the mother filed a petition for modification of the order terminating her parental rights. (Id. at p. 1805.) The juvenile court denied the petition. (Ibid.) The appellate court held former
In its disposition of the appeal in Ronald V., the court held the juvenile court lacked jurisdiction to consider the petition and declared the order denying the petition void. (Ronald V., supra, 13 Cal.App.4th at p. 1807.) However, it did not dismiss the appeal because it determined the void order was appealable as on order after judgment. (Id. at p. 1807, fn. 2.) We apply the same reasoning here.
In the case before us, the juvenile court lacked jurisdiction to consider SSA‘s belated remedial ICWA efforts because it was in substance a collateral attack on the termination order. Compliance with the ICWA is required before terminating parental rights. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424 [“failure to provide the required notice requires remand“].) Moreover, if the new evidence revealed K.M. was an Indian child, as defined by the ICWA, the juvenile court would have been required to invalidate prior orders taken in violation of the ICWA, i.e., reverse the termination of parental rights. (In re Desiree F. (2000) 83 Cal.App.4th 460, 476.)
As aptly noted by one treatise, Seiser and Kumli, California Juvenile Court Practice and Procedure (2015) section 2.125[2][b], page 2-380, “The single most common reason for reversal in dependency cases involving children who may be of Indian heritage is the failure of the social services department and the juvenile court to follow the California requirements for inquiry and notice to Indian tribes....” In other words, ICWA notice deficiencies are not a new issue for SSA. The most expeditious and efficient way to solve this problem is for the parties to stipulate to a limited reversal and an expedited remittitur.3
II
We conclude the juvenile court acted in excess of its jurisdiction in revisiting the termination order while the matter was being reviewed on3
Fybel, J., and Ikola, J., concurred.