Orange Cnty. Soc. Servs. Agency v. B.O. (In re K.M.)

• Decision Date: 20 November 2015
• Docket Number: G051656
• Citation: 195 Cal.Rptr.3d 126,242 Cal.App.4th 450
• Court: California Court of Appeals Court of Appeals
• Parties: 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.

242 Cal.App.4th 450

195 Cal.Rptr.3d 126

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.

G051656

Court of Appeal, Fourth District, Division 3, California.

Filed November 20, 2015

Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant B.O.

Roni Keller, Sherman Oaks, 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 the 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 Orange County Social Services' (SSA) lack of inquiry regarding K.M.'s American Indian heritage as required by the Indian Child Welfare Act (ICWA). SSA admits it failed to comply with the ICWA requirements. Rather than stipulating to a limited reversal and having the matter returned to the trial court for further proceedings, SSA sought an immediate do-over in the trial court while the matter was still pending on appeal.

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 and Father's issues on appeal were rendered moot by the postjudgment activities. We disagree. The trial court lacked jurisdiction to rule on the ICWA issue following its termination of parental rights. (Welf. & Inst. Code, § 366.26, subd. (i)(1).)¹ Because the juvenile court's postjudgment ICWA order is void, this appeal is not moot. And due to the undisputed ICWA violations, we order a limited reversal of the judgment and remand the matter for further proceedings.

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 ICWA "may apply" but also noted Mother denied American Indian heritage in prior child abuse investigations. In December 2014, after the section 366.26 hearing (hereafter .26 hearing) was scheduled, SSA prepared a report stating ICWA did not apply. In a status review report prepared one month before the .26 hearing, in February 2015, the social worker again noted ICWA did not apply. At the .26 hearing held on March 18, 2015, the juvenile court did not mention ICWA in its minute order terminating parental rights.

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 ICWA. In its briefing, SSA concedes there was inadequate notice and violations of 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 ICWA. If, after receiving notice under 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 augment the record and take additional evidence, and dismiss the appeal as moot. For reasons we now explain, we grant the Code of Civil Procedure section 909 motion to take additional evidence (hereafter 909 motion), deny the motion to augment, and deny the motion to dismiss the appeal.

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 a 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 "first call" the court noted ICWA was not previously addressed, documentation had been filed, and notice was given to all appropriate tribes. The court determined 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 ICWA and continue the matter one day because the matter was "currently under appeal." The court agreed to suspend the order 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 section] 366.26 [, subdivision] (i)(1), as stated on the record." Father's counsel joined in the objections. The minute order stated the court heard argument from minor's counsel and county counsel "as stated on the record." The court lifted the temporary suspension of the ICWA orders and restated its finding ICWA does not apply. SSA did not provide a copy of the reporter's transcript describing the exact nature of the arguments, objections, and discussions made at either postjudgment hearing.

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, 2 Cal.Rptr.3d 683, 73 P.3d 541.) 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.] [R]ather, normally ‘when reviewing the correctness of a trial court's judgment, an appellate court will consider only matters which were part of the record at the time the judgment was entered.’ [Citation.]" (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3, 58 Cal.Rptr.2d 899, 926 P.2d 1085 (Vons ).) The augmentation procedure cannot be used to bring up matters occurring during the pendency of the appeal because those matters are outside the superior court record. (See also Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2015) ¶ 5:134, p....