Opinion
E068000
12-11-2017
In re G.S. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. M.S., Defendant and Appellant.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. J268927, J68928, J68929 & J68930) OPINION APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Dismissed. Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
Defendant and appellant M.S., Sr. (father) appeals from the juvenile court's order transferring this dependency proceeding to the tribal court for the Picuris Pueblo of New Mexico pursuant to the Indian Child Welfare Act (ICWA). He contends the juvenile court erred in transferring the case and in failing to order that notice be provided to the Osage Nation. He further asserts that the court should not have transferred the proceeding until after it had taken jurisdiction. Plaintiff and respondent San Bernardino County Children and Family Services (CFS) concedes error in failing to notice the Osage Nation and in transferring the proceeding, but argues that the court was not required to take jurisdiction prior to transfer. Notwithstanding the asserted errors, CFS contends the appeal must be dismissed for lack of jurisdiction. We agree that the trial court erred and that the appeal must be dismissed for lack of jurisdiction.
I. FACTUAL AND PROCEDURAL BACKGROUND
Only the facts relevant to the issues raised on appeal will be provided.
On January 4, 2017, CFS initiated dependency proceedings on behalf of M.S., Jr. (born in 2011), A.S. (born in 2013), B.S. (born in 2014), and G.S. (born in 2015). It was alleged that B.S. sustained marks and bruises consistent with being physically abused, both parents had histories of substance abuse, and father's current whereabouts were unknown, leaving the children without appropriate provisions for care. An attachment to the petitions indicated the children may be members of the Osage Nation.
The social worker interviewed the mother and maternal grandmother, but was unable to locate the father. The maternal grandmother stated that the Picuris Pueblo New Mexico Tribe would be involved in this detention. At the January 5, 2017, detention hearing, Deborah King, ICWA Director for the Picuris Pueblo Tribe in New Mexico, appeared telephonically and indicated that the tribe intended to intervene. She informed the court that mother is a member the tribe, and that the tribe "ha[d] already started processing the children" for enrollment. The juvenile court made a prima facie finding and detained the children out of home. The court ordered the parents to "reveal membership in an Indian tribe."
The jurisdiction and disposition report was filed on January 24, 2017. The social worker had met with father on January 10, 2017. As of June 1, 2016, family law orders gave sole legal and physical custody of the children to mother. Due to his substance abuse addiction, father was homeless. CFS reported that it would be detrimental to return the children to the custody of either parent because one of the children had been abused while in mother's custody; mother had no close family in the area except the maternal grandmother, who recently had relocated from New Mexico to help mother; father had failed to complete the family reunification services in the prior dependency proceeding; and his family stated they were no longer willing to support him until he committed to completing a sobriety program. However, father stated that he would like the children placed with their paternal aunt, who is a licensed foster parent and had placement of the children during their previous dependency. Mother indicated she is not comfortable with the children being placed with the paternal aunt.
The social worker spoke with Ms. King, who stated that she would remain in contact with CFS and "the tribe would be able to locate appropriate relatives, should reunification efforts for the mother fail . . . ." The children's older half brother resides in a tribal home in New Mexico. The paternal aunt, paternal grandfather and step-grandmother, and maternal grandmother were informed of their right to attend the jurisdiction/disposition hearing. On January 26, 2017, father filed a parental notification of Indian status, stating that he may have "Old Sage Cattle" ancestry.
On February 6, 2017, two of the children were moved to the paternal aunt's home. On February 22, 2017, father was not present at the jurisdiction/disposition hearing; however, he was represented by counsel. His counsel informed the juvenile court, "It is my understanding that the tribe will be intervening," and that she did not think there was much she could do. Ms. King appeared telephonically and informed the court that the tribe would be filing a petition for jurisdiction. The parties discussed the amount of time needed to prepare and file the paperwork, and the court set a date of March 8, 2017, as the next hearing.
When the juvenile court called the tribe and asked to speak to the ICWA Director, the person who answered the phone identified the director as Deborah Shemayme. However, Ms. King answered the court's call and identified herself as being the "Indian Child Welfare Act Director for the Pueblo [T]ribe."
On February 27, 2017, the Picuris Pueblo Tribe sent a letter to the juvenile court requesting jurisdiction over the children "who are enrolled members of the Pueblo of Picuris."
On March 8, 2017, father's counsel objected to the case being transferred to the tribe's jurisdiction on the grounds that (1) "the life of this case is pretty old" because there have been a couple removals; (2) removing the children to New Mexico would be a "great disservice and disadvantage because he wouldn't be able to present any evidence"; (3) it is in the best interest of the children to remain with the paternal aunt in an Indian home; and (4) transferring the children to New Mexico is "self-serving because that tribe [is] all [mother's] entire family." CFS replied that in the last dependency case involving the children, father's reunification services were terminated because he did not participate. CFS and mother agreed with the case being transferred, and the children's counsel submitted on the issue. The juvenile court denied father's request, finding that father could appear in New Mexico by phone, Skype, or in person, and could present the necessary facts. The court authorized the tribe to pick up the children and transport them to New Mexico, and continued the jurisdiction/disposition hearing to March 29, 2017. Father requested visitation after the children are moved, but the court noted that its jurisdiction would end when the children left California.
II. DISCUSSION
Father contends the juvenile court erred in transferring the case and in failing to order notice be provided to the Osage Nation. Father asks this court to reverse the transfer order, assume jurisdiction, and remand for proper ICWA notice. CFS requests, over father's objection, that this court take judicial notice of the April 26, 2017, juvenile court minutes. The minutes indicate that the dependency case was dismissed after the juvenile court received notice of intervention from the Picuris Pueblo tribe. Based on this subsequent event, CFS contends the appeal must be dismissed as moot, because the transfer of the case to the tribal court divests both this court and the juvenile court of any further jurisdiction in the matter. We agree.
"[D]ependency counsel have a duty to bring to the appellate court's attention postappellate rulings by the juvenile court that affect whether the appellate court can or should proceed to the merits." (In re N.S. (2016) 245 Cal.App.4th 53, 57.) Because the postappellate ruling by the juvenile court affects the merits of this appeal, CFS's request for judicial notice is granted. (Evid. Code, §§ 452, subd. (d), 459.)
On June 30, 2017, Craig Quanchello, Governor of Pueblo of Picuris, served an affidavit on this court for the "purpose of clarifying several errors in the Appellant's Opening Brief . . . ." Father objects to this court considering the contents of the affidavit because it contains "post-judgment evidence." Because resolution of this matter does not hinge on the contents of the affidavit, we decline to take judicial notice of it.
As a general rule, it is a court's duty to decide "'"actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it."'" (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541.) "An appellate court will dismiss an appeal when an event occurs that renders it impossible for the court to grant effective relief." (In re N.S., supra, 245 Cal.App.4th at pp. 58-59.) "[T]he critical factor in considering whether a dependency appeal is moot is whether the appellate court can provide any effective relief if it finds reversible error." (Id. at p. 60.)
In this case, CFS argues that In re M.M. (2007) 154 Cal.App.4th 897 (In re M.M.) is instructive. In that case, a dependency petition filed on behalf of a child noted that he may have Indian ancestry. (Id. at p. 901.) His mother and presumed father were members of the Hoopa Valley Tribe. (Ibid.) Further investigation led to four different tribes being noticed: Hoopa Valley, Karuk, Yurok, and Pomo tribes. (Id. at p. 902.) The Hoopa Valley Tribe requested, and was granted, the right to intervene. (Ibid.) At the contested six-month review hearing, the court terminated the parents' reunification services and set a Welfare and Institutions Code section 366.26 hearing. (In re M.M., supra, at p. 902.) Prior to the hearing, M.T., a previously unknown individual and member of the Karuk Tribe, claimed to be the child's father. (Id. at pp. 902-903.) The Hoopa Valley tribe performed paternity testing, confirming that M.T. was the child's father. (Id. at p. 903.) The Karuk Tribe sought intervention and transfer of the case, and the Hoopa Valley Tribe filed notice of withdrawal of intervention. (Id. at pp. 903-904.) No party disputed that the child was the biological child of a member of the Karuk Tribe or refuted the blood test results. (Id. at p. 904.) The juvenile court confirmed the Karuk Tribe's right to intervene. (Ibid.) After various continuances and motions, the court set aside its earlier order terminating parental rights and granted the motion to transfer the case to the Karuk Tribal Court. (Id. at pp. 904-905.) No request for a stay was made any party; however, the child appealed the juvenile court's orders. (Id. at p. 905.)
On appeal, the child challenged a number of the juvenile court's rulings, including the order transferring the case to the Karuk Tribal Court. (In re M.M., supra, 154 Cal.App.4th at pp. 905-906.) After examining the provisions in the ICWA concerning transfer of a case to the tribe, the status of Indian tribes as sovereign entities, and the case law addressing the review of transfer orders under the ICWA, the appellate court determined that the transfer of the case deprived the juvenile court of any further jurisdiction to act. (In re M.M., supra, at pp. 907-913.) The court relied heavily upon the federal court decision in Comanche Indian Tribe v. Hovis (W.D. Okla. 1994) 847 F.Supp. 871 (Hovis), reversed on other grounds (10th Cir. 1995) 53 F.3d 298, in conjunction with an analogy to the removal of actions from state court to federal court under title 28 United States Code section 1446. (In re M.M., supra, at pp. 911-913.) In Hovis, the "non-Indian" mother sought reversal of a state court order transferring a dependency case to a tribal court over her objection. (Hovis, supra, at pp. 873-874.) The state court reversed, and the Indian tribe sought relief in federal court seeking a declaration that the tribe possessed exclusive jurisdiction over the dependency proceedings. (Id. at pp. 874-875.) The federal court concluded that because the record already had been transferred and the tribal court asserted jurisdiction, the state court had no jurisdiction to reconsider and vacate the transfer order, and its vacation of that order was void for lack of jurisdiction. (Id. at p. 887.)
Applying the reasoning of Hovis and case law concerning removal of actions, the court in In re M.M. concluded that the juvenile court lost jurisdiction over the child's dependency proceedings "once the case was transferred to the Karuk Tribal Court and the latter court accepted jurisdiction." (In re. M.M., supra, 154 Cal.App.4th at p. 913.) The court further stated that "[e]ven if we were to find that the juvenile court erred on the merits (a question we do not reach), we would be unable to grant effective relief to [the child]." (Ibid.)
The holding in In re. M.M. is directly applicable to the case before this court. The transfer order issued by the juvenile court was effected, the case was transferred to the Picuris Pueblo tribal court, and the children were transported to the tribe. No stay of the transfer orders was requested by either father's or the children's counsel or ordered by the juvenile court. Rather, the dependency case was dismissed by the court. Therefore, neither this court nor the juvenile court has any further jurisdiction. Even though we agree that the juvenile court erred in failing to notice any of the Indian tribes and in transferring the case to the Picuris Pueblo tribal court over father's objection, if we order a reversal of the transfer order, no effective relief could be gained at the juvenile court level. The juvenile court has lost jurisdiction over this dependency case and, therefore, has no power to compel the tribal court to return the case to the California courts.
We dismiss the appeal for lack of jurisdiction.
III. DISPOSITION
The appeal is dismissed for lack of jurisdiction.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: SLOUGH
J. FIELDS
J.