Santa Clara Cnty. Dep't of Family & Children's Servs. v. M. J. (In re L.D.)
Santa Clara Cnty. Dep't of Family & Children's Servs. v. M. J. (In re L.D.)
Opinion of the Court
*580The Indian Child Welfare Act (ICWA;
The Santa Clara County Department of Family and Children's Services filed a juvenile dependency petition on behalf of nine-year-old L.D. At the initial detention hearing mother informed the court of Native Alaskan ancestry. She identified a possible affiliation with "Doyon-Alaska," and related that her mother (L.D.'s maternal grandmother) knew more about the ancestry.
At the jurisdictional and dispositional hearing, the Department reported that it had investigated the ICWA matter and sent notice of the dependency proceedings to a tribe in Alaska. According to the social worker's report, L.D.'s maternal grandmother reported having Eskimo heritage, mentioning "the Doyon tribe as well as Tanachief." The notice, identifying L.D. as possibly Athabascan Indian, was sent in November 2017 to the Native Village of Tanana in Alaska, the Bureau of Indian Affairs in Sacramento, and the Secretary of the Interior in Washington, D.C. Receiving no objections from the parties, the court found the notice satisfied ICWA.
The court found true the allegations in the petition that mother had sexually abused L.D.; had failed to protect L.D. from sexual abuse by mother's boyfriend; had physically attacked her father (L.D.'s maternal grandfather) in the presence of L.D., and during that altercation mother's boyfriend had brandished and threatened the maternal grandfather with a handgun.
L.D. was declared a dependent of the court. She was removed from mother's custody and ordered into the custody of the Department, with the expectation she would be placed with the maternal grandfather who had been caring for her informally for several years. Mother waived her right to reunification services, and the court set a selection and implementation hearing under Welfare and Institutions Code section 366.26. The juvenile court advised mother, who was in custody facing criminal charges related to the circumstances alleged in the dependency petition, that the right to appellate review was by extraordinary writ to be filed within seven days, and personally served mother with a copy of the writ advisement.
*582Following the hearing, the court issued a three-year juvenile restraining order protecting L.D. from mother. The court found that mother had intentionally or recklessly caused or attempted to cause bodily injury and sexual assault on L.D., and had caused L.D. reasonable apprehension of imminent serious bodily injury. The restraining order prohibited mother from having a gun and required mother to sell or surrender any gun within her immediate possession or control. Having found that mother had possessed or had access to a handgun before her arrest, the court set a gun surrender hearing. At that hearing held on January 12, 2018, the court found that mother owned or had access to a gun and failed to show the gun had been surrendered or confiscated, in violation of the juvenile restraining order. Given mother's custody status, the court noted its willingness to revisit the matter after mother's release if she were to provide evidence of the gun's surrender.
Mother filed a timely notice of appeal from the order following the gun surrender hearing, identifying the court's finding that she had access to a firearm in violation of the restraining order as the basis for her appeal. But her briefing in this court does not address the restraining order or its conditions. Instead mother challenges the juvenile court's December 5, 2017 finding regarding ICWA compliance, and the Department concedes (without giving reasons) that its November 2017 notice was insufficient. Mother argues in supplemental briefing that her ICWA challenge *896is timely. L.D. views mother's ICWA challenge as timely, but argues that the Department's November 2017 notice was proper. L.D. also has requested judicial notice of three ICWA notices (sent in August, September, and October 2018) for the selection and implementation hearing, and contends mother's appeal is moot in light of those notices.
II. DISCUSSION
A. TIMELINESS
Relying on In re Isaiah W . (2016)
In Isaiah our Supreme Court addressed whether a parent who does not timely appeal a juvenile court order that includes a finding of ICWA inapplicability may still challenge that finding on appeal from a later order terminating parental rights. ( Isaiah , supra , 1 Cal.5th at p. 6,
Explaining why the parent's challenge was timely, the Isaiah court emphasized that the parent was not challenging the juvenile court's ICWA finding from the jurisdiction and disposition hearing, but was challenging a finding of ICWA inapplicability foundational to the order terminating parental rights. ( Isaiah , supra , 1 Cal.5th at p. 10,
In contrast, the order made at the gun surrender hearing here is not premised on any ICWA finding. Although we are mindful of the juvenile court's continuing duty to comply with ICWA ( Welf. & Inst. Code, § 224.2, subd. (a) ; Isaiah , supra , 1 Cal.5th at pp. 10-11,
Dwayne P. v. Superior Court (2002)
B. MOOTNESS
L.D. argues that mother's appeal is moot because the Department sent amended ICWA notices based on new information concerning her possible *584Indian ancestry. (L.D. has asked us to take judicial notice of the second, third, and fourth amended ICWA notices of the selection and implementation hearing which were sent in August, September, and October 2018. We will grant the request, which is unopposed.) Relying on In re Louis S . (2004)
Given our determination that the appeal is untimely, we need not decide whether it is also moot. But the Department's concession that its November 2017 notice was deficient and its apparently ongoing efforts to provide additional tribal notice will require the juvenile court to revisit its ICWA finding before proceeding with the selection and implementation hearing (set for February 22, 2019 according to the register of actions in this matter, of which we take judicial notice on our own motion [ Evid. Code, §§ 452, subd. (d), 459 ] ). ( In re Louis S ., supra , 117 Cal.App.4th at p. 634, fn. 9,
III. DISPOSITION
L.D.'s request for judicial notice is granted.
The appeal is dismissed.
WE CONCUR:
GREENWOOD, P. J.
ELIA, J.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.