Filed 9/13/23 In re P.B. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re P.B. et al., Persons Coming B323390
Under the Juvenile Court Law.
______________________________ Los Angeles County Superior
LOS ANGELES COUNTY Court No. 22CCJP01323A-B
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
B.B.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Linda L. Sun, Judge. Affirmed in part and dismissed in
part.
Robert McLaughlin, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Stephen Watson, Senior Deputy
County Counsel, for Plaintiff and Respondent.
____________________
Six months after a mother moved her young daughters
from Texas to California, the Los Angeles Department of
Children and Family Services initiated dependency proceedings.
By then, the girls’ father was incarcerated in Texas for failing to
register as a sex offender.
The California juvenile court eventually assumed
jurisdiction over the children, declared them dependents,
removed them from parental custody, and denied the father
visitation and reunification services. The father appealed, but
not the mother.
Regarding the father, the juvenile court sustained
allegations the father had sexually abused both girls, including
one occasion where he taped one daughter’s mouth closed,
“fondled the child’s vagina and buttocks with [his] fingers” and
tried to lick her there, and another occasion where he penetrated
his other daughter’s vagina with a coat hanger.
The father’s appeal challenges none of these findings.
Instead, the father contends the juvenile court’s acts exceeded its
authority because the court did not comply with the Uniform
Child Custody Jurisdiction and Enforcement Act (Fam.
Code, § 3400 et seq.) (UCCJEA). He also claims, as to various
paternal relatives, the court and the Department violated their
inquiry duties under the Indian Child Welfare Act (25 U.S.C. §
1901 et seq.; Welf. & Inst. Code, § 224 et seq.) (ICWA). We affirm
regarding the former claim and do not reach the second because
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it is moot. Undesignated statutory citations are to the Family
Code.
I
The UCCJEA determines the proper forum for child
custody proceedings when multiple interested states are involved.
It applies to dependency proceedings whenever a California court
must make an initial or modified custody determination. (In re
L.C. (2023) 90 Cal.App.5th 728, 735 (L.C.); A.M. v. Super. Ct.
(2021) 63 Cal.App.5th 343, 350 (A.M.).)
California courts have jurisdiction to make an initial
custody determination if California is the child’s home state—
meaning the child has lived with a parent there for at least six
consecutive months immediately before the proceedings.
(§§ 3421, subd. (a)(1), 3402, subd. (g)); L.C., supra, 90 Cal.App.5th
at p. 736.) The father concedes California was the children’s
home state when these dependency proceedings began.
A California court may modify another state’s custody
determination if it has jurisdiction to make an initial
determination as just explained and the court of the other state
determines it no longer has exclusive, continuing jurisdiction or
California would be a more convenient forum. (§ 3423, subd. (a);
A.M., supra, 63 Cal.App.5th at p. 353 fn.7.)
Substantial evidence shows this is what happened here.
(See A.M., supra, 63 Cal.App.5th at p. 351 [findings of fact made
in determining jurisdiction under the UCCJEA subject to
deferential substantial evidence standard].) The juvenile court
had jurisdiction over these children.
The father says there were earlier custody orders in Texas
family court but concedes “[t]he record on appeal does not contain
any documents pertaining to the Texas family court orders.”
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Nevertheless, the juvenile court recognized there might be
a UCCJEA issue at the April 2022 detention hearing and said it
was in the process of preparing a letter for the Texas court. At
the May 2022 arraignment hearing, the court noted it had
received a response from a representative of the Texas
Department of Family and Protective Services saying, among
other things, there were no open investigations in Texas, they
were not planning to assert jurisdiction, and “they are now
turning their records on the family over to California. Texas is
not the court of continuing jurisdiction, . . . .” This representative
followed up with an email confirming Tarrant County was not
asserting jurisdiction. The court commented: “so that’s the end
of that. So we are asserting jurisdiction in California.”
At the August 2022 adjudication hearing, the court
reported: “Texas has already relinquished jurisdiction to
California. I had received a written response from my
counterpart in Texas, and they are not assuming jurisdiction and
it is within the California court.” The California court and the
Texas court thus directly communicated with each other about
this issue.
The father notes the Family Code allows California courts
to communicate with courts of other states but generally requires
a record of substantive communications, notice to the parties, and
access to the communications. (See § 3410.) The father failed to
show the court did not comply with these provisions. (See
Jameson v. Desta (2018) 5 Cal.5th 594, 608–609 [we presume the
judgment is correct; appellant bears the burden of demonstrating
error].) The court alerted the parties it had a written
communication from its counterpart in Texas regarding
jurisdiction. Although this communication is not in our record,
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we do not infer error from its absence. (See id. at p. 609
[appellate court makes all presumptions in the trial court’s favor
absent a contrary showing in the record.)
Finally, in July 2023, the father asked this court to
augment the appellate record to include a June 2022 filing by the
Office of the Texas Attorney General entitled “Suit for
Modification of Support Order and Motion to Confirm Support
Arrearage.” We grant the request. The petition asserts the
Texas court has “continuing jurisdiction” of the children because
of prior proceedings. This pleading does not demonstrate the
Texas court had exclusive jurisdiction regarding custody at that
time. Nor does it demonstrate the California court erred when it
ruled it had jurisdiction under the UCCJEA. (See A.M., supra,
63 Cal.App.5th at p. 350 [UCCJEA covers custody and visitation
disputes]; § 3402, subd. (c) [child custody determination “does not
include an order relating to child support or other monetary
obligation of an individual”].)
II
The Department argues any issue regarding ICWA is moot
because the juvenile court returned the children to the mother’s
custody at a recent review hearing. The Department asks us to
receive the relevant minute orders from February 2023 as
additional evidence and notes they are proper for judicial notice.
The father opposes this request, arguing we may consider
such evidence only in “exceptional circumstances,” and California
courts are divided over the propriety of considering postjudgment
evidence to resolve an ICWA issue on appeal.
The father’s argument is incorrect. We routinely take
judicial notice of juvenile court decisions, including placement
orders, postdating challenged rulings in dependency proceedings.
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Indeed, “dependency 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.)
What courts have divided over is whether it is proper to
consider postjudgment evidence—such as declarations of counsel
or new social services agency reports—regarding remedial efforts
to comply with ICWA. (Compare, e.g., In re Kenneth D. (2022) 82
Cal.App.5th 1027, 1034, review granted Nov. 30, 2022, S276649
[augmented record showed the Department conducted an
appropriate ICWA inquiry after termination of parental rights]
with In re M.B. (2022) 80 Cal.App.5th 617, 627–628 [“a child
protective services agency cannot remedy a defective ICWA
investigation by conducting further interviews while the
termination order is being reviewed on appeal”].) That is the
issue pending before the Supreme Court. That issue is not
present here.
Contrary to the father’s arguments, In re Zeth S. (2003) 31
Cal.4th 396 (Zeth) does not mandate denying the Department’s
request. There our Supreme Court disapproved of appellate
courts routinely “solicit[ing] postjudgment evidence in order to
reopen and reconsider trial court findings and reverse the trial
court judgment.” (In re Josiah Z. (2005) 36 Cal.4th 664, 676
[citing Zeth, supra, 31 Cal.4th at p. 413]; see also ibid. [the vice
condemned in Zeth was an appellate court’s “use of new evidence
outside the record to second-guess the trial court[’s] resolution of
issues properly committed to it by the statutory scheme”].) We
are doing nothing of the sort and therefore grant the
Department’s motion.
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We further agree with the Department that the court’s
orders returning the children to the mother moots the ICWA
issue. (See In re A.T. (2021) 63 Cal.App.5th 267, 274–275
[parental placement renders ICWA inapplicable]; see also In re
Austin J. (2020) 47 Cal.App.5th 870, 881 fn. 5. (Austin J.).)
The father acknowledges this issue is “temporarily” moot
but asks us to exercise our discretion to address the merits
because the new custody orders are not final orders, the
dependency proceeding is ongoing, and the controversy may arise
again. We decline. (See In re D.P. (2023) 14 Cal.5th 266, 286–
287 [in deciding whether to exercise discretion to review a moot
appeal, courts should be guided by the overarching dependency
goals of providing maximum safety and protection for children,
preserving the family, and furthering the child’s well-being].)
The father has not demonstrated “there is a reasonable
probability that issues concerning ICWA compliance will arise
again.” (Austin J., supra, 47 Cal.App.5th at p. 881 fn. 5.) No one
asserts the Department seeks removal anew. Should ICWA come
into play in the future, we are confident the juvenile court and
the Department will comply with their duties of inquiry as to the
father’s family, particularly given the Department’s concessions
on appeal. Both the Department and the court would be under a
continuing duty to inquire about the child’s status as an Indian
child should removal proceedings restart. (Cal. Rules of Court,
rule 5.481(a); Welf. & Inst. Code, § 224.2, subd. (a).)
///
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DISPOSITION
We dismiss the father’s appeal as to his ICWA challenge
and affirm the juvenile court’s jurisdiction and disposition orders.
WILEY, J.
We concur:
STRATTON, P. J.
VIRAMONTES, J.
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