In re N.D. CA2/5 ( 2023 )

Filed 8/23/23 In re N.D. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re N.D. et al., Persons Coming B315570
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct.
AND FAMILY SERVICES, Nos. 21CCJP02636A-C)
Plaintiff and Respondent,
v.
J.S. et al.,
Defendants and Appellants.
APPEAL from orders of the Superior Court of Los Angeles
County, Daniel Zeke Zeidler, Judge. Affirmed.
Mansi Thakkar, under appointment by the Court of Appeal,
for Defendant and Appellant J.S.
Janelle B. Price, under appointment by the Court of
Appeal, for Defendant and Appellant D.D.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Sally Son, Deputy County
Counsel, for Plaintiff and Respondent.
——————————
Mother and father separately appeal the juvenile court’s
jurisdiction and disposition orders under Welfare and
Institutions Code sections 300 and 361, subdivision (c).1 Both
parents argue there was insufficient evidence to support the
court’s jurisdictional findings and orders removing their three
children from parental custody. Father also contends it was error
for the court to find that the Los Angeles County Department of
Children and Family Services (the Department) had complied
with its obligations under the Indian Child Welfare Act of 1978
(ICWA; 25 U.S.C. § 1901 et seq.) and related California statutes
(Welf. & Inst. Code, § 224 et seq.). We affirm, finding father’s
ICWA contention to be moot.
BACKGROUND2
Family history
The current case involves mother, father, and their three
children: a daughter (born June 2020) and twin infant boys (born
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2 We “review the record in the light most favorable to the
court’s determinations.” (In re M.R. (2017) 8 Cal.App.5th 101,
108.)
2
May 2021). Mother had previously given birth to four other
children with different fathers. The oldest two were twins who
were born in March 2009 and lived in Arizona with their paternal
grandmother. Mother did not have contact with the paternal
grandmother, but sometimes communicated with one of the twins
through Snapchat. Mother’s next child was born in Waco, Texas,
in December 2010. In 2017, mother arranged for that child to
live with the child’s father and paternal grandparents in Tampa,
Florida, because mother was pregnant and caring for a
terminally ill grandparent. Mother’s fourth child was born at 22
weeks gestation and died 12 hours later; after that, mother began
to use methamphetamine and heroin. Mother reported that she
was “ ‘homeless and messed up,’ ” and that she was trafficked and
was a victim of sexual assault.
Mother met father in New York; she claimed that father
helped her build a new life and that she stopped using drugs. At
some point prior to June 2020, the parents moved to Los Angeles.
When mother gave birth to the couple’s daughter in June
2020, a child welfare referral was generated because mother
tested positive for marijuana and disclosed a history of
psychiatric disorders, homelessness, tobacco and marijuana use
during the pregnancy, and the loss of a prior pregnancy “due to
cocaine use, polysubstance abuse prior to pregnancy (meth,
heroin, cocaine).” (Emphasis omitted.) When a Department
social worker interviewed mother, she was alert and oriented,
although she was anxious and triggered by the social worker’s
questions. Mother acknowledged her history of mental illness,
stating she took prescribed psychiatric medications for three
months, but then discontinued medications without direction
3
from her doctor because she felt fine. The matter was evaluated
out.
In October 2020, the Department received a report of
general neglect, alleging mother and father had been staying in
multiple hotels since their daughter was born, that mother was
prostituting, using heroin, and cutting to self-harm. The parents
were participating in a homeless shelter program at a hotel, and
they refused to allow the social worker to enter to assess the
child. The matter was closed as inconclusive.
Initial investigation and petition
The Department received a new referral on May 13, 2021,
when mother and father’s twin sons were born prematurely, at 33
1/2 weeks of pregnancy, and mother tested positive for
amphetamines and cannabinoids. The toxicology results for one
twin showed a presumptive positive for amphetamine and
cannabinoids, while the other twin’s results showed a
presumptive positive for cannabinoids only. Meconium tests
were still pending. The infants did not show signs of withdrawal,
but were kept in the NICU due to their premature birth and to
rule out sepsis. They were scheduled to be released from the
hospital in three weeks. Mother denied using
methamphetamine, but acknowledged using marijuana for
anxiety and seizures. According to the referring party, mother
stated she lives in a drug house and had to clean
methamphetamine off the walls. Mother denied any history with
the Department, and received minimal pre-natal care.
Mother was discharged from the hospital before the social
worker could speak to her. Mother had brief phone contact with
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the social worker on May 19, 2021, and agreed to a drug test.
Both mother and father tested positive for marijuana on May 19,
2021. Mother deferred meeting with the social worker several
times, eventually speaking with the social worker by phone on
May 28, 2021. When asked about the positive toxicology results
from the hospital, mother explained that she and father had
moved into a new home, and the prior owners had left boxes in
the attic. Mother was feeling fine until she dropped one of the
boxes, which contained paint and glass vases that broke when
she dropped the box. Asked whether there was anything in the
vases, mother responded, “ ‘they just broke.’ ” Right after
dropping the box, she started feeling cramps and back pain and
was turning pale and sweating. She was then rushed to the
hospital, where she had a Cesarean section. She was not sure
how amphetamines got into her baby’s system. Mother also said
she and father smoke “pre-rolled joints.” Asked to explain what a
“pre-rolled joint” was, mother said it was not really marijuana,
and that she did not know she was pregnant until March 2021.
Mother denied any domestic violence, mental health issues, or
taking medication for mental health concerns. She denied any
prior child welfare history. When the social worker reminded her
of the Department’s October 2020 investigation, mother said the
allegations were not true and the social worker never asked her
or father to drug test. Father did not respond to the social
worker’s attempts to contact him in May of 2021.
On June 2, 2021, the Department obtained an order to
remove all three children from parental custody: the twins were
to remain in the hospital until they were released to foster
parents, and daughter was to be placed in the care of paternal
great aunt. The Department’s June 4, 2021, initial dependency
5
petition alleged three counts: Counts b-1 and b-2 identified each
twin separately, alleging each twin’s toxicology results. Count b-
3 alleged all three children were at risk of harm based on
mother’s substance abuse and father’s failure to protect.
Jurisdiction/disposition report and amended petition
Interviewed for the first time on June 7, 2021, father told a
social worker that he had given mother over the counter Tylenol,
and believed that the Tylenol may have caused the twins’
premature birth. He said mother received prenatal care as soon
as she learned she was pregnant, but he could not remember at
what point in the pregnancy that happened, and he could not
remember the name of the clinic. Father said mother used
marijuana during her pregnancy because she could not take other
medications.
On July 8, 2021, mother again admitted using marijuana
during her pregnancy, but denied using methamphetamine.
Mother asked how one twin could test positive for
methamphetamine when the other did not. She also mentioned
that the Tylenol father gave her might have had Sudafed in it,
and that father was upset because he gave it to her. Mother
repeated her belief that shortly before she went into labor, she
might have inhaled something after dropping a box at her new
apartment. According to the social worker’s report, “Mother
stated, ‘It’s a drug community. I was cleaning the cupboards and
I dropped a box that had a bunch of glass in it. I didn’t see any
glass pipes or anything. I think I might have inhaled
something.’ ” Mother admitted using methamphetamine and
heroin after her son passed away in 2017. She explained she
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started using when that son’s father “ ‘gave it to me and said for
me to do it because it would make me feel better. Once I started I
was hooked. I had gone through severe trauma. I used until
2018 and then I quit cold turkey. I didn’t go to rehab or use that
medication they give you. After that I had a lot of anxiety.’ ”
Mother confirmed she was diagnosed in 2019 with Post-
Traumatic Stress Disorder (PTSD) and Schizoaffective Disorder,
and was hospitalized in Belton, Texas for nine days. She
explained that “ ‘in late 2018, early 2019, I went through what
they called meth induced psychosis. I was hallucinating. I was
hearing and seeing things. That never happened to me in my
life. I thought it was real, it was very intense.’ ” The hospital
wanted her to go to an inpatient rehabilitation, but she did not
go. She was prescribed several psychotropic medications, and
went to therapy for two months. Her medication was stolen, she
did not continue therapy or seek out any mental health services
after that time. She told the social worker that she was
experiencing depression before and after the twins’ birth, and
was open to services. Mother appeared motivated to participate
in services and get her children back.
On July 9, 2021, the Department filed an amended petition,
adding mother’s substance abuse history to count b-3, and adding
a new count (b-4), alleging all three children were at risk of harm
based on mother’s mental and emotional problems. Count b-4 did
not contain any allegations against father.
In a second interview on July 9, 2021, father was upset
with the Department for taking his children without giving him a
chance first. He and mother met when they were both homeless
in Buffalo, New York, and came to California less than a year
later. He denied knowing mother’s mental health history or her
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history of using methamphetamine and heroin. Father presented
as aggressive during the interview, and gave very limited
responses.
The social worker tried to obtain child welfare history
involving mother from Arizona, Texas, and New York. Someone
from Arizona’s Child Protection Hotline reported that mother had
no open or closed cases in Arizona, but there had been an
investigation in January 2019, based on a report that mother was
unable to care for her children due to her heroin addiction. A
disposition was not available.
Last minute information report
A Last Minute Information report dated August 9, 2021,
included medical records for both twins. The report stated
toxicology results confirmed each infant tested positive for
methamphetamine and THC, and negative for amphetamine.
The description was accurate for one twin, but the other twin’s
medical records showed that the meconium drug screen came
back positive for amphetamine and marijuana In addition, the
drug test results for one twin included language cautioning on
relying on the report for anything other than medical use.3
3 The lab report included the following cautionary
language: “This drug screen is for medical use only. The results
are presumptive, based on screening methods, and they have not
been confirmed by a second independent chemical method.” The
document continued: “These results should be used only by
physicians to render diagnosis or treatment, or to monitor
progress of medical conditions. These results should not be used
for any legal purpose or for employment evaluation.”
8
Adjudication and disposition hearing
At the adjudication hearing on August 9, 2021, the juvenile
court admitted the infants’ lab results over the parents’ objection.
After the court heard argument from all parties, it sustained all
four counts of the amended petition, as amended by
interlineation. The court’s interlineation resulted in count b-3
alleging that father only failed to protect daughter from mother’s
substance abuse, not all three children, and b-4 alleging that
mother’s history of mental and emotional problems placed all
three children at risk of harm.
At disposition, mother and father asked for the children to
be returned to their custody. The court responded to mother’s
request by pointing to parents’ lack of cooperation during the
Department’s October 2020 investigation, and mother’s delay in
signing up for services. Father pointed out that he was non-
offending as to the twins, and asked for children to be placed with
him, with mother moving out if the court was not willing to order
the children returned to both parents. Father alternatively
sought unmonitored visits. The Department argued for removal
of all three children, with reunification services. The Department
pointed out both parents had a history of being uncooperative
and hiding from the Department, and argued that returning the
children to father would jeopardize the children’s safety in light
of father’s lack of understanding of the risks posed by mother.
The court ordered all three children removed from parental
custody, with visitation and reunification services in accordance
with the case plan.
Mother and father filed separate notices of appeal.
9
DISCUSSION
Justiciability and standing
On appeal, mother only challenges the sufficiency of the
evidence as to the counts based on substance abuse (counts b-1,
b-2, and b-3). She does not challenge the sufficiency of the
evidence supporting count b-4, that all three children are at risk
of harm based on her untreated mental health problems.
Although the juvenile court only sustained a single count against
father, based on his failure to protect their daughter from harm
based on mother’s substance abuse (count b-3), his appellate
briefing challenges the sufficiency of the evidence as to all four
counts. Both parents contend the court erred in removing all
three children from parental custody. The Department contends
mother’s appeal is non-justiciable, and father lacks standing to
challenge the counts that do not involve him.
“ ‘When a dependency petition alleges multiple grounds for
its assertion that a minor comes within the dependency court’s
jurisdiction, a reviewing court can affirm the juvenile court’s
finding of jurisdiction over the minor if any one of the statutory
bases for jurisdiction that are enumerated in the petition is
supported by substantial evidence. In such a case, the reviewing
court need not consider whether any or all of the other alleged
statutory grounds for jurisdiction are supported by the evidence.’
[Citation.]” (In re I.J. (2013) 56 Cal.4th 766, 773.) However,
when the challenged jurisdictional findings serve as the basis for
dispositional orders that are also challenged on appeal, we may
exercise our discretion to review the merits of the challenge. (In
10
re Drake M. (2012) 211 Cal.App.4th 754, 762–763; In re Alexis E.
(2009) 171 Cal.App.4th 438, 454.)
Because both parents appeal the orders removing all three
children from their custody, we exercise our discretion to consider
whether there is sufficient evidence to support the jurisdictional
finding of substance abuse (primarily count b-3). However, we
decline to consider father’s challenge to the sufficiency of the
evidence supporting count b-4 against mother. (In re I.A. (2011)
201 Cal.App.4th 1484, 1492 [“an appellate court may decline to
address the evidentiary support for any remaining jurisdictional
findings once a single finding has been found to be supported by
the evidence”].)
Evidentiary support for jurisdiction and disposition orders
A. Standard of Review and Applicable Law
The California Legislature has declared that the purpose of
our dependency statutes “is to provide maximum safety and
protection for children who are currently being physically,
sexually, or emotionally abused, being neglected, or being
exploited, and to ensure the safety, protection, and physical and
emotional well-being of children who are at risk of that harm. . . .
The provision of a home environment free from the negative
effects of substance abuse is a necessary condition for the safety,
protection and physical and emotional well-being of the child.”
(§ 300.2, subd. (a).)
When the court amended and sustained count b-3, the
language of former section 300, subdivision (b)(1), authorized
dependency jurisdiction over a child where the “child has
11
suffered, or there is a substantial risk that the child will suffer,
serious physical harm or illness, as a result of” a parent’s
inability or failure “to adequately supervise or protect the
child . . . or by the inability of the parent . . . to provide regular
care for the child due to the parent’s . . . mental illness,
developmental disability, or substance abuse.”4 (Stats. 2015,
ch. 303, § 566.)
Generally, a parent’s substance abuse, “without more,” is
an insufficient basis to assert dependency jurisdiction. (In re
L.W. (2019) 32 Cal.App.5th 840, 849.) The jurisdictional finding
“cannot be based on substance abuse alone; jurisdiction requires
a substantial risk of harm to the child arising from the substance
abuse.” (In re J.A. (2020) 47 Cal.App.5th 1036, 1046.) However,
when the children at issue are very young, as they were here,
“ ‘the finding of substance abuse is prima facie evidence of the
inability of a parent or guardian to provide regular care resulting
in a substantial risk of harm.’ [Citations.]” (In re Christopher R.
(2014) 225 Cal.App.4th 1210, 1219; see also In re K.B. (2021) 59
Cal.App.5th 593, 603.)
“Although section 300 generally requires proof the child is
subject to the defined risk of harm at the time of the jurisdiction
hearing [citations], the court need not wait until a child is
seriously abused or injured to assume jurisdiction and take steps
necessary to protect the child. [Citation.] The court may
consider past events in deciding whether a child presently needs
4 Later legislative amendments did not change the quoted
language, but further divided subdivision (b)(1) of section 300, so
that portions of the quoted language appear in section 300,
subdivision (b)(1)(B) and (b)(1)(D).
12
the court’s protection. [Citation.] A parent’s ‘ “[p]ast conduct
may be probative of current conditions” if there is reason to
believe that the conduct will continue.’ ” (In re Christopher R.,
supra, 225 Cal.App.4th at pp. 1215–1216.)
Section 361, subdivision (c)(1), provides a dependent child
may only be removed from a parent if the dependency court finds
“[t]here is or would be a substantial danger to the physical
health, safety, protection, or physical or emotional well-being of
the minor if the minor were returned home, and there are no
reasonable means by which the minor’s physical health can be
protected without removing the minor from the minor’s
parent’s . . . physical custody.” The court must also “make a
determination as to whether reasonable efforts were made to
prevent or to eliminate the need for removal of the minor from
his or her home” and “state the facts on which the decision to
remove the minor is based.” (§ 361, subd. (e).) “ ‘The parent need
not be dangerous and the minor need not have been actually
harmed before removal is appropriate. The focus of the statute is
on averting harm to the child.’ [Citation.] The court may
consider a parent’s past conduct as well as present
circumstances. [Citation.]” (In re N.M. (2011) 197 Cal.App.4th
159, 169–170.)
Although a juvenile court may consider hearsay evidence at
a jurisdictional hearing, “if a timely objection is made and no
hearsay exception applies, the evidence must be corroborated.”
(In re R.R. (2010) 187 Cal.App.4th 1264, 1280.) “Corroborating
evidence is evidence which supports a logical and reasonable
inference that the act described in the hearsay statement
occurred. [Citation.] The quantum of corroboration necessary to
support a jurisdictional finding is ‘somewhat analogous to the
13
rule in criminal law requiring independent corroborative proof of
accomplice testimony,’ that is, direct or circumstantial evidence,
even if slight, is sufficient if it tends to connect the accused with
the act.” (Id. at pp. 1280–1281.) “At the . . . dispositional phase,
any relevant evidence including hearsay shall be admitted
pursuant to section 358, subdivision (b) to help the court
determine the child’s best interests.” (In re Corey A. (1991) 227
Cal.App.3d 339, 347.)
We review the jurisdictional findings for substantial
evidence, drawing all reasonable inferences in support of the
juvenile court’s decision and refraining from reweighing issues of
fact or credibility. (In re Cole L. (2021) 70 Cal.App.5th 591, 602.)
However, “[s]ubstantial evidence is not synonymous with any
evidence. [Citation.] To be substantial, the evidence must be of
ponderable legal significance and must be reasonable in nature,
credible, and of solid value.” (In re M.S. (2019) 41 Cal.App.5th
568, 580.) Although the substantial evidence standard may be
met by inferences, such inferences must be reasonable in light of
the entire record, and not based on speculation or conjecture
alone. (In re J.A., supra, 47 Cal.App.5th at p. 1046.) We review a
juvenile court’s removal order for substantial evidence as well,
but we must find substantial evidence sufficient to support the
juvenile court’s finding to have been made by clear and
convincing evidence. (In re V.L. (2020) 54 Cal.App.5th 147, 149,
155.)
B. Jurisdiction
As amended and sustained by the court, count b-3 alleged
mother “has a history of substance abuse including
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methamphetamine, heroin, and marijuana. Mother [] is a is a
current abuser of amphetamine and marijuana, which renders
[her] unable to provide regular care of the children. The mother
used amphetamine and marijuana during [her] pregnancy with
the [twins], and [she] had a positive toxicology screen for
amphetamine and marijuana at the birth of the children. On
5/19/2021, the mother had a positive toxicology screening for
marijuana. The children are of such a young age as to require
constant care and supervision and the mother’s substance abuse
interferes with providing regular care of the children. The
childrens’ father . . . knew, or reasonably should have known of
the mother’s substance abuse and the father’s failed to take
action to protect [the older child]. The mother’s substance abuse
and the father’s failure to protect the [older child], endanger the
children’s physical health and safety and place the children at
risk of serious physical harm, damage, danger, and failure to
protect.” (Emphasis omitted.)
Parents contend the twins’ unconfirmed positive drug tests
cannot support the jurisdictional finding because the test reports
are hearsay evidence or are otherwise unreliable. The newborn
twins’ initial drug tests returned positive for cannabinoids for
both twins, and positive for amphetamines for one twin.
Subsequent meconium testing confirmed the positive
amphetamine and cannabinoid test for one twin, and the positive
cannabinoid test for the other twin. At the time of the twins’
birth, mother also tested positive for amphetamine and
cannabinoids. Both parents tested positive for cannabinoids a
week later, on May 19, 2021.At the adjudication hearing in
August 2021, father raised a hearsay objection to admission of
the Department’s Last Minute Information Report, specifically
15
the infants’ drug test results. Mother joined in the objection. The
court admitted the documents over the parents’ objections.
The parents’ objections to admission of the twins’
toxicology results did not extend to the Department’s other
reports, which included mother’s own positive drug test results,
where she tested positive for amphetamine and cannabinoids on
the day she gave birth to the twins, and positive for cannabinoids
a week later. Mother’s own test results provide sufficient
corroboration for the twin’s positive test results, (In re R.R.,
supra, 187 Cal.App.4th at p. 1280), and there is substantial
evidence of mother’s drug use, from which risk to the newborns
could be reasonably inferred. Mother and father admitted to
using marijuana, both during mother’s pregnancy and
afterwards. In addition, mother reported that before she went
into labor, she and father were living in a drug community, and
that she may have inhaled something that caused her to go into
labor prematurely. With the evidence before it, the juvenile court
was free to find mother’s explanation (that her ingestion of
amphetamine was unintended or accidental) to not be credible.
Considered together with the evidence of mother’s past drug
addiction and the parents’ admitted marijuana use, the test
results support a reasonable inference that mother exposed her
unborn children to drugs. It is not our role to reweigh the
evidence considered by the trial court, or to make credibility
determinations.
The parents argue on appeal that the Department’s
decision not to intervene when it learned mother used marijuana
during her pregnancy with the older child supports a reasonable
inference that the primary concern was mother’s use or abuse of
amphetamine. However, this argument mischaracterizes the
16
applicable standard of review, which draws all reasonable
inferences in favor of the jurisdictional finding.
The parents also argue that there was no evidence that the
children suffered any harm as a result of their drug use.
However, dependency jurisdiction applies not only to children
who have suffered harm, but those who are at risk of harm, and a
determination of substance abuse establishes a prima facie case
that children of “tender years” are at risk of harm. (In re Drake
M., supra, 211 Cal.App.4th at p. 767.) In addition, the parents’
evasiveness during the Department’s attempts to investigate the
October 2020 referral provided further support for the juvenile
court’s conclusion that mother’s substance abuse posed a
substantial risk to the children. The referral alleged that mother
was using heroin, both parents appeared to be under the
influence of drugs and fought frequently. When a social worker
attempted to investigate, father lied about mother’s whereabouts,
mother was aggressive and uncooperative, and both parents
refused entry to the social worker to assess the child. (See In re
E.E. (2020) 49 Cal.App.5th 195, 213–215 [citing mother’s evasive
behavior during agency’s attempt to investigate dependency
referral as support for juvenile court’s conclusion that mother’s
substance abuse posed a risk to children].) During the
Department’s investigation into the current case, father could not
recall when or where mother had received pre-natal care, and he
claimed to be unaware of her past drug addiction and mental
health problems, even though mother reported her history during
the birth of their daughter in June 2020, triggering a Department
investigation.
Considering all of these facts collectively, count b-3 of the
petition is supported by substantial evidence.
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C. Removal Order
Substantial evidence also supports the court’s removal
order, even considering the higher evidentiary standard
applicable in the juvenile court. In addition to the evidence in
support of the jurisdictional finding, as recited earlier in this
opinion, we note that father was simply not available for even an
interview until almost a month after the twins were born, his
demeanor was aggressive, and he gave limited responses to
questions. The parents’ visits with their children after detention
were also inconsistent and erratic. The older child’s caregiver
reported that parents sometimes cancelled visits due to reported
illness, but also called incessantly, demanding visits on short
notice at late night hours that were not aligned with an infant’s
schedule. Mother had inconsistent video chats with the infants,
and father had never called the twins’ caregiver. Keeping in
mind that the goal of dependency proceedings is to ensure the
childrens’ safety, the court’s decision to remove all three children
from parental custody was well-substantiated.
ICWA
Father challenges the court’s ICWA determination. Mother
denied any Indian ancestry, but father filed a Parental
Notification of Indian Status (ICWA-020) form indicating possible
Indian ancestry through the Sioux of Mississippi or Cherokee of
Oklahoma tribes. Responding to questions from the court, father
denied knowing of any relatives that were members of the Sioux
or Cherokee tribes, but the court ordered the Department to
make additional inquiry efforts related to father’s claim.
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Paternal grandfather reported that, based upon their
physical appearances, his maternal great-grandmother was
possibly of Cherokee descent, and he believed his father (paternal
great-grandfather) had Native American heritage. All of
paternal grandfather’s relatives were born in Arkansas, and he
did not have their information. The Department sent ICWA-030
notices to the Secretary of the Interior, the Bureau of Indian
Affairs, and three Cherokee tribes. The notices included the
parents’ information, and the names and dates of birth for
paternal grandparents and paternal great-grandparents. By
September 24, 2021, the Department had received responses
from two of the three Cherokee tribes notified, and had left a
voicemail for the third tribe. After father initiated the current
appeal, the Department provided the juvenile court with reports
that the third Cherokee tribe denied that the children were
Indian children under ICWA, and father and additional paternal
relatives, including paternal grandfather, denied any Indian
ancestry. The court found ICWA inapplicable on February 27,
2023.
The Department filed a request for judicial notice of post-
appeal filings and orders showing that ICWA requirements have
been met, and asks us to dismiss father’s ICWA challenge as
moot. Father in his reply brief concedes that the post-appeal
evidence renders his ICWA challenge moot. We grant the
Department’s request for judicial notice and find father’s ICWA
contentions to be moot.
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DISPOSITION
The jurisdiction and disposition orders are affirmed.
NOT TO BE PUBLISHED.
MOOR, J.
We concur:
RUBIN, P. J.
KIM, J.
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