California
Appeals
California Appeals
eBook
Post Judgment Evidence

Post Judgment Evidence: Exceptional Circumstances Exception-In re A.B

B

              Leonard also contends our consideration of postjudgment evidence would violate the following language in In re Zeth S. (2003) 31 Cal.4th 396, 405 (Zeth S.):  "It has long been the general rule and understanding that 'an appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration.' "

            Zeth S., however, is distinguishable.  In that case, the mother appealed the termination of her parental rights on the ground the court erred by finding the beneficial parent-child relationship exception to adoption was inapplicable.  In an unsworn letter brief, the child's appellate counsel represented that she had investigated current circumstances and learned the mother visited regularly and assumed a parental role, and the grandfather felt pressured to adopt and would rather be a legal guardian.  (Zeth S., supra, 31 Cal.4th at p. 403.)  The Supreme Court disapproved of the Court of Appeal's consideration of postjudgment circumstances "as a means of reexamining the mother-child relationship," because "that was a settled matter which, by statutory directive, could not be reopened for reconsideration by mother, not even at the termination hearing itself."  (Id. at pp. 411-412.)

            The Zeth S. court held that "consideration of postjudgment evidence of changed circumstances in an appeal of an order terminating parental rights, and the liberal use of such evidence to reverse juvenile court judgments and remand cases for new hearings, would violate both the generally applicable rules of appellate procedure, and the express provisions of section 366.26 which strictly circumscribe the timing and scope of review of termination orders, for the very purpose of expediting the proceedings and promoting the finality of the juvenile court's orders and judgment."  (In re Zeth S., supra, 31 Cal.4th at p. 413, fn. omitted.)

            In In re Josiah Z. (2005) 36 Cal.4th 664 (Josiah Z.), the court clarified that in Zeth S., it held "an appellate court should not consider postjudgment evidence going to the merits of an appeal and introduced for the purposes of attacking the trial court's judgment."  (Josiah Z., at p. 676, italics added.)  In Josiah Z., the children's appellate counsel moved to dismiss their appeal on the ground she had investigated and found their current nonrelative placement satisfactory, and dismissal would be in the children's best interests.  The court rejected the notion that Zeth S. precluded counsel's best interests assessment.  (Josiah Z., at p. 676.)

            The court explained in Josiah Z. that the California Rules of Court authorize a motion to dismiss and appellate courts routinely consider postjudgment evidence in support of such motions; "the limited issue involved in a motion to dismiss, whether a child should be permitted to abandon a challenge to the trial court ruling, is distinct from the broader issues resolved by the trial court, and consideration of circumscribed evidence in this context does not give rise to the vice we condemned in Zeth S.—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"; and "the beneficial consequence of motions to dismiss, where granted, will be to 'expedit[e] the proceedings and promot[e] the finality of the juvenile court's orders and judgment' [citation]—precisely the policy advanced by our ruling in Zeth S."  (Josiah Z., supra, 36 Cal.4th at p. 676; see also In re Salvador M. (2005) 133 Cal.App.4th 1415, 1422 [proper to augment appellate record to include agency's addendum report disclosing adoptive home study had been approved, which rendered issue on appeal moot].)

            This case is more akin to Josiah Z. than Zeth S.  In contrast to Zeth S., the postjudgment evidence is not presented in an unsworn statement of counsel.  Rather, the Agency submitted to the juvenile court a certified copy of a court record from another county, which is subject to judicial notice.  Leonard asserts the Parental Notification of Indian Status form "appears to be a contrived document," but he offers no support for that notion.  Further, the Agency did not seek to augment the record with evidence pertaining to the substantive merits of the juvenile court's termination of parental rights, and the evidence cannot be used to reverse the judgment on substantive grounds.  The ICWA inquiry issue is distinct from the substantive merits of the court's ruling, which Leonard does not even challenge.  Also, admission of the evidence to affirm the judgment would promote the finality of the judgment and prevent further delay.

            Leonard submits that Angelique's ICWA-020 form is irrelevant because "a finding that the ICWA is inapplicable as to one child is not determinative of the question whether the ICWA applies in the case of a sibling or half-sibling of that child."  In support, Leonard relies on In re Desiree F. (2000) 83 Cal.App.4th 460, but that case does not concern siblings or half-siblings or the circumstances of the instant case.  Leonard cites broad language that the juvenile court has an "affirmative duty to inquire regarding the particular child before the court."  (Id. at p. 470.)  We agree with that assessment, but the issue here is whether the failure to discharge the duty of inquiry is harmless error given Angelique's denial of Indian heritage in another dependency matter.  "The holding of a decision is limited by the facts of the case being decided," despite broad language that appears helpful.  (McGee v. Superior Court (1985) 176 Cal.App.3d 221, 226.)

            Leonard also cites In re Miracle M. (2008) 160 Cal.App.4th 834 (Miracle M.), in support of his argument the harmless error doctrine is inapplicable here.  In Miracle M., the duty of inquiry was fulfilled, and there were indications that both parents of the two dependent children, Miracle and Faith, had American Indian heritage.  Because the tribes were unknown, the court ordered the social services agency to notify the BIA.  (Id. at pp. 838-839, 847.)  The social worker later learned the father may have Cherokee Indian ancestry.  She also learned from the maternal grandmother that the mother's family had no American Indian ancestry, but descended from Mexican Indians.  The social worker concluded the ICWA was inapplicable to the maternal side of the family.  The social worker sent notice of the proceedings to the three Cherokee tribes, the BIA and the Secretary of the Interior.  The notice, however, mentioned only Miracle, and the agency did not send either parent a copy of the notice.  (Id. at p. 839.)  The tribes responded that Miracle was not an Indian child, and the juvenile court found the ICWA inapplicable.  (Id. at pp. 841-842.)

            On appeal, the mother contended reversal of the judgment terminating her parental rights was required because the ICWA notice did not pertain to Faith, and the parents got no copy of the notice.  The agency there, however, did not oppose a limited reversal and remand for notice as to Faith, and the case does not even discuss whether the failure to include Faith in the notice could be considered harmless error since the children were full siblings and there was no indication that Miracle had any Indian heritage.  (Miracle M., supra, 160 Cal.App.4th at p. 846.)  Again, cases are not authority for points not considered.  (In re Marriage of Cornejo (1996) 13 Cal.4th 381, 388.)  Notably, the Miracle M. court also held that as to Miracle, any defect in notice to the parents was harmless error because the mother "does not tell us how reversing the court's orders as to Miracle . . . would produce any additional information that this child is an Indian child."  (Miracle M., supra, at p. 847.)

            Leonard's reliance on In re J.N., supra, 138 Cal.App.4th 450, for the proposition that he is not required to show prejudice is also misplaced.  In In re J.N., the court rejected the argument that the lack of inquiry of the mother was harmless error because there was nothing in the record that indicated she had Indian ancestry.  The court explained "[w]e refuse to speculate about what mother's response to any inquiry would be . . . and instead remand the matter to the trial court with directions."  (Id. at p. 461.)

            Here, no speculation is involved because Angelique's Parental Notification of Indian Status form shows she disclaims any Indian heritage.  Although the form was for another child, considered with Leonard's form in which he denied Indian heritage, it shows that A.B. necessarily has no such heritage.  When a parent indicates he or she may have Indian heritage, "it is preferable to err on the side of giving notice and examining thoroughly whether the juvenile is an Indian child."  (In re Dwayne P., supra, 103 Cal.App.4th at p. 257.)  When both biological parents deny any Indian heritage, however, there is no tribe to notify of the proceedings.  "While the social worker and the trial court have a duty to inquire into the child's Indian ancestry, a parent has superior access to this information."  (In re S.B. (2005) 130 Cal.App.4th 1148, 1160.)

            Code of Civil Procedure section 909 allows appellate courts to "accept evidence in dependency cases 'to expedite just and final resolution for the benefit of the children involved.' "  (In re Carrie M. (2001) 90 Cal.App.4th 530, 535.)  That right, however, should be exercised sparingly.  (In re Zeth S., supra, 31 Cal.4th at p. 405.)  " 'Absent exceptional circumstances, no such findings [based on the receipt of evidence outside the record on appeal pursuant to section 909] should be made.  [Citation.]' "  (Id. at p. 408, fn. 5.)

            We find exceptional circumstances here, and accordingly augment the record to include Angelique's Parental Notification of Indian Status form from the Monterey County dependency proceeding.  Based thereon, we conclude the inquiry error constitutes harmless error.  Since both parents have in judicial proceedings denied having any Indian heritage, resolution of this matter now does not thwart the laudatory purposes of the ICWA.  Indeed, a limited reversal and remand for compliance with the ICWA inquiry requirement as to Angelique would serve no purpose other than delay.  We do not countenance the lack of inquiry, of course, but A.B. has been in the dependency system since birth and he is entitled to permanence and stability as soon as possible.

eBook Master Table of Contents  
Post Judgment Evidence: Table of Contents 
Definitions-Table of Contents
Standard of Review-Table of Contents

Previous Page