Filed 3 / 14 / 23 In re L.L. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

In re L

. L., et al., Persons Coming Under the Juvenile Court Law. 2d Juv. No. B322402 (Super. Ct. No s . 20JV00283, 2 0JV00284) (Santa Barbara County)

SANTA BARBARA COUNTY DEPARTMENT OF SOCIAL SERVICES,

Plaintiff and Respondent,

v.

L.P.,

Defendant and Appellant.

L. P . (mother) appeals the juvenile court’s order s terminating her parental rights to her minor children

, L

. L., and J.L., and selecting adoption as the permanent plan. (Welf. &2

Inst. Code, § 366.26.) 1 Mother ’s sole contention on appeal is that
the Santa Barbara County Child Welfare Services (CWS) and the juvenile court failed to comply with the ir duty of initial inquiry pursuant to the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C., § 1901 et seq.) and related California law because extended family members were not asked about possible Indian

a ncestry

. 2 We conclude the error was harmless in view of the recent augmentation of the appellate record , which reflect s CWS
has complied with its duty of initial inquiry an d no known Indian ancestry has been revealed

. We affirm.

Facts and Procedural History In July 2020

, CWS petition ed the juvenile court to detain
20

- month

- old L .L. and 9

- month

- old J.L. from mother and Frank L. (father) due to o ngoing domestic violence

, substance abuse

, both parents’ criminal histories , and mother’s untreate d mental
health issues

. 3 The petition included an “Indian Child Inquiry
Attachment” that indicated neith er parent gave any reason to believe the children are or may be Indian children.
At the detention hearing

, father denied any Indian ancestry when a sked by the juvenile court. Mother was not present for the hearing. The juvenile cou rt found there was no

1 All further undesignated statutory references are to the Welfare and Institutions Code.

2 “[B]ecause ICWA uses the term ‘Indian,’ we do the same for consistency, even though we recognize that other terms, such as ‘Native American’ or ‘indigenous,’ are preferred by many.” ( In re Benjamin M. (2021) 70 Cal.App.5 th 735, 739, fn. 1.)

3 We granted mother ’s request for judicial notice of the related appellate case number B311378

.3

reason to believe or reason to know the children are Indian
children and found ICWA did not apply. Thereafter, t he juvenile court held a hearing to appoint
counsel for mother

. At that hearing, m other denied any Indian ancestry when asked by the juvenile court

. M other also completed a n ICWA

- 020 form

, “Parental Notification of Indian
Status

, ” and declared , under penalty of perjury, that non e of the criteria indicating Indian ancestry applied to her or her children. In August 2020, the juvenile court held the disposition hearing and found there was no reason to know the children were Indian children and found ICWA did not apply. It sustained the
amended petition and ordered family reunification services for both parents. During CWS’s investigation and consideration of relative place ments, CWS contacted paternal great grandparents , with
whom L .L. and J.L. were subsequently placed. It also contacted maternal grandmother . T he record does not indicate that CWS asked any of these extended family members about L .L. ’s and J.L.’s possible Indian ancestry. The record similarly does not indicate that the juvenile court inquired of any extended family
member about the minor children’s possible Indian ancestry during court proceedings

, even though various relatives appea red at the proceedings , incl uding paternal great grandparents, paternal aunt, maternal grandmother, and maternal aunt. In March 2021, the juvenile court held a contested six

month review hearing . Following the hearing, the juvenile court
termin ated both parents’ reunification services and set the
matter for a permanency planning hearing pursuant to section
366.26.4 In October 2021, the juvenile court held a combined hearing to consider mother’s section 388 petition and conduct the contested section 366.26 hearing. At the request of county counsel, th e juvenile court once again found th ere wa s no reason to believe that ICWA would apply

. P aternal great grandmother
and maternal grandmother were present in the courtroom and
made no ob jection. T he juvenile court granted mother’s section
388 petition and ordered additional reunification services for her. In January 2022 , at the eighteen

- month review hearing, the juvenile court terminated mother’s reunification services and

set the ma tter for a permanency planning hearing pursuant to
section 366.26

. In July 2022, two years after L .L. and J.L. were detained
from mother and father

, the juvenile court terminated parental rights fo llowing a contested section 366.26 hearing

, found the children’s placement with paternal great grandparents was appropriate, and found by clear and convincing evidence the children are likely to be adopted

. Motion to Augment On November 14, 2022, prior to filing its respondent’s brief

, CWS filed a motion to augment the record on appeal to include evidence of an updated “ICWA MATRIX” for L .L. and J.L. that
CWS filed in the juvenile court on October 28, 2022. The
document reveals that between September 2022 and Oc tober 2022, CWS contacted paternal great grandmother, paternal great grandfather, paternal aunt

, and maternal grandmother , all of whom indicated there was no known Indian ancestry in their family

. The document also reveals that o n October 1 3, 2022, two months after mother filed this appeal, she c ontacted CWS and
informed them that maternal aunt

, whom CWS had attempted to5

contact
, was a minor . Mother reiterated that there wa s no Indian ancestry in her family “ as they are all from Mexico. ” After CWS moved to augment the record with the updated ICWA matrix, m other filed a n opposition . She contends this

court should reject the motion “because it is an attempt to circumvent the requirements of Code of Civil procedure 909; because it would pla ce this court in a fact

- finding position; and because it does not resolve the issue on appeal.” We d eferred
resolution of CWS’s motion to augment pending completion of briefing.
We determine that the application of Code of Civil procedure 909 is approp riate in this case

, as we shall explain below, and grant CWS’s motion to augment the record.
Dis cussion
Mother contends the judgment terminating her parental rights should be conditionally affirmed and the matter remanded to the juvenile court due to the failure of CWS and the juvenile

court to comply with their duty of initial inquiry whether L .L. and J.L. are or may be Indian children.
We review claims of inadequate inquiry into a child’s Indian ancestry for substantial evidence. ( In re Rebecc a R. (2006) 143 Cal.App.4th 1426, 1430 ; § 224.2, subd. (i)(2) .) ICWA defines an “Indian child” as “any unmarried person
who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe
and is the biological child of a member of an Indian tribe.” (25 U.S.C. § 1903(4) & (8); § 224.1, subd. (a).) The juvenile court and the county child welfare department have an affirmative and continuing duty to inquire whether a child subject to dependency

pro ceedings is or may be an Indian child. (§ 224.2, subd. (a); Cal.6

Rules of Court, rules 5.481(a) & 5.668(c) .) The duty to inquire begins with the initial contact and obligates the juvenile court
and the child services agency to ask the child, parents, extended family members, and others who have an interest in the child, whether the child is, or may be, an Indian child. (§ 224.2, subd s

. (a)

- ( c ); In re E.L . (2022) 82 Cal.App.5 th 597, 607.) Here, both mother and father repeatedly denied havin g any Indian ancestry when asked by CWS and by the juvenile court

. Mother also completed the ICWA

- 020 form and checked the box indicating she had no Indian ancestry. There was no objection when the juvenile court found that ICWA did not apply. However, the record does not reflect that CWS or the juvenile court made the required inquiries of extended family members.
CWS admits that it contacted extended family members during
the course of th is case, prior to appeal, and “failed to include any ICWA inquir y in the record.”
T he question becomes whether the error i s harmless. ( People v. Watson (1956) 46 Cal.2d 818, 836 ; Cal. C onst., art. VI, §
13 .) Currently, there is a split of authority as to whether an appellate court should consider additional evidence outside the lower court record concerning a child services agency’s investigatory efforts pursuant to ICWA

. We conclude that additional evidence may be considered in certain circumstances, where as here, the evidence resolves appellant ’s ICWA claim of error on appeal.
Code of Civil Procedure section 909 permits appellate courts to make independent factual findings and take additional evidence on appeal. O ur Supreme Court cautions that this authority should be exercised sparingly. ( In re Zeth S

. (2003) 317

Cal. 4 th 396, 405.) Bu t Code of Civil Procedure section 909 “also mandates it shall be liberally construed where a cause may be disposed of in a single appeal.” ( In re E.L

., supra , 82 Cal.App.5 th at p. 60 0 .) “When, however, postjudgment evidence is offered to an appellate court in support of a motion to dismiss a juvenile dependency appeal, it is ‘routinely conder[ed]’ because, if the motion is granted, it will have ‘the beneficial consequence’ of ‘“expedit[in g] the proceedings and promot[ing] the finality of the juvenile court’s orders and judgment.”’” ( In re Allison B . (2022) 79 Cal.App.5 th 214, 219 ; In re Dezi C. (2022) 79 Cal .App

. 5 th 769, 779, fn. 4 , review granted Sept. 21, 2022, S275578

. ) Here, t he ICW A matrix offered by CWS reflects that after mother filed her appeal, CWS interviewed all extended family members with whom it made contact, and each denied Indian ancestry. Accordingly, the deficiency in CWS’s duty of initial inquiry has subsequently been cured. A ugmentation of the record in this case, permits us to “achieve now what the trial
court would do on remand

– find that ICWA does not apply.” ( In
re E.L

., supra , 82 Cal.App.5 th at p. 608.) Therefore, r emand of
the matter would b e redundant and would unnecessarily delay the likelihood of adoption of L .L. and J.L.
Mother resists this conclusion and contends augmentation
of the record does not resolve the error because CWS could have inquired of additional extended family members

, including paternal grandmother whose contact information was listed in a police report filed with the court , and maternal grand father who was referenced in the disposition report

. But t he augmented record reflects that CWS has complied with its initial duty to inquire of those extended family members
with whom it had contact

. (See In re J.C. (2022 ) 77 Cal.App.5 th8

70, 78

- 79.) We recognize that any investigation can always be more robust. However, w e will not “set aside” the ju venile court’s judgment unless it “has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13.) Here , it has not. T here is no information to suggest that L .L. and J.L. might be Indian children or that inquiry of additional extended family me mbers would reveal some evidence of Indian ancestry. We conclude the failure of CWS and the juvenile court to comply with their duty of initial inquiry has subsequently been cured as evidenced by the augmented record on appeal, and
therefore the error i s harmless. Disposition The judgment (order s terminating parental rights and selecting adoption as the permanent plan) is affirmed.
NOT TO BE PUBLISHED

.

YEGAN, J.

We concur:

GILBERT, P. J.

BALTODANO, J.Gustavo Lava yen , Judge Superior Court County of Santa Barbara

______________________________

Carol A. Koenig , under appointment by the Court of Appeal, for Defendant and Appellant.

Rachel Van Mullem , County Counsel, Lisa A. Rothstein,
Senior Deputy County Counsel, for Plaintiff and Respondent.