IN RE: J.W. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

J.W. (father) appeals from orders entered in the dependency case filed on behalf of J.W. (minor).  Father contends:  (1) unspecified orders should be reversed on the grounds that the Department of Children and Family Services (Department) did not provide the notice required by the Indian Child Welfare Act (ICWA);  and (2) the juvenile court erred when it denied his petition under section 388 of the Welfare and Institutions Code ¹ seeking six months of reunification services.

DISCUSSION

The Department concedes that N.J. (mother) indicated that she has Cherokee heritage.   It also concedes that there is no evidence that it investigated mother's heritage or provided notices to the Cherokee tribes or the Bureau of Indian Affairs pursuant to ICWA. (25 U.S.C. § 1912(a);  25 C.F.R. § 23.11(c)(12);  In re Louis S. (2004) 117 Cal.App.4th 622, 632–633.)   As a result, the Department is unopposed to a limited remand pursuant to In re Brooke C. (2005) 127 Cal.App.4th 377, 384 (Brooke C.).   On remand, the juvenile court shall order the Department to comply with the notice requirements of ICWA. If the minor is determined not to be an Indian child and ICWA does not apply, the prior defective notice becomes harmless error and any challenged order shall stand.  (Brooke C., supra, at p. 385.)   Alternatively, if the minor is determined to be an Indian child, father can petition the juvenile court to invalidate any orders which violated title 25 United States Code sections 1911, 1912, and 1913.  (25 U.S.C. § 1914;  Brooke C., supra, at p. 385.)

The denial of father's section 388 petition is moot.   His petition was denied on July 9, 2010.   This appeal was taken on August 3, 2010.   Subsequently, he filed another petition seeking six months of reunification services.   On October 26, 2010, his petition was granted.²  Due to this subsequent event, a reversal would not serve any purpose.  (Environmental Coalition of Orange County, Inc. v. Local Agency Formation Com. (1980) 110 Cal.App.3d 164, 170.)

DISPOSITION

The juvenile court's orders are affirmed.   The matter is remanded for the juvenile court to order the Department to comply with ICWA notice requirements.   If the minor is determined to be an Indian child and ICWA applies, father is entitled to petition the juvenile court to invalidate any orders which violated title 25 United States Code sections 1911, 1912, and 1913.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

ASHMANN–GERST

We concur:

FOOTNOTES

FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated..  FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

FN2. We take judicial notice of the juvenile court's October 26, 2010, minute order pursuant to Evidence Code section 452, subdivision (c) and consider the evidence pursuant to Code of Civil Procedure section 909..  FN2. We take judicial notice of the juvenile court's October 26, 2010, minute order pursuant to Evidence Code section 452, subdivision (c) and consider the evidence pursuant to Code of Civil Procedure section 909.

_, Acting P.J. DOI TODD _, J. CHAVEZ