Who's In Charge During Appeal?

In In re K.M. (G051656 Nov. 20, 2015) 4/3 recently reminded dependency courts and practitioners a juvenile court lacks jurisdiction to modify a section 366.26 order terminating parental rights, even to "fix" the Agency's defective Indian Child Welfare Act ("ICWA") notice in order to head off an inevitable reversal. After the parents filed their appellate briefs, rather than stipulating to a limited reversal (which presumably would have been inconvenient for the Agency's appellate statistics) the Agency undertook the required ICWA notice, obtaining letters from tribes "declining K.M. for tribal membership." So armed, the Agency obtained a post-judgment trial court order to the effect the ICWA did not apply then asked the Court of Appeal to dismiss the appeal as moot. Before reaching its conclusion, the Court discussed the appropriate mechanism by which this type of information may be brought before the reviewing court, a topic of interest to all practitioners. Augmentation was inappropriate because the matter was not before the trial court. For the same reason, judicial notice did not fit the bill. Additionally, a court cannot take judicial notice of the truth of matters in documents. However, CCP 909 was procedurally correct as the purpose ostensibly was to show the appeal was moot. The Court explained granting the Agency's motion to get the information in front of the Court was "a hollow victory" because the trial court had no jurisdiction "to consider SSA['s] belated remedial ICWA efforts because it was in substance a collateral attack on the termination order," prohibited by section 366.26, subdivision (I)(1), hence it was void, demonstrating the general rule that the Court of Appeal, not the trial court, has jurisdiction over an order which is the subject of the appeal is even stronger in termination of parental rights cases.