In re A.G.
Filed 10/3/13 In re A.G. CA1/3
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opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
THREE
In re A.
G., a Person Coming Under the Juvenile Court Law.
ALAMEDA
COUNTY SOCIAL SERVICES AGENCY,
Petitioner and Respondent,
v.
A.G.,
Defendant and Appellant.
A137605, A138150
(Alameda
County
Super. Ct.
No. HJ0801940)
Father
appeals the denial of a petition to modify an order terminating his parental
rights filed after this court issued a limited reversal and remanded so the
juvenile court could require compliance with the
re A.G. (2012) 204 Cal.App.4th 1390 (A.G.)). Father contends the juvenile court was
incorrect when it ruled that our disposition in A.G. precluded it from exercising jurisdiction over his
modification petition. We agree with the
juvenile court that our remand was for the limited purpose of complying with
ICWA and affirm.
The history of this case is set out in our two prior
opinions (A.G., supra, 204 Cal.App.4th 1390; In
re A.G. (April 13, 2011, A130942 [nonpub. opn.])),
and we incorporate it here by reference.
In 2012, we conditionally reversed the juvenile court’s order
terminating Father’s parental rights as to A.G. on the sole ground that the
Alameda County Social Services Agency (the Agency) failed to comply with ICWA’s
inquiry and notice requirements. (
case to the juvenile court with directions that it order the Agency to
investigate and obtain complete and accurate information about Father’s
relatives, and to provide corrected ICWA notices to the relevant tribes. Our disposition further directed that “[i]f a
tribe intervenes after receiving proper notice, the court shall proceed in accordance
with ICWA. If no tribes intervene after
receiving proper notice, the order terminating Father’s parental rights shall
be reinstated.†(Id. at p. 1402.)
On
remand, the juvenile court commenced the ICWA compliance proceedings directed
by this court. Since then, Father has
filed four modification petitions under Welfare and Institutions Code
section 388.
title="">[1] This appeal concerns only
the most recent one of these, in which Father sought visitation and
correspondence with A.G.
name="_ftnref2" title="">[2] As changed circumstances warranting
modification, Father cited the conditional reversal of the order terminating
parental rights, a letter from A.G. that expressed love for his father, and a
social worker’s report that “[A.G.] grieved the loss of his parents.â€
The
juvenile court ruled that it lacked jurisdiction to consider the petition in
light of the limited scope of the remand from this court and denied it on that
basis. Father timely appealed.
Father contends the juvenile court wrongly concluded
the section 388 petition to modify was beyond its circumscribed jurisdiction on
remand. His contention is meritless.
965 (Terrance B.) is
dispositive. In Terrance B., as in this case, the appellate court issued a limited
reversal of an order terminating parental rights for failure to comply with
ICWA’s notice provisions and remanded the case to require compliance with
ICWA. The disposition provided that
“ ‘[i]f, after proper inquiry and notice, a tribe claims Terrance is an
Indian child, the juvenile court shall proceed in conformity with all
provisions of ICWA. If, on the other
hand, no response is received or no tribe claims that Terrance is an Indian
child, the judgment terminating parental rights shall be reinstated.’ †(Id.
at p. 970.) Following the remittitur,
Terrance’s mother filed a section 388 petition asking the juvenile court to
reverse its order terminating parental rights and to place Terrance with
her. The court summarily denied the
petition as beyond its limited jurisdiction.
(Ibid.) The appellate court affirmed. It explained:
“The
appellate court’s order for a retrial on a limited issue, contained in its
remittitur, ‘revests the jurisdiction of the subject matter in the lower court
and defines the scope of the lower court’s jurisdiction. “The order of the appellate court as stated
in the remittitur[ ] ‘is decisive of the character of the judgment to which the
appellant is entitled. The lower court
cannot reopen the case on the facts, allow the filing of amended or
supplemental pleadings, nor retry the case, and if it should do so, the
judgment rendered thereon would be void.’ [Citation.]†[Citations.]’
[Citation.] Thus, when a judgment is reversed on appeal with directions to the
trial court to enter a specific judgment, that reversal ‘. . . “determines the
merits of the cause just as effectively as though the judgment were affirmed on
appeal.†’[Citation.]†(
This
limited reversal approach, as Terrance B.
observes, “is well adapted to dependency cases involving termination of
parental rights in which we find the only error is defective ICWA notice. This approach allows the juvenile court to
regain jurisdiction over the dependent child and determine the one remaining
issue. The parties already have
litigated all other issues at the section 366.26 hearing, and it is not
necessary to have a complete retrial.
Thus, the child is afforded the protection of the juvenile court, and,
at the same time, his or her case is processed to cure the ICWA error. . . .’
[Citation.] In this regard the practice of limited reversals in defective
notice ICWA appeals ‘promotes the child’s best interests and the public policy
of this state—namely, that when reunification is not feasible, a permanent home
should be found for the child in the most expeditious manner possible under the
law. If the only error requiring
reversal of the judgment terminating parental rights is defective ICWA notice
and it is ultimately determined on remand that the child is not an Indian
child, the matter ordinarily should end at that point, allowing the child to
achieve stability and permanency in the least protracted fashion the law
permits.’ †(Terrance B., supra, 144
Cal.App.4th at p. 972.)
Father
argues this case is different because, after remand and proper ICWA notice, the
Cherokee Nation identified A.G. as
an Indian child. Relying on
and In re Francisco W. (2006) 139
Cal.App.4th 695, he maintains that the Cherokee Nation’s response automatically
vested the juvenile court with full subject matter jurisdiction because it
identified A.G. as an Indian child. But
Father’s factual premise is faulty. The
Cherokee Nation responded that “the Indian Child Welfare Program has examined
the tribal records and the above named child/children can possibly be traced in our tribal records based on the extended
family member/s you provided and are highlighted above. The relationship makes the above listed
child/children eligible for enrollment and affiliation with [the] Cherokee
Nation by having direct lineage to an enrolled member.†While the response indicates that A.G.
does not establish that he is an Indian child within the meaning of ICWA. (See 25 U.S.C. § 1903(4) [Indian child is an
unmarried person under 18 who is either a member of an Indian tribe or eligible
for membership and the biological child of a member of an Indian tribe].)
In
any event, our unambiguous disposition in A.G.
expressly limited the juvenile court’s jurisdiction on remand to addressing the
notice issues and reinstating the prior section 366.26 order unless a properly
noticed tribe were to intervene.
Contrary to Father’s claims, such dispositions are prevalent among the
courts of appeal in this state and are “legally authorized, consistent with the
best interests of children, and in keeping with
practice.†(In re Francisco W., supra,
exceeded the juvenile court’s limited jurisdiction on remand and was therefore
correctly denied.
The order of the juvenile court is affirmed.
_________________________
Siggins,
J.
We concur:
_________________________
McGuiness, P.J.
_________________________
Jenkins, J.
name="_ftn1" title=""> [1]
All further statutory references are to the Welfare and Institutions Code.
name="_ftn2" title=""> [2]
We consolidated Father’s appeal from the denial of one of his earlier modification
petitions with this appeal, but his opening brief addresses only his request
for visitation. Father has therefore
forfeited appellate review of the earlier order. (In re
Daniel M. (2003) 110 Cal.App.4th 703, 707, fn. 4.)
