SAN DIEGO COUNTY v. EARL W

Filed 5/17/06

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Cynthia Bashant, Judge. Reversed and remanded with directions.

John J. Sansone, County Counsel, Susan Strom, Chief Deputy County Counsel, L. David Casey, Deputy County Counsel, for Plaintiff and Respondent.

Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant.

Andrea Renee St. Julian, under appointment by the Court of Appeal, for the Minor.

In this appeal of the termination of parental rights based on noncompliance with the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.), we are asked to reexamine our practice of limited reversals and remands in which we instruct the juvenile court to correct the ICWA notice defect and reinstate the prior judgment of termination if no Indian tribe chooses to intervene in the proceeding.

Earl W. and appellate counsel for his dependent child, Francisco W., contend that we should depart from our usual practice in ICWA cases and reverse the judgment without limitation, thereby allowing the juvenile court to revisit dependency issues outside ICWA. Francisco's counsel claims such limited reversals (1) violate due process, (2) are inconsistent with a child's best interests, and (3) prevent the juvenile court from considering changes in the child's circumstances concerning his or her adoptability. Earl has joined in and adopted by reference the brief submitted by Francisco's counsel. (Cal. Rules of Court, rule 13(a)(5).)^[1]

PROCEDURAL AND FACTUAL BACKGROUND

On the night of November 3, 2003, Earl brought his wife Corina L. to the maternal grandmother's house and refused to give Corina a key to their residence.^[2] An argument ensued. When Earl drove away, Corina, who was holding 11-month-old Francisco, started chasing her husband. Corina fell and dropped Francisco on a neighbor's lawn. Corina continued to pursue Earl, leaving Francisco on the grass. The maternal uncle found Francisco and brought him to the maternal grandmother's house. The maternal grandmother refused to give Francisco to Corina until the police responded because she feared the child was at risk. The paternal grandmother told the social worker that she had Native Indian heritage through the Cherokee tribe.

On November 6, 2003, the San Diego County Health and Human Services Agency (Agency) filed a dependency petition on behalf of Francisco, alleging he was at substantial risk of harm because his parents failed to adequately supervise and protect him. (Welf. & Inst. Code, § 300, subd. (b).)^[3] The original petition listed Earl as an alleged father.

In his paternity questionnaire, Earl indicated he possibly had Cherokee heritage. The court ordered paternity tests and deferred ICWA findings until it received the test results. The paternal grandmother, along with numerous relatives, attended the detention hearing.

Also in November, the social worker sent ICWA notices to the Bureau of Indian Affairs (BIA), and the three federally recognized Cherokee tribes. The boxes in the child family history section of the form were largely left blank, and the social worker did not include any background information (e.g., birth date, birthplace) for the paternal grandmother even though she had made herself available.^[4]

On December 1, 2003, Corina submitted to the petition, which the court sustained. The court declared Francisco a dependent child, placed him in the maternal grandmother's home and ordered the parents to comply with their case plans.^[5] The paternal grandmother attended the jurisdictional hearing.

On January 22, 2004, Agency received a response from the Cherokee Nation of Oklahoma, stating the tribe did not consider Francisco to be an Indian child based on the information supplied to it.

At the six-month review hearing on June 1, 2004, the court ordered six more months of reunification services. The court also ordered Agency to renotice the Cherokee tribes for the scheduled 12-month review hearing in December.

In August 2004, Agency mailed notices to the BIA and the three Cherokee tribes for the second time. The record on appeal contains only a copy of the notice sent to the BIA. The name of the paternal grandfather and his " Cherokee" tribal affiliation were included in this notice, but not his birth date or birthplace. Most of the boxes requesting information were marked " unknown" as opposed to being left blank as they were in the first round of notices. Neither copies of the notices sent to the Cherokee tribes nor certified mail receipts showing when the tribes received the second notices are included in the record. The BIA responded that it needed more information to determine if

Francisco was an Indian child. The United Keetoowah Band of Cherokee Indians of Oklahoma and the Eastern Band of Cherokee Indians indicated that based on the information supplied to them, Francisco was not a member of their respective tribes and they would not intervene.

Subsequently, Earl and Corina moved to Ohio to live with the maternal grandfather. Francisco continued to reside with his maternal grandmother in San Diego.

On January 4, 2005, the court ordered Agency to again send out ICWA notices to the Cherokee tribes because the court file did not contain copies of the notices previously sent. Again, in the new round of notices, most of the boxes requesting information in the pertinent form were marked unknown. The record indicates the Cherokee Nation received the notice on January 17, and the Eastern Band of Cherokee Indians received the notice on January 18. The record does not contain a certified mail receipt for the United Keetoowah Band of Cherokee Indians.

On January 26, 2005, the court found the Cherokee tribes were properly noticed. On February 2, the court found ICWA did not apply after Agency indicated no tribes had responded to the latest batch of notices.

On February 10, 2005, the court also terminated services and set a section 366.26 hearing.

Agency assessed Francisco as likely to be adoptable, characterizing him as an " adorable[] and sociable" two-year-old in good health, who was attached to his caregiver. For the previous 18 months, Francisco had been in the home of his caregiver, who wanted to adopt him. In addition to the caregiver, there were 18 other approved adoptive homes willing to adopt a child with Francisco's characteristics.

On July 19, 2005, the court found, by clear and convincing evidence, that it was likely Francisco will be adopted if parental rights were terminated, none of the statutory exceptions to adoption existed in this case, and adoption was in Francisco's best interest. The court terminated parental rights.

Earl filed a timely notice of appeal.

In January 2006, attorneys for Earl, Agency and Francisco signed a Joint Application and Stipulation for Reversal of Judgment. The stipulation called for us to reverse the judgment and remand the matter with directions to order Agency to renotice BIA and the three Cherokee tribes in accordance with ICWA and case law. The stipulation also provided that if no tribe claimed Francisco as an Indian child, the judgment terminating parental rights would be reinstated.

On February 6, 2006, we granted the request by Francisco's counsel to withdraw his consent to the stipulated reversal and ordered the stipulation withdrawn. Counsel for Earl also filed a request to withdraw his consent for the stipulated reversal.

DISCUSSION

I

ICWA VIOLATIONS AND NEED FOR REVERSAL ARE NOT DISPUTED

Earl contends the juvenile court erred by proceeding with the section 366.26 hearing because the ICWA notices sent to the BIA and the Cherokee tribes were insufficient. Earl also contends there was insufficient evidence supporting the court's finding that timely ICWA notice had been given.

In 1978, Congress enacted ICWA, which allows an Indian tribe to intervene in dependency proceedings, to " protect the best interests of Indian children and to promote the stability and security of Indian tribes and families." (25 U.S.C. § 1902.)

ICWA sets forth specific notice requirements:

" [W]here the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify . . . the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention." (25 U.S.C. § 1912(a).)

If the tribe's identity cannot be determined, notice must be given to the BIA. (25 U.S.C. § 1912(a).) The Indian tribe determines whether the child is an Indian child. (In re Desiree F. (2000) 83 Cal.App.4th 460, 470.) " 'A tribe's determination that the child is or is not a member of or eligible for membership in the tribe is conclusive.' " (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 255.)

Notice must be sent when there is reason to believe the child may be an Indian child. (Rule 1439(f)(5).) " [T]he juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement." (In re Nikki B. (2003) 106 Cal.App.4th 844, 848.)

ICWA notice requirements are strictly construed. (In re Karla C. (2003) 113 Cal.App.4th 166, 174.) The notice sent to the BIA and/or Indian tribes must contain enough information to be meaningful. (Id. at p. 175.) The notice must include: if known, (1) the Indian child's name, birthplace, and birth date; ( 2) the name of the tribe in which the Indian child is enrolled or may be eligible for enrollment; (3) names and addresses of the child's parents, grandparents, great grandparents, and other identifying information; and ( 4) a copy of the dependency petition. (Ibid.) To enable the juvenile court to review whether sufficient information was supplied, Agency must file with the court the ICWA notice, return receipts and responses received from the BIA and tribes. (Id. at pp. 175, 178-179.)

It is essential to provide the Indian tribe with all available information about the child's ancestors, especially the one with the alleged Indian heritage. (In re Louis S. (2004) 117 Cal.App.4th 622, 631.) Notice to the tribe must include available information about the maternal and paternal grandparents and great-grandparents, including maiden, married and former names or aliases; birthdates; place of birth and death; current and former addresses; tribal enrollment numbers; and other identifying data. (Id. at p. 630.)

Under ICWA, no foster care placement or termination of parental rights proceeding may be held until at least 10 days after the tribe receives notice. (25 U.S.C. § 1912(a); see also rule 1439(h).) The court must wait at least 60 days following the sending of notice to determine that ICWA does not apply based on the lack of a " determinative response to the notice." (Rule 1439(f)(6).)

Agency concedes that the juvenile court's rulings regarding the adequacy of the ICWA notices were erroneous. We agree. Even though Agency sent three sets of notices, none of them included sufficient information that would allow the tribes or the BIA to determine Francisco's membership or eligibility for membership. (In re Karla C., supra, 113 Cal.App.4th at p. 175; In re Louis S., supra, 117 Cal.App.4th at pp. 630-631.) These defects persisted even though Agency easily could have contacted the paternal grandmother for additional pertinent information.^[6]

II

PARTIES DISPUTE PROPRIETY OF LIMITED REVERSALS IN ICWA CASES

At issue is the propriety of our practice - as well as that of our colleagues in various other districts - in dependency cases with ICWA notice irregularities to issue limited reversals in which we order the judgment to be reinstated if no Indian tribe intervenes after proper notice is given. As explained below, we conclude this practice is legally authorized, consistent with the best interests of children, and in keeping with fundamental principles of appellate practice. Further, contrary to the positions advanced by Earl's and Francisco's appellate counsel, this approach does not infringe upon due process rights and does not - particularly with the recent enactment of statutory provisions - prevent the juvenile court from considering changes in the dependent child's circumstances concerning his or her adoptability.

As an appellate court, we have the power to select among several permissible dispositions of a case on appeal, which are set forth in section 43 of the Code of Civil Procedure. The statute, which dates back to 1872, provides that a reviewing court has authority to " affirm, reverse, or modify any judgment or order appealed from, and may

direct the proper judgment or order to be entered, or direct a new trial or further proceedings to be had." (Code of Civ. Proc., § 43.) Moreover, " [i]t is a firmly established principle of law that '[t]he appellate courts have power to order a retrial on a limited issue, if that issue can be separately tried without such confusion or uncertainty as would amount to be a denial of a fair trial.' [Citation.] The underlying rationale is easy to discern: to require a complete retrial when an issue could be separately tried without prejudice to the litigants would unnecessarily add to the burden of already overcrowded court calendars and could be unduly harsh on the parties." (Torres v. Automobile Club of So. California (1997) 15 Cal.4th 771, 776.)

When a judgment is reversed with directions, the appellate court's order is contained in its remittitur, which 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.]" (Hampton v. Superior Court (1952) 38 Cal.2d 652, 656; Bach v. County of Butte (1989) 215 Cal.App.3d 294, 301.) " The reversal of a judgment on appeal with directions to the trial court to enter a specific judgment determines the merits of the cause just as effectively as though the judgment were affirmed on appeal." (Lial v. Superior Court (1933) 133 Cal.App. 31, 34.)

Story Continued in Part II ……..

Publication Courtesy of California attorney directory.

Analysis and review provided by Oceanside Apartment Manager Attorneys.

^[1] All rule references are to the California Rules of Court.

^[2] Corina is not a party to this appeal and will be discussed only as relevant to the appeal.

^[3] All further statutory references are to the Welfare and Institutions Code unless otherwise specified.

^[4] On the form sent to the Cherokee Nation of Oklahoma, the name of the paternal grandmother was not listed.

^[5] The court ordered Earl to comply with his case plan even though the paternity test results had not been received and he continued to be listed as an alleged father on the petition. On December 22, 2003, after receiving the paternity test results, the court amended the petition to list Earl as the biological father.

^[6] The juvenile court also did not wait the mandatory 60 days under rule 1439(f)(6) when it declared ICWA did not apply on February 2, 2005.