SAN DIEGO COUNTY v. EARL W

Filed 5/17/06

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

Story Continued from Part I ……..

The limited reversal approach 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, which is more expeditious than a full rehearing of all section 366.26 issues. Indeed, a new section 366.26 hearing would be subject to another appeal; by not following our practice we could easily age a child out of adoptability into long-term foster care, which is the least favored permanent plan. Further, we know of no rule or law that would prohibit use of this procedure in child dependency cases. (See In re Zeth S. (2003) 31 Cal.4th 396, 405 [review of juvenile dependency cases governed by general rules of appellate procedure].)

For some time, we have employed limited reversals in appeals involving defective ICWA notice with directions to reinstate the judgment if no Indian tribe chooses to intervene. (See, e.g., Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 262 [order]; In re S.M. (2004) 118 Cal.App.4th 1108, 1123 [judgment].) This practice also is prevalent among the Courts of Appeal in this state. (See, e.g., In re Marinna J. (2001) 90 Cal.App.4th 731 [3d Dist.]; In re Samuel P. (2002) 99 Cal.App.4th 1259 [6th Dist.]; In re Suzanna L. (2002) 104 Cal.App.4th 223 [4th Dist., Div. 2]; In re H.A. (2002) 103 Cal.App.4th 1206 [5th Dist.]; In re Glorianna K. (2005) 125 Cal.App.4th 1443 [2d Dist.].)

The limited reversal disposition in defective notice ICWA appeals is in keeping with the public policy of our child dependency scheme, which favors prompt resolution of cases. (See In re Marilyn H. (1993) 5 Cal.4th 295, 307, 309.) " The objective of the dependency scheme is to protect abused or neglected children and those at substantial risk thereof and to provide permanent, stable homes if those children cannot be returned home within a prescribed period of time." (Id. at p. 307.) Delay in this regard does not serve the child's best interest. (In re Emily L. (1989) 212 Cal.App.3d 734, 743.) After services have been terminated, " dependency actions [should] be resolved expeditiously." (In re Jesusa V. (2004) 32 Cal.4th 588, 625.) " Courts should strive to give the child [a] stable, permanent placement, and [a] full emotional commitment, as promptly as reasonably possible consistent with protecting the parties' rights and making a reasoned decision." (In re Celine R. (2003) 31 Cal.4th 45, 59.)

Furthermore, this approach also is in accordance with established principles of appellate practice, which focus on the evidence before the trial court and do not consider postjudgment events. Ordinarily, an appellate court is confined in its review to the proceedings that took place in the court below and are brought up for review in the record on appeal. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 328, p. 369.) Thus, " [m]atters occurring after entry of judgment are ordinarily not reviewable: The appeal reviews the correctness of the judgment or order as of the time of its rendition, leaving later developments to be handled in subsequent litigation." (9 Witkin, Cal. Procedure, supra, § 330, at pp. 371-372.) As the appellate court in one early case put it:

" The function of an appellate court is to review the action of the inferior court in rendering the judgment . . . from which the appeal is taken. For this purpose a record of the proceedings before the inferior court and of the matters presented for its action is brought to the appellate court, and in determining the correctness of the judgment . . . appealed from it is limited to a consideration of that record. If the judgment is affirmed such affirmance is as of the date at which it was rendered. If it is reversed the case stands as if no judgment had been rendered by the inferior court. It is therefore manifest that error on the part of the inferior court cannot be predicated by reason of any matter occurring subsequent to its rendition of the judgment, and it is equally evident that it would be irrelevant for the appellate court to entertain any evidence of such subsequent matters." (People's Home Saving Bank v. Sadler (1905) 1 Cal.App.189, 193-194.)

The California Supreme Court in In re Zeth S., supra, 31 Cal.4th at page 405 removed any doubt that these rules apply to dependency cases. " There is no blanket exception to the general rule for juvenile dependency appeals." (Ibid.)^[1]

Francisco's appellate counsel contends a new section 366.26 hearing after remand for ICWA notice is essential to protect a child's fundamental right to maintain his or her biological family; accordingly, our practice of limited reversals in such cases violates substantive due process principles. The contention is without merit.

Counsel points out section 366.26, subdivision (c)(1), which sets forth the procedure that must be followed before parental rights are terminated, requires a hearing be held in which the court determines if the child is adoptable at that time and whether any of the statutory exceptions to adoption exists. With an interval of " at least nine to ten months" to cure the ICWA notice defect, counsel argues due process mandates a new section 366.26 hearing and its procedural protections to allow the court to consider changes in circumstances that affect the child's adoptability before his or her biological ties are severed. Further, counsel argues we act in excess of our jurisdiction when we order the juvenile court to revisit only the ICWA issue because that is essentially telling the lower court to disregard the legislative mandate for a 366.26 hearing at which the child's current adoptability can be judged. We disagree with both arguments.

Francisco and Earl had the hearing required by section 366.26 in which they could have contested Francisco's adoptability, asserted a statutory exception to adoption applied, and argued adoption was not in the child's best interest, but they did not assert any of these claims. Francisco and Earl received the substantive due process protections built into section 366.26. Section 366.26 does not require - either expressly or impliedly - a second hearing when the sole reason for reversal is ICWA notice error. Curing the ICWA error is distinct and separate from the section 366.26 protections.

We similarly reject counsel's argument that we act in excess of our jurisdiction.

Counsel relies upon In re S.D. (2002) 99 Cal.App.4th 1068, In re Baby Girl M. (1984) 37 Cal.3d 65, and In re Arturo A. (1992) 8 Cal.App.4th 229 to support her proposition that changing circumstances must or should be considered on remand. The cases are inapposite: the first is not an ICWA case; and the latter two predate implementation of our current statutory dependency scheme. Further, In re Baby Girl M., supra, is not a dependency case.

Counsel has not raised any adverse consequence to Francisco by reinstating an otherwise valid order, if no tribe intervenes. Francisco was placed with his maternal grandmother, who wants to adopt him, and there is no indication the relevant circumstances have or will change. We see no justification in requiring the juvenile court to revisit the issue of his adoptability when it was not questioned at trial or on appeal. If we view counsel's call for us to drop our practice of limited reversals in all ICWA cases, the dire consequences she predicts are speculative at best. Another problem with counsel's position is that in every case we would have to remand for a new section 366.26 hearing, with the attendant delays for notice, trial and appeal. Counsel has not offered any support for the sweeping general principle she and Earl's counsel advocate.

As indicated above, we adopted our practice of limited reversals because it 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.

We acknowledge there very well might be exceptional cases -- those in which significant circumstances have changed during the pendency of the appeal and have adversely affected the likelihood of the child being adopted, and for which an alternate disposition would be in order to avoid a result adverse to the child upon remand. However, we reject the argument of Francisco's counsel and Earl's counsel that our practice of limited reversals in ICWA notice cases effectively ties the hands of the juvenile court on remand and prevents it from reacting to such changes in circumstances. Rather, we find the law accommodates the extraordinary case in which a postjudgment change in circumstances makes it unlikely the child will be adopted, and our limited reversal practice does not infringe upon these accommodations.

The Legislature recently addressed the problem of postjudgment changes in circumstances affecting a child's adoptability by enacting section 366.26, subdivision (i)(2). (See Stats. 2005, ch. 640, § 6.1, pp. 3849-3850.) This provision allows a child who has not been adopted after three years to petition the juvenile court to reinstate parental rights, thereby allowing a different permanent plan to be chosen. (§ 366.26, subd. (i)(2).) The provision also allows a child to file the petition earlier than three years if the child welfare agency stipulates the child is no longer likely to be adopted. (Ibid.) Section 366.26, subdivision (i)(2) is expressly retroactive. (Ibid.)^[2]

In our view, section 366.26, subdivision (i)(2) provides the juvenile court with adequate opportunity to restore parental rights if the circumstances demand it. The three-year period set forth in the first sentence of section 366.26, subdivision (i)(2) does not seem to us to be an insurmountable barrier to a just result. A large part of the three-year threshold period will have passed by the time the case has been reviewed by the appellate court, remanded to cure the notice error, had the judgment reinstated (if the child is found not to be an Indian child) and the case again reviewed on appeal. Furthermore, if the changed circumstances are of such magnitude as those hypothesized by Francisco's appellate counsel in this case, we see no reason why the relevant parties -- that is, Agency and the child -- would not agree to stipulate that the likelihood of adoption no longer exists, thereby allowing the child to petition the court for reinstatement of the parental rights prior to the expiration of the three-year period as set forth in the second sentence of section 366.26, subdivision (i)(2).

Thus, we conclude our limited reversal practice is not an obstacle to the juvenile court preventing the child from becoming a legal orphan, a " disfavor[ed] . . . status." (In re Jerred H. (2004) 121 Cal.App.4th 793, 799; see also In re Jayson T. (2002) 97 Cal.App.4th 75, 85, disapproved on other grounds in In re Zeth S., supra, 31 Cal.4th at pp. 413-414 [legal orphanage is a consequence the law abhors].)^[3]

We reiterate that our purpose in adhering to the limited remand option in ICWA notice cases is to avoid unnecessary delay in section 366.26 appeals. Recognizing that through the passage of time alone, a child may become unadoptable, we have adopted our limited reversal practice, which is a more streamlined procedure and far more expeditious than an unlimited remand. After all, the more time that passes before an adoption is finalized, the greater the chance that a child's likely-to-be adopted status will change. Discarding our limited reversal practice and instead ordering only full remands, would increase the likelihood of a child previously found to be adoptable becoming unadoptable by the end of the appellate process. In other words, full remands are more likely to result in legal orphans than our current practice of limited reversals.

In conclusion, we reject counsel's argument that our practice of limited remands in ICWA notice cases leaves the juvenile court without power to act when postjudgment developments render a child no longer likely to be adopted. Further, we conclude that a limited remand does not present any reasonable likelihood of a miscarriage of justice to a dependent child that cannot be remedied by the juvenile court or the reviewing court. (See § 366.26, subd. (i)(2).)

DISPOSITION

The judgment terminating parental rights is reversed and the case is remanded to the juvenile court with directions to order Agency to comply with the notice provisions of ICWA, the relevant case law interpreting ICWA and the views expressed in this opinion, and to file all required documentation with the juvenile court for the court's inspection. If, after proper notice, a tribe claims Francisco is an Indian child, the juvenile court shall proceed in conformity with all provisions of ICWA. If, on the other hand, no tribe claims that Francisco is an Indian child, the judgment terminating parental rights shall be reinstated.

CERTIFIED FOR PUBLICATION

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

McINTYRE, J.

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^[1] We acknowledge, as Francisco's appellate counsel points out, that dependency proceedings are special proceedings, which are governed by their own rules and statutes. (§ 300 et seq.; rule 1440 et seq.) Further, " [u]nless otherwise specified, the requirements of the Civil Code and the Code of Civil Procedure do not apply" to dependency proceedings. (In re Jennifer R. (1993) 14 Cal.App.4th 704, 711.) " However, in the absence of a dispositive provision in the Welfare and Institutions Code, we may look to these requirements [provisions of the Civil Code and Code of Civil Procedure] for guidance." (In re Josiah Z. (2005) 36 Cal.4th 664, 679.)

^[2] Section 366.26, subdivision (i)(2) reads: A child who has not been adopted after the passage of at least three years from the date the court terminated parental rights and for whom the court has determined that adoption is no longer the permanent plan may petition the juvenile court to reinstate parental rights pursuant to the procedure prescribed by Section 388. The child may file the petition prior to the expiration of this three-year period if the State Department of Social Services or licensed adoption agency that is responsible for custody and supervision of the child . . . and the child stipulate that the child is no longer likely to be adopted. A child over 12 years of age shall sign the petition in the absence of a showing of good cause as to why the child could not do so. If it appears the best interests of the child may be promoted by reinstatement of parental rights, the court shall order that a hearing be held and shall give prior notice, or cause prior notice to be given, to the social worker or probation officer and to the child's attorney of record, or, if there is no attorney of record for the child, to the child, and the child's tribe, if applicable, by means prescribed by subdivision (c) of Section 297. The court shall order the child or the social worker or probation officer to give prior notice of the hearing to the child's former parent of parents whose parental rights were terminated in the manner prescribed by subdivision (f) of Section 294 where the recommendation is adoption. The juvenile court shall grant the petition if it finds by clear and convincing evidence that the child is no longer likely to be adopted and that reinstatement of parental rights is in the child's best interest. If the court reinstates parental rights over a child who is under 12 years of age and for whom the new permanent plan will not be reunification with a parent of legal guardian, the court shall specify the factual basis for its findings that it is in the best interest of the child to reinstate parental rights. This subdivision is intended to be retroactive and applies to any child who is under the jurisdiction of the court at the time of the hearing regardless of the date parental rights were terminated."

^[3] Termination of parental rights not followed by adoption makes the child a legal orphan. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1062.)