Opinion
E041526
5-8-2007
In re FAITH M., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. M.M., Defendant and Appellant.
Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Joe S. Rank, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent. Lori A. Fields, under appointment by the Court of Appeal, for Minor.
NOT TO BE PUBLISHED
M.M. appeals from an order terminating his parental rights to his toddler-age daughter, Faith M. He argues that the Department of Public Social Services (the Department) failed to comply with the notice provisions of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1912(a)). The Department concedes that, for this reason, reversal is required.
M.M., however, also argues that we must reverse not only as to Faith, but also as to her two half sisters — daughters of the same mother but a different father. Moreover, both M.M. and Faith have asked us to take additional evidence on appeal, arguing that, in light of this additional evidence, we should direct the juvenile court to hold a new hearing pursuant to Welfare and Institutions Code section 366.26 (section 366.26).
We will reject both of these additional contentions. Rather, we will conclude that, as in the usual case of an ICWA notice violation, the appropriate appellate remedy is a conditional reversal and a limited remand, solely as to Faith.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. Facts as Shown by the Record.
J.G. (the mother) is the mother of all three girls involved in this dependency proceeding: D.G. (now aged six), H.G. (now aged five), and Faith M. (now aged three). Appellant M.M. is the father of Faith only.
Prior to the jurisdictional/dispositional hearing, the mother told the social worker that she might have Cherokee Indian ancestry. Accordingly, in several successive reports, the social worker stated that she had sent Form SOC 318, by certified mail, to the Eastern Band of Cherokee Indians of North Carolina, the United Keetoowah Band of Cherokee Indians in Oklahoma, and the Cherokee Nation, Oklahoma; all three had responded that the children were not members of, or eligible for membership in, the tribe. The tribes responses were filed with the court. The Form SOC 318s, however, were not. The juvenile court eventually found that "[n]otice has been provided pursuant to ICWA."
According to a bonding study, the three sisters were "remarkably emotionally close" and "remarkably bonded to one another." It added that "they would most likely experience a deleterious emotional response to be [sic] separated from one another which would be detrimental to them." In May 2006, they were all placed together in a prospective adoptive home.
In August 2006, at a hearing pursuant to section 366.26, the juvenile court terminated parental rights to all three girls.
M.M. has appealed. The mother has not. Indeed, her whereabouts are unknown. The father of D.G. and H.G. likewise has not appealed.
B. Additional Facts as Shown by the Minors Motion.
Faith has filed a motion asking us to take additional evidence on appeal. (See Code Civ. Proc., § 909.) M.M. has joined in that motion. The additional evidence offered is as follows.
Once in their prospective adoptive home, all three girls began "act[ing] out sexually with each other and individually." The Department believes this was the result of something — it is investigating precisely what — that happened in the girls previous placement. The prospective adoptive family has refused to proceed with the adoption. In November 2006, the girls were removed from the prospective adoptive home; D.G. and H.G. were placed together, in one foster home, and Faith was placed separately, in a second foster home.
The Department believes that all three girls are adoptable, although not as a sibling set; at a minimum, Faith would probably have to be placed separately from D.G. and H.G. Also, H.G.s paternal grandmother, who lives out of state, is considering adopting H.G. only. Before making any adoptive placement, the Department wants to obtain a new sibling bonding study. It also wants to obtain counseling for all three girls. As of February 2007, H.G. had started counseling, D.G. was scheduled to start counseling, and Faith had not yet been set for counseling.
II
DISCUSSION
The Department concedes that it failed to demonstrate substantial compliance with the notice requirements of the ICWA (see former Cal. Rules of Court, rule 1439(f); see now Cal. Rules of Court, rule 5.664(f); see also In re Karla C. (2003) 113 Cal.App.4th 166, 178-179; In re Asia L. (2003) 107 Cal.App.4th 498, 507-509) and therefore that we must reverse. As usual, however, the devil is in the details: The parties hotly dispute the appropriate scope of our remand order.
A. Reversal as to D.G. and H.G.
M.M. asks us to reverse with respect to all three girls. The Department responds that, because M.M. is not the father of D.G. and H.G., he lacks standing to obtain a reversal as to them. We agree.
"The appellant in a dependency proceeding must be `aggrieved. [Citations.]" (In re Jonathon S. (2005) 129 Cal.App.4th 334, 338-339 [Fourth Dist., Div. Two].) "To be aggrieved, a party must have a legally cognizable interest that is injuriously affected by the courts decision. [Citation.]" (In re H.G. (2006) 146 Cal.App.4th 1, 9.) M.M. has no parental rights to, nor other legally cognizable interest in, D.G. and H.G. Hence, he has no standing to obtain reversal of the order terminating parental rights to them. (See In re Jeffrey A. (2002) 103 Cal.App.4th 1103, 1108-1109 [mother lacked standing to argue that ICWA notice was not given to biological father].)
It is true that, as M.M. argues, "`notice is intended to protect the interests of Indian children and tribes despite the parents inaction. [Citation.]" (In re X.V. (2005) 132 Cal.App.4th 794, 803, quoting Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 261.) For this reason, ordinarily, a parent who failed to raise an ICWA notice violation below — a failure that would otherwise constitute a waiver — can raise it on appeal; "`"[t]he notice requirements serve the interests of the Indian tribes `irrespective of the position of the parents and cannot be waived by the parent. [Citation.]" [Citation.] [Citation.]" (In re S.B. (2005) 130 Cal.App.4th 1148, 1159 [Fourth Dist., Div. Two].)
Nevertheless, a parent can effectively "waive" the tribes right to notice in at least two ways: (1) by failing to appeal at all, and (2) by failing to raise the ICWA notice issue on appeal. If the issue is not raised by a properly appealing party, we have no obligation to raise it on our own motion. The tribes remedy is to file a petition to invalidate the juvenile court proceedings pursuant to title 25 United States Code section 1914. (See generally In re Jonathon S., supra, 129 Cal.App.4th at pp. 341-342.) Here, D.G. and H.G. have a mother and a father who have not appealed. In the proceedings involving them, M.M. might as well be a stranger. He has not demonstrated any basis on which we could exercise jurisdiction with respect to them.
B. A Full Rather than a Limited Remand.
In conjunction with Faiths motion to take additional evidence on appeal, M.M. asks us to order a full — rather than a limited — remand. Faith does not clearly specify what we should do with the additional evidence; she has merely asked us to grant the motion and then to order further briefing. Apparently, however, she wants us either (1) to reverse based on the ICWA notice violation, or (2) to reverse (a) the adoptability finding and/or (b) the finding that the beneficial sibling relationship exception (§ 366.26, subd. (c)(1)(E)) does not apply, and, in either event, to order a full remand. The Department opposes a full remand for any reason.
Except in a "rare and compelling case," we cannot "receive and consider postjudgment evidence that was never before the juvenile court, and rely on such evidence outside the record on appeal to reverse the judgment[.]" (In re Zeth S. (2003) 31 Cal.4th 396, 399.) "[C]onsideration of postjudgment evidence of changed circumstances in an appeal of an order terminating parental rights, and the liberal use of such evidence to reverse juvenile court judgments and remand cases for new hearings, would violate both the generally applicable rules of appellate procedure, and the express provisions of section 366.26 which strictly circumscribe the timing and scope of review of termination orders, for the very purpose of expediting the proceedings and promoting the finality of the juvenile courts orders and judgment." (Id. at p. 413, fn. omitted.)
"It has long been the general rule and understanding that `an appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration. [Citation.] This rule reflects an `essential distinction between the trial and the appellate court . . . that it is the province of the trial court to decide questions of fact and of the appellate court to decide questions of law . . . . [Citation.] The rule promotes the orderly settling of factual questions and disputes in the trial court, provides a meaningful record for review, and serves to avoid prolonged delays on appeal." (In re Zeth S., supra, 31 Cal.4th at p. 405, quoting In re James V. (1979) 90 Cal.App.3d 300, 304 & Tupman v. Haberkern (1929) 208 Cal. 256, 262-263.)
Moreover, "[g]iven the states strong interest in the expeditiousness and finality of juvenile dependency proceedings [citation], the statutory scheme generally does not permit the critical findings and orders made prior to the final setting of the [section] 366.26 hearing to be reopened and relitigated in an appeal from the order terminating parental rights. . . . And the Legislature has further expressly provided that the final order terminating parental rights and freeing the child for adoption itself cannot be collaterally attacked in the trial court. [Citation.]" (In re Zeth S., supra, 31 Cal.4th at pp. 412-413, fn. omitted.)
The Supreme Court has acknowledged "that where postjudgment evidence stands to completely undermine the legal underpinnings of the juvenile courts judgment under review, and all parties recognize as much and express a willingness to stipulate to reversal of the juvenile courts judgment, an appellate court acts within its discretion in accepting such a stipulation and reversing the judgment. Beyond that scenario, however, the nature and scope of any exception to the general rule of nonadmissibility of postjudgment evidence in an appeal by a parent or parents from an order terminating parental rights must await a case in which the facts squarely present the issue." (In re Zeth S., supra, 31 Cal.4th at pp. 413-414, fn. 11.)
While M.M. and Faith definitely want us to consider postjudgment evidence, they do not necessarily want us to reverse the judgment based on such evidence (which Zeth S. clearly forbids). Arguably, the ICWA notice violation requires reversal in any event, and the additional evidence is merely relevant to whether we should order a full remand or a limited remand. However, as we will discuss below, we are prohibited from considering postjudgment evidence, even for this purpose, except in a rare and compelling case.
The standard appellate remedy for an ICWA notice violation is a conditional reversal, followed by a limited remand. We should direct the juvenile court to correct the notice violation; however, we should also direct it, if it finds that the child is not an Indian child within the meaning of the ICWA, to reinstate the order appealed from. (In re Suzanna L. (2002) 104 Cal.App.4th 223, 237 [Fourth Dist., Div. Two]; In re Marinna J. (2001) 90 Cal.App.4th 731, 740.)
This "approach is well adapted to dependency cases involving termination of parental rights in which we find the only error is defective ICWA notice. [It] 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." (In re Francisco W. (2006) 139 Cal.App.4th 695, 705.)
Recently, in In re Francisco W., supra, 139 Cal.App.4th 695, the appellant challenged the propriety of a limited remand, arguing that it prevents the juvenile court from considering interim changes in the childs adoptability that could result in the child becoming a "legal orphan." (Id. at pp. 699, 704, 707, 710.) The appellate court disagreed, for two reasons.
First, it explained, "[c]ounsel has not raised any adverse consequence to Francisco by reinstating an otherwise valid order . . . . 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." (In re Francisco W., supra, 139 Cal.App.4th at p. 708.)
Second, it stated, "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 find the law accommodates [such an] extraordinary case . . . ." (In re Francisco W., supra, 139 Cal.App.4th at pp. 708-709.) It cited section 366.26, subdivision (i)(2),[1] which "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. [Citation.] 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. [Citation.]" (Francisco W., at p. 709.)
The court concluded: "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 . . . 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 Franciscos appellate counsel in this case, we see no reason why the relevant parties . . . 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 . . . ." (In re Francisco W., supra, 139 Cal.App.4th at pp. 709-710.)
Just six months later, in In re Terrance B. (2006) 144 Cal.App.4th 965, the same appellate court reaffirmed these principles. In an earlier appeal, it had reversed, based on an ICWA notice violation, and ordered a limited remand. (Id. at p. 970.) On that remand, the mother filed a petition pursuant to Welfare and Institutions Code section 388 (section 388 petition). She alleged that the childs two older siblings, who had been placed with the child, had recently been returned to her custody. She also alleged that a bonding study had shown "a `highly significant and positive relationship between Terrance and his siblings." (Terrance B., at p. 970.) She therefore argued that the beneficial sibling relationship exception precluded the termination of parental rights. The juvenile court, relying on the limited nature of the remand, refused to consider the section 388 petition. (Terrance B., at p. 970; see also Terrance B., at pp. 968-969.)
The appellate court affirmed. It stated that the mother "was not entitled to a hearing on her section 388 petition regarding Terrances best interests or the applicability of the beneficial sibling relationship exception. [Citation.]" (In re Terrance B., supra, 144 Cal.App.4th at p. 975.) "[A]s we held in Francisco W., a party is not entitled to a second selection and implementation hearing when the sole reason for reversal is ICWA notice error. [Citation.]" (Id. at p. 973.)
The court also explained: "This is not the `extraordinary case contemplated by Francisco W. The facts do not in any way suggest Terrance is no longer adoptable or at risk of becoming a legal orphan. The evidence at the selection and implementation hearing showed Terrance was generally adoptable based on his age, physical condition and emotional state. [Citation.] Additionally, Terrances caregiver, with whom he had lived since he was two years old, was committed to adopting him. Those circumstances have not changed. . . . Thus, the alleged changed circumstances — the siblings return to [the mothers] custody — did not adversely affect the likelihood Terrance would be adopted. [Citation.]" (In re Terrance B., supra, 144 Cal.App.4th at pp. 973-974, fn. omitted.)
Here, just as in Francisco W. and Terrance B., the sole basis shown for reversal is an ICWA notice violation. Accordingly, the parties simply are not entitled to a new section 366.26 hearing. Of course, it could be argued that this is an "extraordinary" case within the meaning of Francisco W. The fact that Faith has been "act[ing] out sexually", and the fact that, as a result, her prospective adoptive parents have refused to adopt her, are certainly relevant to her adoptability (though not necessarily dispositive; see In re Gregory A. (2005) 126 Cal.App.4th 1554, 1562 ["`"a prospective adoptive parents willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family""]).
Francisco W., however, went on to hold that section 366.26, subdivision (i)(2) is adequate to accommodate even the extraordinary case. This holding applies squarely here. There is no need to order a new section 366.26 hearing, which in turn would be subject to another appeal. If Faith is still adoptable, then presumably she will be adopted. If she is not, then presumably either the Department will so stipulate, or else by August 2009, she can petition to reinstate parental rights. She is not facing legal orphanhood.
M.M. and Faith also ask us to remand for a new section 366.26 hearing so the juvenile court can consider whether the beneficial sibling relationship exception now applies. In Terrance B., however, the court held that postjudgment evidence that adoption would separate bonded siblings did not make the case "extraordinary" and did not require a full remand. That is particularly true here, because sexual acting out, not adoption, is what is causing the separation of the siblings. Thus, Faith is already in a separate placement from D.G. and H.G. Evidently they are going to remain separated, regardless of whether they continue in long-term foster care or are placed for adoption. These facts simply do not present a compelling case for "violat[ing] both the generally applicable rules of appellate procedure, and the express provisions of section 366.26 . . . ." (In re Zeth S., supra, 31 Cal.4th at p. 413.)
In sum, even if we were to consider the additional evidence, we would still order only a limited remand. We therefore deny the motion to take additional evidence on appeal.
III
DISPOSITION
The order terminating parental rights is reversed, solely with respect to Faith M., and not with respect to her half siblings D.G. and H.G., subject to the following conditions.
As soon as reasonably practicable, the Department shall file a motion (or motions) for findings as to whether it has complied substantially with the notice requirements of the ICWA and related federal and state law, and, if so, as to whether Faith is an Indian child. (See Cal. Rules of Court, rule 5.664(g).) The Department may choose to introduce new evidence concerning any notices it has already given; it also may choose to give new notices and to wait for any new responses.
If the juvenile court finds that Faith is not an Indian child, it shall reinstate the original order terminating parental rights. If the juvenile court finds that Faith is an Indian child, it shall set a new section 366.26 hearing, and it shall conduct all further proceedings in compliance with the ICWA and all related federal and state law.
We concur:
McKINSTER, Acting P.J.
MILLER, J. --------------- Notes: Section 366.26, subdivision (i)(2), as pertinent here, provides: "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. . . . 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 childs best interest."