In re Justin S.

• Citation: 150 Cal.App.4th 1426,59 Cal.Rptr.3d 376
• Decision Date: 21 May 2007
• Docket Number: No. H030732.,H030732.
• Court: California Court of Appeals
• Parties: In re JUSTIN S., et al., Persons Coming Under the Juvenile Court Law. Santa Clara County Department of Family and Children's Services, Plaintiff and Respondent, v. Sheika L., Defendant and Appellant.

59 Cal.Rptr.3d 376

150 Cal.App.4th 1426

In re JUSTIN S., et al., Persons Coming Under the Juvenile Court Law.

Santa Clara County Department of Family and Children's Services, Plaintiff and Respondent, v. Sheika L., Defendant and Appellant.

No. H030732.

Court of Appeal, Sixth District.

May 21, 2007.

Carol A. Koenig, under appointment by the Court of Appeal in Association with the Sixth District Appellate Program, Half Moon Bay, for Appellant.

Ann Miller Ravel, County Counsel and Susan S. Ware, Deputy County Counsel, for Respondent.

ELIA, J.

Sheika L. appeals from an order of the juvenile court reinstating the termination of her parental rights to Justin S. and Tyler S. following a limited remand by this court to the juvenile court for compliance with the notice requirements of the Indian Child Welfare Act. She contends that she should have had notice of, and representation by counsel for, the limited remand hearing. She further contends that the noticed tribes were not given sufficient time to respond. We agree.

Background

On June 6, 2005, pursuant to Welfare and Institutions Code section 366.26, the juvenile court terminated appellant's parental rights to Justin S. and Tyler S.¹ Sheika L. appealed, contending that the notices given under the Indian Child Welfare Act (ICWA) gave insufficient information for the tribes to determine whether Justin and Tyler were Indian children.² (In re Justin S., et al, H029121.) Specifically, she argued that the notices failed to include the date of birth of the children's paternal grandmother, with whom they had been placed and from whom their Indian ancestry derived. On April 7, 2006, this court conditionally reversed the order terminating parental rights and remanded the matter to the juvenile court to address the ICWA notice defect.³

On May 16, 2006, the juvenile court held a section 366.3 post-permanency planning hearing.⁴ Counsel for the children and counsel for the Department of Family and Children's Services (Department) were present, as was the children's paternal grandmother. Neither appellant nor her counsel was present. The juvenile court referred to this court's remand and said, "So the Court of Appeal did not suggest that we have a hearing involving whether or not to terminate parental rights again. It suggested that if they wanted to intervene then we would set another hearing and have to notice everybody on the case. And then but if not, if they don't want to intervene or don't have any cause for action, then the order terminating parental rights will be immediately reinstated. So it's really not up for discussion with all the parties. This is only an issue for the tribe."

The remittitur was issued on June 7, 2006, transferring jurisdiction to the juvenile court. On June 14, 2006, the Department sent a Notice of Involuntary Custody Proceeding for Indian Child to the Cherokee tribes and the Bureau of Indian Affairs (BIA). This notice was also sent to appellant's last known address. The notice said that a section "366.3 post permanent plan review" hearing was set for June 29, 2006 and described a parent's rights under the ICWA.⁵

At the June 29, 2006, hearing, counsel for the children and counsel for the Department were present, as was the children's paternal step-grandfather. Counsel for the Department asked for a continuance to await responses from the tribes. Counsel said, "Once we have all the noticing proper, then the trial court can report to the Court of Appeal that the Indian requirements have been satisfied, then the Court of Appeal can finalize its decision on the termination of parental rights, then the adoption can go through." The juvenile court continued the matter to July 28, 2006.

On July 28, 2006, counsel for the children and counsel for the Department appeared, as did the children's paternal grandparents. Attached to a report prepared for the hearing were copies of certified mail receipts for the tribes and the BIA. One tribe had responded saying that Justin and Tyler were not Indian children. The response from the BIA said that "possible intervention will be determined by the federally recognized tribes." Counsel for the Department remarked that notices had been sent and that some responses had been received and said, "I'd like to prepare an order after the hearing of compliance with noticings. And we could file that notice after [the] hearing with the Court of Appeal. And hopefully, that will take care of the issues that the Court of Appeal is concerned with." The court made no finding on the ICWA issue at the hearing. The court told the grandparents that "once the Court of Appeal sees that we have corrected the record" the adoption would be completed.

In an "Order after Hearing" signed August 14, 2006, the court found that proper ICWA notice had been given and reinstated the order terminating parental rights. On October 6, 2006, this court received a letter from counsel for the Department, referencing the appellate case number from the first appeal, with a copy of the "Order after Hearing." The letter stated that the order "reflects the proceedings held before the Honorable Katherine Lucero in accordance with the Court of Appeal ruling." The letter said, "We believe that this rectifies any error and the order terminating parental rights is properly reinstated." The letter stated that "[a]ll parties to the appeal are served on this ruling" and had a notation indicating that a copy of the letter and the order had been sent to counsel that had represented appellant in the first appeal. On October 13, 2006, an attorney for the Sixth District Appellate Program (SDAP) filed a notice of appeal from the order reinstating the termination of parental rights.⁶

Discussion

Appellant contends that upon the conditional reversal of the termination of parental rights and remand to comply with the provisions of the ICWA, "due process requires that the mother receive notice of the hearing and appointment of counsel upon remand." Appellant argues, "The juvenile court's determination that the hearing did not involve the parties, but only the tribes was erroneous and without authority." Respondent argues, "The limited reversal approach gives the juvenile court the opportunity to remedy the problem identified by the appellate court.... The juvenile court treated the problem as one that was `not up for discussion with all parties' but involved the tribes only. The mother already had the process due her in the previous proceedings."

The fundamental problem here is that the juvenile court and counsel for the Department proceeded as if this court had retained jurisdiction over the ICWA notice issue. Counsel for the Department said that once notice was completed, "the trial court can report to the Court of Appeal that the Indian requirements have been satisfied, then the Court of Appeal can finalize its decision on the termination of parental rights, then the adoption can go through." The juvenile court reassured the grandparents that "once the Court of Appeal sees that we have corrected the record" the adoption would be completed. Referencing the case number in the already-final appeal, counsel for the Department, with the assent of the juvenile court, sent the letter and a copy of the Order after Hearing to this court. Although appellant was no longer represented by appellate counsel, it was to appellate counsel that counsel for the Department sent a copy of the "Order after Hearing."

There are several cases that have concluded that an agency's failure in the juvenile court to show compliance with the ICWA notice requirements may be cured by making the necessary showing in the appellate court. (See Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 866-867, 11 Cal.Rptr.3d 1.) However, in this case, by the time of the efforts to cure the notice defect, the appeal had concluded with the limited remand, and the remittitur had issued, returning jurisdiction to the juvenile court. Although appellant was sent a copy of the ICWA notice documents, the notice did not indicate that a hearing on the ICWA notice issue was scheduled. The notice she was sent was for a post-permanency planning hearing. By then, appellant was no longer represented by trial counsel and had no right to be present at that type of hearing. (See § 366.3, subd. (a).)

In re Francisco W. (2006) 139 Cal. App.4th 695, 43 Cal.Rptr.3d 171, recognized that the practice of limited reversals in ICWA cases was "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.].)" (Id. at p. 705, 43 Cal.Rptr:3d 171.) The Francisco W. court said that the practice of conditional reversals in cases in which ICWA notice was defective "is legally authorized consistent with the best interests of children, and in keeping with fundamental principles of appellate practice." (Id. at p. 704, 43 Cal.Rptr.3d 171.) The court found that the conditional reversal approach in these cases does not infringe upon due process rights and does not prevent the juvenile court from considering changes in the children's circumstances concerning their adoptability.⁷ (Ibid.) The court said, "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." (Id. at p. 705, 43 Cal.Rptr.3d 171.)

Although it...