Opinion
NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of San Diego County, No. J516411A-D, Cynthia A. Bashant, Judge.
McCONNELL, P. J.
Cynthia R. and Michael D. (together, the parents) appeal juvenile court orders terminating their parental rights to their minor children A.D., Joseph D., E.D. and Henry D. (collectively, the minors) under Welfare and Institutions Code section 366.26. This case is before us following a limited reversal and remand in the parents' prior appeal in which we reversed the juvenile court's orders terminating parental rights for the limited purpose of ensuring compliance with the notice provisions of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA). In our prior opinion, we directed the juvenile court to give proper notice to the Standing Rock Sioux Tribe (the tribe), in which the minors are enrolled members. (In re A.D. (Nov. 4, 2009, D054597) [nonpub. opn.].) We further directed that if, after proper notice, the tribe did not intervene, the juvenile court was to reinstate its orders terminating parental rights; if the tribe did intervene, the court was "to conduct a new section 366.26 selection and implementation hearing in accordance with ICWA." (Ibid.)
Statutory references are to the Welfare and Institutions Code unless otherwise specified.
In this appeal, the parents contend the juvenile court erred when it did not conduct a section 366.26 hearing in accordance with ICWA even though the tribe did intervene. They assert the court's material variance from directions in our remittitur was unauthorized, and thus, the court's orders terminating parental rights are void. They further contend the court violated their due process rights when it did not hold a "meaningful" hearing under section 366.26. We affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
A more detailed account of the facts and procedure is contained in our nonpublished opinion in the parents' prior appeal, In re A.D., supra, D054597.
The minors were declared dependents of the juvenile court in February 2007 and were removed from parental custody based on findings Cynthia's mental condition, including bipolar disorder, prevented her from providing adequate care for the minors, and Michael was unable to protect them. (§ 300, subd. (b).) Because the minors are Indian children, the court's findings were made in accordance with ICWA.
Michael has a criminal history, which includes domestic violence. At the time of the minors' removal, Michael was incarcerated in Missouri awaiting extradition to New Mexico. Cynthia has a history of acute mental health breakdowns, caused by her refusal to take medication, which required her to be hospitalized on many occasions. The court placed the minors in the home of a relative and ordered the parents to participate in reunification services.
During the next six months, Cynthia did not participate in services and her mental illness remained untreated. Michael was on probation and lived in New Mexico. The minors moved to the home of the maternal grandparents in Missouri. At a six-month review hearing, the court terminated Cynthia's services and continued Michael's services.
According to a 12-month review report, the minors became enrolled members of the tribe in February 2007. Michael was incarcerated in New Mexico, released from custody and then incarcerated again. Cynthia moved to Missouri and was having supervised visits with the minors. She continued to refuse medication for her bipolar disorder. The social worker for the San Diego County Health and Human Services Agency (Agency) believed it would be detrimental to return the minors to parental custody, and recommended the court set a section 366.26 selection and implementation hearing. Indian expert Phillip E. Powers agreed with Agency's recommendation to have the court select and implement a permanent plan for the minors. The court terminated Michael's services and set a selection and implementation hearing.
Agency recommended adoption as the minors' permanent plans. The minors were doing well in the care of their maternal grandparents, who were willing to adopt them. Cynthia was visiting the minors several times a week, but her visits remained supervised. Although Cynthia's mental health had stabilized, her history of acute breakdowns and refusal to take medication remained a cause for concern. Michael's pattern of probation violations and repeated incarcerations were also a concern. The minors needed stability, and neither parent was able to care for them.
At a contested selection and implementation hearing in 2008, the court considered the documentary evidence, Michael's stipulated testimony and the testimony of Cynthia, the maternal grandmother, the social worker and the case worker in Missouri. The court noted the tribe had been notified but chose to not intervene. In accordance with ICWA, the court found active efforts had been made to prevent the breakup of the Indian family and these efforts had been unsuccessful. The court further found, beyond a reasonable doubt, that returning the minors to either parent would likely result in serious emotional or physical damage to the minors. Finding the minors were adoptable and none of the exceptions to adoption applied, the court terminated parental rights and referred the minors for adoptive placement.
The parents appealed. In an unpublished opinion, we held: (1) substantial evidence supported the court's finding of "serious damage" under ICWA; (2) the court properly found terminating parental rights would not substantially interfere with the minors' connection to their tribal community; (3) substantial evidence supported the court's finding there was no beneficial parent-child relationship between Cynthia and the minors; (4) the court was not required to select a permanent plan other than adoption; and (5) defective ICWA notice to the tribe required a limited reversal. (In re A.D., supra, D054597.) In reversing the orders terminating parental rights on the ground of defective ICWA notice, we directed the juvenile court "to comply with the notice provisions of ICWA with respect to the Standing Rock Sioux Tribe. If, after proper notice and inquiry, the Standing Rock Sioux Tribe does not intervene, the court shall reinstate the orders. If the Standing Rock Sioux Tribe intervenes, the court is ordered to conduct a new section 366.26 selection and implementation hearing in accordance with ICWA. (In re Francisco W. (2006) 139 Cal.App.4th 695, 705-706; In re Jonathan D. (2001) 92 Cal.App.4th 105, 111-112.)" (Ibid.)
At Agency's request, the juvenile court set a special hearing for February 24, 2010, regarding ICWA notice. Before the hearing, the tribe filed a motion to intervene. Agency prepared an addendum report and discussed the status of the case with tribal representative Rose Mendoza. At the hearing on February 24, the court stated its understanding that a new section 366.26 hearing was to be conducted because the tribe had intervened. Mendoza indicated the tribe's intention was to monitor the case, and not request a transfer to the tribal court. The court further noted that the issues raised by the parents on appeal, other than deficient ICWA notice, had been determined to have no merit, and thus, the only remaining issue at the new section 366.26 hearing was ICWA notice. The parents did not object to the manner in which the court intended to proceed. Counsel for Cynthia informed the court the parents would be filing section 388 petitions for modification to allege changed circumstances. The court set a contested section 366.26 hearing for July 9.
Social worker Colleen Murray prepared a new assessment report for the section 366.26 hearing, noting Agency continued to recommend adoption as the minors' permanent plans. The minors remained placed with the maternal grandparents in Missouri, where they were thriving. The tribe was intervening in the proceedings and supported the minors' adoption by the maternal grandparents. Tribal representative Mendoza agreed to provide a declaration in support of Agency's recommendation for adoption.
Murray also reported the minors continued to enjoy visits with the parents. The maternal grandparents remained committed to adopting the minors. The minors said if they could not be placed with their parents, they wanted to be adopted by the maternal grandparents.
At a pretrial status conference on June 30, Cynthia's counsel told the court a section 388 modification petition would not be filed. The court then clarified the scope of the section 366.26 hearing, asking counsel, "[I]s it correct that the remittitur was very specific as to what needed to occur, that it was simply the noticing issue and the tribal involvement and, therefore, nothing else is at issue and any new or different facts are not relevant?" Cynthia's counsel responded: "That's correct, " adding only that Michael's counsel wanted to present evidence regarding ICWA notice. The court then stated:
Cynthia's counsel stated her research showed she could not legally file a section 388 petition. This is consistent with this court's opinion in In re Terrance B. (2006) 144 Cal.App.4th 965, 968, 972-973, where we held a limited reversal and remand for ICWA notice, contained in the remittitur in the mother's prior appeal, precluded the juvenile court from entertaining the mother's section 388 modification petition to allege changed circumstances.
"... And the tribe's recommendation as I understand it is to leave things as they are and to be supportive of the adoption by the grandparents with whom the children have been placed. And that's -- if there was any deficiency in the notice to them, it's been rectified. And I have no other understanding of where we stand. So even if there was a deficiency in the notice, the tribe is now noticed and the tribe is supportive of all prior actions previously taken by the [c]ourt. So there's no need to upset the apple cart, other than to reaffirm any findings that were previously made and entered. And this is one where I believe I entered voluminous written findings in connection with the evidence that was before the [c]ourt.
"So if the noticing has been rectified, ... all that remains outstanding is just establishing what the remedy of the deficient notice is and the affirmation of what the tribe's current position is, correct?"
Michael's counsel answered "Yes, " and the court confirmed the July 9 date for the hearing.
According to an addendum report, the tribe had chosen not to file a request for a customary tribal adoption. The minors remained both generally and specifically adoptable. The parents continued to be involved in the minors' lives. In the social worker's opinion, the benefits of adoption outweighed the benefits the minors derived from their relationships with the parents. Agency's recommended permanent plan for the minors was still adoption.
A contested hearing under section 366.26 occurred on July 9. At County Counsel's request, the court received in evidence, without objection from the parents, Agency's various reports and the social worker's resume. County Counsel had the social worker available for cross-examination, but the parents expressly declined to cross-examine her. All parties stipulated to the testimony of tribal representative Mendoza, whose opinion was contained in her affidavit and was based on Agency's reports. Cynthia's counsel, Michael's counsel and minors' counsel informed the court they had no affirmative evidence to present. In closing argument, Cynthia's counsel and Michael's counsel stated their clients' objections to a permanent plan of adoption for the minors.
In accordance with ICWA, the court found, by clear and convincing evidence, "active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of this Indian family and these efforts have proved unsuccessful." The court also found, beyond a reasonable doubt, that continued custody of the minors by the parents is likely to result in serious emotional or physical damage to the minors. Finding the minors were adoptable and none of the exceptions to adoption applied, the court terminated parental rights and referred the minors for adoptive placement.
DISCUSSION
I
The parents contend the orders terminating parental rights are unauthorized and void because the juvenile court ignored the directions contained in this court's remittitur to hold a new section 366.26 hearing in accordance with ICWA if the tribe intervened. They assert the hearing that occurred on July 9 was improperly limited to addressing only whether the tribe received proper notice and then "reaffirm[ing] any findings that were previously made and entered." In essence, the parents believe they were entitled to a hearing at which they could present evidence, based on current circumstances, to preserve their parental rights.
A
In cases on appeal involving defective ICWA notice, "the practice of issuing limited reversals 'is legally authorized, consistent with the best interests of children, and in keeping with fundamental principles of appellate practice.' " (In re Terrance B., supra, 144 Cal.App.4th at p. 971, quoting In re Francisco W., supra, 139 Cal.App.4th at p. 704.) The appellate court's order, contained in its remittitur, reversing and remanding for the limited purpose of ensuring compliance with the provisions of ICWA revests subject matter jurisdiction in the juvenile court and defines the scope of the juvenile court's jurisdiction. In this regard, the appellate court's order determines the character of the judgment to which the appellant is entitled, and the juvenile court cannot reopen the case on the facts, allow the filing of amended or supplemental pleadings, or retry the case. (In re Francisco W., supra, at pp. 704-705.)
Where, as here, parental rights have been terminated and the only error is defective ICWA notice, the limited reversal 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...." (In re Francisco W., supra, 139 Cal.App.4th at p. 705.)
B
Although we disagree with the parents' claim that the juvenile court failed to hold a hearing in conformance with our remittitur, we first note the parents acquiesced in the manner in which that hearing was conducted. Ordinarily, a parent's failure to object or raise certain issues in the juvenile court prevents the parent from claiming error on appeal. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) Application of the so-called "forfeiture rule, " although not automatic, is designed to keep litigants from acquiescing and later seeking relief for error that could have been prevented or cured. (Ibid; In re Riva M. (1991) 235 Cal.App.3d 403, 412.) " ' "The law casts upon the party the duty of looking after his [or her] legal rights and of calling the judge's attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his [or her] objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal." [Citation.]' [Citation.]" (In re Christina L. (1992) 3 Cal.App.4th 404, 416.) Even claims of due process violations may be forfeited by not asserting them in the trial court. (People v. Marchand (2002) 98 Cal.App.4th 1056, 1060; People v. Barnum (2003) 29 Cal.4th 1210, 1223-1224; In re Desiree M. (2010) 181 Cal.App.4th 329, 334; In re Dakota H. (2005) 132 Cal.App.4th 212, 222.)
Although we have discretion to excuse forfeiture, we exercise that discretion rarely and only in cases presenting an important legal issue. (In re S.B., supra, 32 Cal.4th at p. 1293.) Failure to enforce the forfeiture rule is manifestly unfair to the adverse party and the court because it would permit a parent to deliberately remain silent and allow the proceedings to reach a conclusion in which the parent could acquiesce if favorable and avoid if unfavorable. (In re Riva M., supra, 235 Cal.App.3d at p. 412.) This is especially true in dependency proceedings where "considerations such as permanency and stability are of paramount importance." (In re S.B., supra, at p. 1293.)
Here, at the February 24 hearing held in connection with receipt of the remittitur, the court stated it was required to hold another section 366.26 hearing, but was limited to addressing deficient ICWA notice because all other issues had been determined adversely to the parents in the prior appeal. The parents concurred with this statement and did not raise any objections. At the June 30 pretrial status conference, the court clarified the scope of the section 366.26 hearing as being limited to "the noticing issue and the tribal involvement" such that nothing else was at issue and any new or different facts were not relevant. The parents expressly agreed with the court's interpretation of the remittitur, as well as the court's observation there was "no need to upset the apple cart, other than to reaffirm any findings that were previously made and entered."
The parents then participated in the section 366.26 hearing without objecting to the admissibility of Agency's reports, cross-examining the social worker or challenging the tribal representative's affidavit, and by declining to present any affirmative evidence. Had the parents believed they were entitled to revisit issues with respect to terminating their parental rights, including presenting evidence of current circumstances, they had every opportunity to raise this issue in the juvenile court. By their silence and acquiescence, the parents have forfeited their right to claim error on appeal. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339.)
The parents argue that once the juvenile court "set the tone" at the June 30 hearing, "it would have been fruitless, even futile, for counsel to try to object or raise any affirmative defenses...." They claim they were "stuck" with the court's intent to reinstate its previous findings and orders. We disagree. An objection, rather than being futile, would have given the court the opportunity to consider and rule on the parents' arguments regarding whether they were entitled to present evidence of current circumstances. Even if unsuccessful, an objection would have preserved the issue for appeal.
C
In any event, the court did conduct a new section 366.26 selection and implementation hearing in accordance with ICWA. The record shows that once the tribe received proper notice and elected to intervene, the court's intention was to conduct a new section 366.26 hearing. A date was set for a contested hearing, Agency prepared an updated assessment report and the tribe provided an affidavit and testimony in support of a permanent plan of adoption for the minors. On the date set for trial, the court conducted a hearing at which it received reports in evidence, accepted the stipulated testimony of the tribal representative, and invited the parents to cross-examine the social worker and to present affirmative evidence, which they declined to do. After hearing argument of counsel, including the parents' objections to terminating their parental rights, the court made findings in accordance with ICWA ("active efforts" and "serious physical or emotional damage"), found the minors were adoptable, and found none of the exceptions to adoption applied to preclude terminating parental rights. Because the court held a section 366.26 hearing, its findings and orders are neither unauthorized nor void.
II
The parents contend the court violated their procedural and substantive due process rights when it did not hold a new section 366.26 hearing in accordance with ICWA. However, as we previously concluded, the court did conduct a new section 366.26 hearing in accordance with ICWA, and the parents' arguments they were denied their due process rights to be heard, present evidence and cross-examine witnesses have been forfeited by their failure to raise them in the juvenile court. (See In re Dakota H., supra, 132 Cal.App.4th at p. 222 [mother's failure to claim due process violation in juvenile court was forfeited on appeal].)
We acknowledge and commend the parents for their continued participation in the minors' lives. Nevertheless, the minors have been dependents for nearly four years, and deserve to have their custody status finally resolved and their placements made permanent and secure. There is no reason, supported by policy or the law, to deviate from the Legislature's preference for adoption here.
DISPOSITION
The orders are affirmed.
WE CONCUR: BENKE, J., AARON, J.