Opinion
NOT TO BE PUBLISHED
Santa Cruz Super. Ct. No. DP001021
Mihara, J.
In January 2008, the juvenile court erroneously denied an Indian tribe’s request for a transfer of jurisdiction and scheduled a Welfare and Institutions Code section 366.26 hearing for April 2008. This court thereafter issued a writ of mandate directing the juvenile court to vacate its January 2008 orders and to issue a new order granting the transfer request. In June 2008, the juvenile court vacated its January 2008 orders and granted the transfer request. The court scheduled a hearing to confirm the transfer upon receipt of acceptance from the tribe. Prior to the scheduled hearing, the juvenile court issued a written order that memorialized its June 2008 orders transferring the case to the tribe and setting the July 10, 2008 hearing for confirmation and termination of jurisdiction. However, this written order, which was on a check-the-box form, also had a conflicting box checked for immediate termination of jurisdiction.
Subsequent statutory references are to the Welfare and Institutions Code unless otherwise specified.
At subsequent hearings, the juvenile court repeatedly rescheduled the hearing for confirmation because it had not received proof of acceptance of the case from the tribe. In October 2008, the tribal court issued an order in which it declined the transfer of the case and directed that the case be returned to the juvenile court. The juvenile court thereafter resumed its proceedings and scheduled a section 366.26 hearing for May 14, 2009. Petitioner filed this writ petition in which he contends that the juvenile court’s written July 2008 order terminated its jurisdiction and deprived it of jurisdiction to make any further orders. We conclude that the checked box on the July 2008 form order was a clerical error, which did not deprive the juvenile court of jurisdiction. Accordingly, we deny the writ petition.
I. Background
This matter has previously been before us three times. Two-year-old V. M. (the minor) was detained in July 2004. (In re Vincent M. (2007) 150 Cal.App.4th 1247, 1252 (Vincent II).) He was placed in a foster/adoptive home in August 2004, and he remains there to this day. (Vincent II, at p. 1253.) The jurisdictional and dispositional hearing was held on October 5, 2004. The court took jurisdiction, found that the Indian Child Welfare Act (the ICWA) did not apply, denied reunification services to the mother, granted services to petitioner V. M., Sr. (the father), and placed the minor in foster care. The parents filed an appeal from the juvenile court’s dispositional order. (Vincent II, at p. 1252.) In March 2005, while that appeal was pending, the juvenile court terminated the father’s reunification services and scheduled a section 366.26 hearing for July 2005. That hearing was repeatedly rescheduled at the request of real party Human Resources Agency of Santa Cruz County (the Agency) due to the pendency of the parents’ appeal. (Vincent II, at p. 1252.) In September 2005, this court filed its opinion in the parents’ first appeal. This court concluded that the ICWA notices were inadequate and remanded for proper ICWA noticing.
In January 2006, the juvenile court again found that the ICWA did not apply and scheduled a section 366.26 hearing for February 17, 2006. That hearing was subsequently rescheduled for March 16, 2006. (Vincent II, supra, 150 Cal.App.4th at p. 1253.) On March 15, 2006, the Bureau of Indian Affairs (the BIA) certified that the minor was a member of the Turtle Mountain Band of Chippewa Indians (TMC), and TMC sought to intervene in the juvenile court proceedings and to transfer jurisdiction to its tribal court. (Vincent II, at pp. 1253-1254.)
In June 2006, the juvenile court found that the ICWA did not apply because Vincent was not a member of an “existing Indian family.” (Vincent II, supra, 150 Cal.App.4th at pp. 1254-1258.) The juvenile court refused to allow TMC to intervene and refused to transfer jurisdiction to TMC’s tribal court. (Vincent II, at p. 1258.) The court proceeded to hold the section 366.26 hearing, terminated parental rights, and selected adoption as the permanent plan. (Vincent II, at p. 1258.) The parents appealed and challenged the court’s finding that the ICWA did not apply. This court agreed, reversed the juvenile court’s order terminating parental rights, and mandated that, “[o]n remand, the juvenile court shall apply the substantive provisions of the ICWA.” (Vincent II, at pp. 1267-1268.)
In December 2007, the juvenile court granted TMC’s motion to intervene and took TMC’s transfer request under submission. TMC’s tribal court issued a December 2007 order accepting jurisdiction of the case. In January 2008, the juvenile court denied TMC’s request for transfer. The court set a section 366.26 hearing for April 24, 2008. Both parents filed petitions seeking a writ of mandate. This court concluded that the juvenile court’s order denying the transfer request was not supported by substantial evidence and issued a writ of mandate directing the juvenile court to vacate its orders and enter a new order granting TMC’s transfer request.
The juvenile court thereafter vacated the scheduled April 2008 section 366.26 hearing. On June 12, 2008, the juvenile court complied with this court’s mandate by ordering jurisdiction transferred to TMC. The juvenile court stated: “Whether or not the tribe will take him, we don’t know at this point.” The court noted that “the case is in limbo” pending the tribal court’s confirmation of jurisdiction. “[A]t this point, we need to wait until the Indian tribe picks up the case.” The matter was “set for Confirmation of Transfer Out” on July 10, 2008.
On July 2, 2008, the court issued a written order on Judicial Council Form ICWA 060. This two-page check-the-box form had seven numbered sections. Section 5 began: “THE COURT FINDS AND ORDERS under” followed by four checkboxes next to various statutory provisions. The checkbox next to Welfare and Institutions Code section 305.5 was checked. This portion of section 5 was followed by four lettered subsections (a through d), each with its own checkbox. The checkbox next to subsection a was the only one checked in section 5. Subsection a stated: “The child’s case is ordered transferred to the jurisdiction of the tribe listed below:” and listed TMC as the tribe. Section 6 of the form had a checkbox next to “Proof that tribe has accepted transfer is attached and jurisdiction is terminated.” The checkbox next to section 6 had been checked with a computer-printed checkmark. Section 7 of the form had a checkbox next to a space that could be used to set a hearing date “to confirm that the tribe has accepted transfer and to terminate jurisdiction.” The checkbox next to section 7 had been checked by hand and the date (July 10, 2008), time, and place for that hearing had been specified. In addition, after the words “terminate jurisdiction” had been added “but will be rescheduled to later July due to timing of transfer.” This handwritten addition was initialed by the judge. Just below section 7 were spaces for the date and the judicial officer’s signature. The judge had signed this order and dated it July 2, 2008. The July 2, 2008 order is followed in our record by a copy of a March 2006 TMC tribal court order accepting jurisdiction. A July 7, 2008 “NOTICE OF TRANSFER” executed by the court clerk stated that the case file had been transmitted to the TMC tribal court on July 8, 2008.
“The court must issue its final order [on a request for transfer] on the Order on Petition to Transfer Case Involving an Indian Child to Tribal Jurisdiction (form ICWA 060).” (Cal. Rules of Court, rule 5.483(g).)
TMC’s tribal court never acknowledged receipt of the case file. At the scheduled July 10, 2008 hearing, the court noted that it had not received “confirmation of transfer” from TMC. The matter was continued to August 7, 2008. No confirmation of acceptance or receipt of the case file had been received from TMC by August 7, so the court continued the matter to September 11. There was still no confirmation at the time of the September 11 hearing, so the matter was continued to October 9.
At the October 9 hearing, the social worker advised the court that TMC had informed her that it would be sending the case back to Santa Cruz County as TMC supported the plan of adoption by the minor’s foster parents. The matter was continued to October 30. On October 30, the court was advised that County Counsel had received a copy of an order from TMC’s tribal court. The court set “the matter for confirmation of transfer in” on November 20.
TMC’s tribal court’s October 28, 2008 order stated both that it had “accepted” the case and that it “declines jurisdiction” over the case. The order stated that TMC’s tribal court had concluded that it was in both the minor’s “best interest” and TMC’s best interests “that the dependency case now be returned to the Santa Cruz County Superior Court. In addition, the evidence necessary to decided [sic] the case could not be presented to the Tribal Court without undue hardship to the parties and witness.” “Pursuant to 25 U.S.C. 1911(b), the Tribal Court of the Turtle Mountain Band of Chippewa Indians now declines jurisdiction in the case of [the minor]. [The minor’s] case is hereby returned to the Superior Court, Santa Cruz County, California, for that Court to resume jurisdiction and make such ordered [sic] regarding [the minor’s] placement and permanency as it may determine to be proper.”
At the November 20, 2008 hearing, the juvenile court resumed jurisdiction over the case. A number of continuances followed. In January 2009, the father moved to dismiss for lack of jurisdiction. He argued that the juvenile court had lost jurisdiction when it transferred the case to TMC’s tribal court on July 2, 2008. The father also contended that the juvenile court could regain jurisdiction only through the filing of a new petition.
At a January 29, 2009 hearing, the juvenile court considered the father’s dismissal motion. The mother joined in the father’s motion. The Agency argued that TMC’s tribal court had never accepted the case after its transfer, so the juvenile court never lost jurisdiction. “[Y]ou can’t pre-accept a case that hasn’t been transferred yet.” The juvenile court found that “this court never dismissed the case... [and] never lost its interest for jurisdiction over this child, because we never had acceptance by a tribal court.” The court noted that it had repeatedly tried to contact the TMC tribal court, but had been unsuccessful. It concluded: “Acceptance must be official acceptance to this court to the one that has held authority and is attempting to transfer authority to the tribal court.” The court noted that its first communication from TMC after the transfer was TMC’s tribal court’s October 28, 2008 order in which TMC’s tribal court “specifically declined the case.” The court pointed out that section 305.5 required dismissal “only after receiving proof that the tribe has completed transfer of jurisdiction. Proof was never presented to this court that they, in fact, had accepted transfer of jurisdiction.” “This court did not dismiss the proceeding. This court did not terminate jurisdiction.” The juvenile court set a section 366.26 hearing for May 14, 2009. The father filed a timely notice of intent to file a writ petition on February 5, 2009. He filed a writ petition on April 13, 2009.
II. Analysis
Although the father divides his contentions into five sections, all of his contentions are premised on his claim that the juvenile court’s jurisdiction terminated when it transferred the case to TMC on July 2, 2008. This premise is incorrect, so all of the father’s contentions fail.
Section 305.5, subdivision (b) provides, in pertinent part: “[T]he court shall transfer the proceeding to the jurisdiction of the child’s tribe upon petition of either parent, the Indian custodian, if any, or the child’s tribe, unless the court finds good cause not to transfer. The court shall dismiss the proceeding or terminate jurisdiction only after receiving proof that the tribal court has accepted the transfer of jurisdiction. At the time that the court dismisses the proceeding or terminates jurisdiction, the court shall also make an order transferring the physical custody of the child to the tribal court.” (§ 305.5, subd. (b), italics added.)
The federal law is similar. “[T]he court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child’s tribe: Provided, That such transfer shall be subject to declination by the tribal court of such tribe.” (25 U.S.C. § 1911, subd. (b).)
The father contends that the court’s July 2, 2008 order terminated jurisdiction because the form order had a checkmark in the checkbox for section 6, and section 6 read: “Proof that tribe has accepted transfer is attached and jurisdiction is terminated.” While, viewed in isolation, the checkmark in the checkbox for section 6 would appear to provide for termination of jurisdiction, it is absolutely clear, when the July 2, 2008 order is viewed in its totality and in context, that the checkmark in the checkbox for section 6 was nothing but a clerical error.
The father relies upon In re M.M. (2007) 154 Cal.App.4th 897 (M.M.). In M.M., the juvenile court had transferred the minor’s case to the tribal court, the tribal court had accepted jurisdiction, and the tribal court had declared the minor a ward of the tribal court. The minor appealed from the transfer order, but the Court of Appeal held that it lacked jurisdiction to provide any relief and dismissed the appeal. (M.M., at p. 901.) M.M. is inapposite. Here, the tribal court declined the juvenile court’s transfer of the minor’s case, so the juvenile court never lost jurisdiction.
“It is not open to question that a court has the inherent power to correct clerical errors in its records so as to make these records reflect the true facts. [Citations.] The power exists independently of statute and may be exercised in criminal as well as in civil cases.” (In re Candelario (1970) 3 Cal.3d 702, 705 (Candelario).) “The distinction between clerical error and judicial error is ‘whether the error was made in rendering the judgment, or in recording the judgment rendered.’ ” (Candelario, at p. 705.) “[A]s to clerical errors, when the error is apparent from the face of the record, no time limit exists as far as the right to make the correction is concerned.” (Estate of Goldberg (1938) 10 Cal.2d 709, 717.)
The fact that a clerical error, rather than a judicial error, resulted in the appearance of a computer-printed checkmark in the checkbox for section 6 on the July 2, 2008 form order is plainly “apparent from the face of the record.”
No rational judge would have placed checkmarks in the checkboxes for both sections 6 and 7 because these two sections irreconcilably conflict. Section 7 provided for a future hearing date for the court “to confirm that the tribe has accepted transfer and to terminate jurisdiction.” (Italics added.) Section 6 stated that the tribe “has accepted transfer” and immediately terminated jurisdiction. (Italics added.) Either the tribe had already submitted proof confirming its acceptance of the transfer (section 6), or the tribe had not yet done so (section 7). Either the court was immediately terminating jurisdiction (section 6), or the court was setting a future hearing for that purpose (section 7).
The record clearly reflects that the judge intended to place a checkmark in the checkbox for section 7 and not in the checkbox for section 6.
First, at the June 12 hearing, the judge made extremely clear that she would take no further action until TMC confirmed its acceptance of the case. The judge stated: “Whether or not the tribe will take him, we don’t know at this point.” “[A]t this point, we need to wait until the Indian tribe picks up the case.” The judge explained that “the case is in limbo” pending the tribal court’s confirmation of its acceptance of the case, and she set a July 10 hearing for confirmation of the transfer. Nothing whatsoever in the record before us suggests that any information was received from TMC between the June 12 hearing and the July 2 order.
Second, the fact that the checkmark in the checkbox for section 7 was hand printed by the judge, and that section 7 was augmented by language handwritten and initialed by the judge, is very strong evidence that section 7, rather than the conflicting section 6 with its computer-printed checkmark, was the selection intended by the judge.
Third, the document that was possibly attached to the July 2 order was not proof of TMC’s acceptance of the juvenile court’s transfer of the case as that document predated the transfer order by more than two years. While the March 2006 tribal court order evidenced the tribal court’s willingness to accept a transfer at that time, it did not establish that the tribal court had in fact accepted the juvenile court’s June 2008 transfer.
Finally, all of the subsequent events are consistent with the judge’s selection of section 7 rather than section 6. The hearing for confirmation of acceptance of the transfer was repeatedly continued until the court actually received a copy of the tribal court’s October 2008 order declining jurisdiction. No proof of confirmation of acceptance of the transfer was received prior to that time, which was a prerequisite to termination of jurisdiction under section 305.5, subdivision (b). The minor’s physical custody was never transferred to the tribal court, as would have been required under section 305.5, subdivision (b) upon the termination of jurisdiction. At all times, the judge repeatedly stated that she had not terminated jurisdiction.
For all of these reasons, we reach the inescapable conclusion that the computer printed checkmark in the checkbox for section 6 on the July 2, 2008 form order was a clerical error. It follows that the juvenile court never terminated its jurisdiction, and it was free to resume its authority over the minor upon learning of the tribal court’s decision to decline the transfer of the case.
III. Disposition
The writ petition is denied.
WE CONCUR Bamattre-Manoukian, Acting P. J., McAdams, J.