as: 50 Cal. Rptr. 3d 815)
of Appeal, Fourth District, Division 1, California.
re TERRANCE B., a Person Coming Under the Juvenile Court
Diego County Health and Human Services Agency, Plaintiff and Respondent,
S., Defendant and Appellant.
AND PROCEDURAL BACKGROUNDFN2
more detailed account of the facts and procedure is contained
in our nonpublished opinion in Cherilynn's prior appeal, In
re Terrance B., filed on November 23, 2005, D046481.
July 2002 two-year-old Terrance and his siblings, 11-year-old Rodney S.
and 10-year-old Rachel S. (collectively the minors),**817 FN3 were taken into protective custody because of ongoing domestic violence
between Cherilynn and *969 Terrance's father, Edwin B. In September 2002 the minors became
dependents of the juvenile court and were placed in out-of-home
care based on findings Edwin physically abused them.
Despite having received reunification services, Cherilynn had not regained custody
of the minors by the 18-month review hearing.
The court terminated services and set a section 366.26 selection
and implementation hearing for Terrance.
is the only subject of this appeal.
minors were originally in separate placements, but were later placed
with the same caregiver, who was willing to provide a
permanent home for all of them.
The permanent plan for Rodney and Rachel was “Another
Planned Permanent Living Arrangement,”
with the prospect of eventually returning them to Cherilynn's custody.
social worker for the San Diego County Health and Human
Services Agency (Agency) recommended adoption as Terrance's permanent plan.
She assessed Terrance as adoptable based on his age, the
commitment of his current caregiver to adopt him and the
existence of 25 other families willing to adopt a child
In the social worker's opinion, Terrance's relationships with Cherilynn and
his siblings did not outweigh his need for stability and
a permanent home, and terminating parental rights would not be
detrimental to Terrance.
a contested selection and implementation hearing, the court received into
evidence Agency's reports and heard the testimony of two social
The court found, by clear and convincing evidence, it was
likely Terrance would be adopted and none of the circumstances
of section 366.26, subdivision (c)(1) applied to preclude terminating parental
Finding adoption was in Terrance's best interests, the court terminated
parental rights and referred Terrance for adoptive placement.
appealed the judgment terminating her parental rights, contending:
the evidence was insufficient to support the court's finding the
beneficial parent-child relationship did not apply to preclude terminating her
the court failed to ensure compliance with the notice provisions
(3) Terrance received ineffective assistance of counsel because his attorney
had a conflict of interest when he represented all three
a nonpublished opinion, In
re Terrance B, supra, D046481, this court held substantial evidence supported the juvenile court's
finding there was no beneficial parent-child relationship within the meaning
of section 366.26, subdivision (c)(1)(A) and Cherilynn had not shown
minors' counsel had an *970 actual conflict of interest.
We further held, however, the juvenile court failed to ensure
compliance with the notice provisions of ICWA. Consequently, we issued
a limited reversal and remanded the matter with directions that
the court order Agency to comply with ICWA's notice requirements
and case law interpreting ICWA. Our disposition provided that “
[i]f, after proper inquiry and notice, a tribe claims Terrance
is an Indian child, the juvenile court shall proceed in
conformity with all provisions of ICWA. If, on the other
hand, no response is received or no tribe claims that
Terrance is an Indian child, the judgment terminating parental rights
shall be reinstated.”
the issuance of our remittitur, Cherilynn filed a section 388
modification petition, alleging circumstances had **818 changed in that Rodney and Rachel were recently returned to
Cherilynn requested the juvenile court reverse the order terminating parental
rights, conduct a new selection and implementation hearing to consider
this new evidence, and place Terrance with Cherilynn and the
As to best interests, Cherilynn alleged a bonding study showed
there is a “highly
significant and positive relationship between Terrance and his siblings.”
Thus, she claimed, terminating parental rights substantially interferes with Terrance's
sibling relationships and maintaining this relationship outweighs the permanency and
stability of adoption.
a hearing to address the effect of our remittitur, the
court ordered Agency to comply with ICWA notice provisions as
discussed in the nonpublished opinion, In
re Terrance B., supra, D046481.
The court stated it would set a special hearing to
address only compliance with ICWA notice and, if proper notice
had occurred, it would reinstate the judgment terminating parental rights.
Counsel for Cherilynn then asked for a hearing on her
section 388 modification petition, arguing the court should consider new
evidence as to the beneficial sibling relationship exception of section
366.26, subdivision (c)(1)(E) based on the siblings' recent return to
The court denied the request for a hearing, finding our
opinion directed a limited reversal and remand for ICWA notice
only, and the opinion did not permit the juvenile court
to revisit issues from the selection and implementation hearing that
were previously resolved and affirmed on appeal.FN4
court explained the request for a hearing on the section
388 modification petition was untimely because “the
matter has been resolved by this court and the appellate
I ruled on the [section 366.26, subdivision] (c)(1)(E) exception.
I found it did not apply.
The appellate court has affirmed the court on that issue.
This decision I don't believe opens up the gates to
go back and revisit that.”
issue before us is whether the juvenile court had jurisdiction
to hear Cherilynn's section 388 modification petition when the matter
before it had *971 been remanded for the limited purpose of ensuring compliance with
the provisions of ICWA. Cherilynn contends the juvenile court mistakenly
believed its jurisdiction was limited by this court's remittitur, resulting
in the erroneous failure to hear evidence of Terrance's current
circumstances in accordance with the court's continuing duty to consider
a minor's best interests.
She asserts because the judgment terminating her parental rights was
reversed, the juvenile court should have considered the beneficial sibling
relationship exception of section 366.26, subdivision (c)(1)(E) as presented in
her section 388 modification petition.
propriety of limited reversals and remands in ICWA cases was
recently addressed by this court in In
re Francisco W. (2006) 139 Cal.App.4th 695, 704-710, 43 Cal.Rptr.3d 171 (Francisco
In that case, the appellants challenged our practice of issuing
limited reversals in cases with ICWA irregularities by which we
order the judgment terminating parental rights to be reinstated if
no Indian tribe intervenes after proper notice is given.
W. at p. 704, 43 Cal.Rptr.3d 171.)
Appellants argued that once the judgment terminating parental rights is
reversed, due process requires a new selection and implementation hearing
under section 366.26 “to
allow the court to consider changes in circumstances that affect
the **819 child's adoptability before his or her biological ties are severed.”
W. at p. 707, 43 Cal.Rptr.3d 171.)
Appellants also argued we act in excess of our jurisdiction
by ordering the juvenile court to revisit only the ICWA
issue, essentially requiring the court to ignore the legislative mandate
for a selection and implementation hearing based on a minor's
W., supra, at p. 707, 43 Cal.Rptr.3d 171.)
rejecting both arguments, we held the practice of issuing limited
legally authorized, consistent with the best interests of children, and
in keeping with fundamental principles of appellate practice.”
W., supra, 139 Cal.App.4th at p. 704, 43 Cal.Rptr.3d 171.)
First, we noted the appellate court's power to order a
retrial on a limited issue is based on the rationale
that when an issue can be separately tried without prejudice
to the litigants, requiring a complete retrial “...
unnecessarily add to the burden of already overcrowded court calendars
and could be unduly harsh on the parties.’
The appellate court's order for a retrial on a limited
issue, contained in its remittitur, “revests
the jurisdiction of the subject matter in the lower court
and defines the scope of the lower court's jurisdiction.
order of the appellate court as stated in the remittitur[
decisive of the character of the judgment to which the
appellant is entitled.
The lower court cannot reopen the case on the facts,
allow the filing of *972 amended or supplemental pleadings, nor retry the case, and if
it should do so, the judgment rendered thereon would be
(Id. at pp. 704-705, 43 Cal.Rptr.3d 171.)
Thus, when a judgment is reversed on appeal with directions
to the trial court to enter a specific judgment, that
the merits of the cause just as effectively as though
the judgment were affirmed on appeal.’
(Id. at p. 705, 43 Cal.Rptr.3d 171.)
further noted “[t]he
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....”
W., supra, 139 Cal.App.4th at p. 705, 43 Cal.Rptr.3d 171.)
In this regard, the practice of limited reversals in defective
notice ICWA appeals “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.”
W., supra, at p. 708, 43 Cal.Rptr.3d 171.)
remittitur issued in Cherilynn's prior appeal reversed the judgment terminating
parental rights for the sole purpose of revesting jurisdiction in
the juvenile court should a tribe, after proper inquiry and
notice, determine Terrance was an Indian child and seek to
Thus, our **820 reversal was expressly limited to ensuring proper ICWA notice and
proceeding in accordance with any responses.
The remittitur defined the scope of the juvenile court's jurisdiction
by ordering the court to reinstate the judgment terminating parental
rights, thereby foreclosing the right to a new selection and
implementation hearing, if ICWA did not apply.
Assuming no tribe intervened, our remittitur left intact the juvenile
court's findings and order with respect to termination of Cherilynn's
the ICWA error is separate and distinct from the section
W., supra, 139 Cal.App.4th at p. 707, 43 Cal.Rptr.3d 171.)
Because the juvenile court's duty was to enter *973 judgment in conformity with our remittitur, it properly declined to
hear Cherilynn's section 388 modification petition.
Cherilynn claims that by filing a section 388 modification petition,
she is seeking to have the court consider changed circumstances
as they affect Terrance's best interests, her petition specifically requests
a new selection and implementation hearing at which she can
litigate the beneficial sibling relationship exception of section 366.26, subdivision
(c)(1)(E) to preclude terminating her parental rights.
However, as 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
W., supra, 139 Cal.App.4th at p. 707, 43 Cal.Rptr.3d 171.)
concedes that our decision in Francisco
W. generally precludes the juvenile court from relitigating issues other than
ICWA compliance at a new selection and implementation hearing.
Nevertheless, she cites language in our opinion acknowledging the possibility
of the “extraordinary
case in which a postjudgment change in circumstances makes it
unlikely the child will be adopted....”
W., supra, 139 Cal.App.4th at p. 709, 43 Cal.Rptr.3d 171.)
Cherilynn asserts Terrance's case is “extraordinary”
in that his best interests were at issue on remand
because the adoptability finding no longer applied once the siblings
were returned to her, causing Terrance to lose an acknowledged
beneficial sibling relationship.
in our decision in Francisco
W. authorizes the juvenile court to entertain a party's section 388
modification petition on a limited remand for ICWA notice compliance.
Rather, when a postjudgment change in circumstances makes it unlikely
the minor will be adopted, section 366.26, subdivision (i)(2) provides
the mechanism by which the juvenile court may restore parental
rights and select a different permanent plan if the minor
has not been adopted after three years.FN5 (Francisco
W., supra, 139 Cal.App.4th at p. 709, 43 Cal.Rptr.3d 171.)
Thus, our limited reversal practice has no effect on the
court's ability to prevent a minor from becoming a “legal
(Id. at p. 710, 43 Cal.Rptr.3d 171.)
minor may also file the petition prior to the expiration
of this three-year period if the child welfare agency stipulates
the minor is no longer adoptable. (§
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
The evidence at the selection and implementation *974 hearing showed Terrance was generally adoptable based on his age,
physical condition and emotional state. (§
Additionally, Terrance's caregiver, with whom he had lived since he
was two years old, was committed to adopting him.
Those circumstances**821 have not changed.
Even after Terrance's siblings were moved from the caregiver's home,
the social worker reported Terrance remained strongly attached to his
caregiver and was thriving in this placement, where he received
the structure, stability and nurturing he needed to continue developing
at an age-appropriate level.
Thus, the alleged changed circumstances-the siblings' return to Cherilynn's custody-did
not adversely affect the likelihood Terrance would be adopted. FN6 (Francisco
W., supra, 139 Cal.App.4th at p. 708, 43 Cal.Rptr.3d 171.)
the time of the selection and implementation hearing, Terrance's caregiver
was willing to adopt Terrance and keep the siblings in
either long-term foster care or guardianship.
The social worker noted Terrance enjoyed living with his siblings
and appeared to be close to them.
Nevertheless, the social worker believed the benefits of permanency for
Terrance outweighed “any
benefits of keeping his legal relationship to his brother and
sister. Terrance deserves to have a permanent home to grow
up in and is considered highly adoptable.”
At the contested hearing, Cherilynn did not claim the beneficial
sibling relationship exception applied to preclude terminating her parental rights
to Terrance even though it was anticipated Terrance's siblings would
eventually be returned to Cherilynn.
argues limiting the juvenile court's postappeal jurisdiction in a manner
that prohibits it from considering a minor's best interests prevents
the court from performing its duty under the statutory dependency
In support of this argument, Cherilynn cites case law allowing
the court on remand to consider a minor's current circumstances.
re S.D. (2002) 99 Cal.App.4th 1068, 1070, 121 Cal.Rptr.2d 518; In
re Eileen A. (2000) 84 Cal.App.4th 1248, 1259, 101 Cal.Rptr.2d 548; In
re Jasmon O. (1994) 8 Cal.4th 398, 414-422, 33 Cal.Rptr.2d 85, 878 P.2d
re Arturo A. (1992) 8 Cal.App.4th 229, 243, 10 Cal.Rptr.2d 131.)
However, those cases involved an unlimited reversal based on error
affecting the particular judgment being challenged and, consequently, the scope
of the issues to be decided on remand required an
updated review hearing encompassing the minor's current status.
in contrast, the order terminating parental rights was not itself
erroneous and reversing the judgment was necessitated only by defective
Limiting the juvenile court's postappeal jurisdiction to ensuring compliance with
the provisions of ICWA is consistent with the court's duty
under the dependency scheme to consider a minor's best interests
in stability and finality and to resolve the matter promptly
and expeditiously.*975 (Francisco
W., supra, 139 Cal.App.4th at p. 706, 43 Cal.Rptr.3d 171;
re Jasmon O., supra, 8 Cal.4th at p. 419, 33 Cal.Rptr.2d 85, 878 P.2d
re Jesusa V. (2004) 32 Cal.4th 588, 625, 10 Cal.Rptr.3d 205, 85 P.3d
By declining to hear Cherilynn's section 388 petition in compliance
with our limited remand order, the juvenile court acted in
Terrance's best interests, allowing him “to
achieve stability and permanency in the least protracted fashion the
W., supra, 139 Cal.App.4th at p. 708, 43 Cal.Rptr.3d 171.)
we to accept Cherilynn's position that a minor's best interests
require consideration of current circumstances, nearly every limited reversal and
remand for ICWA compliance would result in the filing of
a section 388 petition, based on the inevitability that circumstances
had changed, and requiring these changed circumstances be considered at
a new selection and implementation hearing.
Just as section 366.26 does not require a second hearing
when the sole reason for reversal is ICWA compliance, section
388 cannot be used as a vehicle for obtaining one.
W., supra, 139 Cal.App.4th at p. 708, 43 Cal.Rptr.3d 171 [the “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”].)
further contends the court erroneously believed, in reliance on County
Counsel's representations, that the beneficial sibling relationship exception of section
366.26, subdivision (c)(1)(E) had been previously litigated and affirmed on
She asserts that had the court realized the beneficial sibling
relationship exception was not previously litigated, it may have considered
her section 388 petition and made a determination based on
Terrance's best interests.
court declined to hear Cherilynn's section 388 petition because it
properly understood its duty was to enter judgment in conformity
with our remittitur, which limited the court's jurisdiction to ensuring
compliance with ICWA notice.
Even if the court mistakenly believed the beneficial sibling relationship
exception had already been litigated, any error was harmless because
Cherilynn was not entitled to a hearing on her section
388 petition regarding Terrance's best interests or the applicability of
the beneficial sibling relationship exception.
re Natasha A. (1996) 42 Cal.App.4th 28, 38, 49 Cal.Rptr.2d 332 [we review
juvenile court's ruling, not its reasoning, and may affirm if
it was correct on any ground].)
order is affirmed.
and IRION, JJ.
re Terrance B.
Cal.App.4th 965, 50 Cal.Rptr.3d 815, 06 Cal. Daily Op. Serv.
10,469, 2006 Daily Journal D.A.R. 14,952