216 Cal. App. 4th 1125
Cal. Ct. App.2013Background
- Referee terminated parental rights of C.W. and La.J. as to L.J.; both parents appealed the order.
- Father moved for rehearing/reconsideration claiming he was late after leaving a voicemail; referee purported to grant rehearing and set aside the order.
- At a later hearing attended by father, referee again terminated parental rights for both parents; father alone appealed that second order.
- Court held the first appeal was not moot because the original order was final and conclusive.
- Because the referee’s acts after the original order were void for lack of jurisdiction, the appeal in the second case (C072166) was dismissed.
- Merits: the disentitlement doctrine did not bar the appeals; ICWA remand was required; placement with maternal grandmother was denied; ICWA notice failure required remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Disentitlement applicable to appeal | Department argues parents’ concealment justifies disentitlement. | Parents contend disentitlement should not bar their appeals. | Disentitlement not applied here. |
| Which appeal is operative and final | Department urges first order final; second order void. | Parents seek review of second order as well. | First order final; second order void; dismiss C072166. |
| ICWA remand required | No error; ICWA compliance required only if applicable. | ICWA notice and inquiry possibly defective; needs remand. | Remand for limited ICWA proceedings required. |
| Placement with maternal grandmother | Preferential placement with relative; court should consider relative placement. | Placement with grandmother was appropriate and preferable. | Denial of placement not arbitrary; supported by record. |
| ICWA notice and inquiry adequacy | Notice not adequately pursued; information may have been available. | Department attempted inquiry but information lacking. | ICWA inquiry deficient; remand for proper notice and inquiry. |
Key Cases Cited
- In re R.S., 179 Cal.App.4th 1137 (Cal. Ct. App. 2009) (finality of a referee's order; void acts without jurisdiction)
- In re Clifford C., 15 Cal.4th 1085 (1997) (defining finality and rehearing procedures for referee orders)
- In re Kamelia S., 82 Cal.App.4th 1224 (Cal. Ct. App. 2000) (disentitlement applied in fugitive-like conduct during appeal)
- Polanski v. Superior Court, 180 Cal.App.4th 507 (Cal. Ct. App. 2009) (disentitlement requires balancing equities)
- In re Esperanza C., 165 Cal.App.4th 1042 (Cal. Ct. App. 2008) (standing to appeal relative placement where affects termination)
- In re H.G., 146 Cal.App.4th 1 (Cal. Ct. App. 2006) (standing to challenge relative placement under certain assumptions)
- In re J.T., 154 Cal.App.4th 986 (Cal. Ct. App. 2007) (ICWA notice duties and purpose of inquiry)
- Nicole K. v. Superior Court, 146 Cal.App.4th 779 (Cal. Ct. App. 2007) (harmless error review for ICWA notices)
- In re Esparza C., 165 Cal.App.4th 1042 (Cal. Ct. App. 2008) (relative placement considerations and adoption exceptions)