In re E.H. CA2/5 ( 2022 )

Filed 9/21/22 In re E.H. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re E.H., A Person Coming B318112
Under Juvenile Court Law.
_______________________________ (Los Angeles County
Super. Ct. No.
LOS ANGELES COUNTY 18CCJP02744A)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
S.E.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Lisa A. Brackelmanns, Judge Pro Tempore.
Conditionally affirmed and remanded with directions.
Cristina Gabrielidis, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, William Thetford, Deputy County
Counsel, for Plaintiff and Respondent.
_____________________________________
S.E. (father) appeals from an order terminating his rights
to his child E.H. pursuant to Welfare and Institutions Code
section 366.26,1 contending that the termination order should be
reversed and remanded for compliance with the inquiry and
notice requirements of the Indian Child Welfare Act of 1978
(ICWA; 25 U.S.C. § 1901 et seq.) and related California statutes
(§ 224 et seq.). No interested party filed a respondent’s brief;
instead, counsel for father, the minor, and the Los Angeles
County Department of Children and Family Services filed a joint
application and stipulation for conditional affirmance and
remand to the juvenile court for compliance with ICWA and the
issuance of an immediate remittitur.
This case involves reversible error because the parties
agree, and we concur, there was noncompliance with the inquiry
requirements of ICWA and related California provisions. (In re
H.V. (2022) 75 Cal.App.5th 433, 438; In re Charles W. (2021) 66
Cal.App.5th 483, 489.) The Department did not ask paternal
uncle Oscar E., paternal aunt Brenda M., or maternal
grandmother Yvette V. about Indian heritage even though each
had been interviewed by a social worker for possible placement of
the child and maternal grandmother had appeared in court. And,
after reviewing the entire record, we find that the statutory
1 All further statutory references are to the Welfare and
Institutions Code, unless otherwise indicated.
2
requirements set forth at Code of Civil Procedure section 128,
subdivision (a)(8) for a stipulated reversal have been satisfied
here. (In re Rashad H. (2000) 78 Cal.App.4th 376, 379–382.)
DISPOSITION
The juvenile court’s January 12, 2022, order terminating
father’s parental rights under section 366.26 is conditionally
affirmed and remanded for proceedings required by this opinion.
The court shall order the Department to make reasonable efforts
to interview available maternal and paternal relatives, for
example, paternal uncle Oscar E., paternal aunt Brenda M., and
maternal grandmother Yvette V. about the possibility of the
child’s Indian ancestry and to report on the results of the
Department’s investigation. Nothing in this disposition
precludes the court from ordering additional inquiry of others
having an interest in the children. Based on the information
reported, if the court determines that no additional inquiry or
notice to tribes is necessary, the order terminating father’s
parental rights is to be reinstated. If additional inquiry or notice
is warranted, the court shall make all necessary orders to ensure
compliance with ICWA and related California law.
The remittitur shall issue forthwith.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
3
I concur:
MOOR, J.
4
In re E.H.
B318112
BAKER, J., Dissenting
I would reject the parties’ stipulation to remand the matter
to the juvenile court. This court cannot properly make the
findings required by Code of Civil Procedure section 128,
subdivision (a)(8). (See In re Rashad H. (2000) 78 Cal.App.4th
376, 380 [“[T]here could be an adverse effect on the adoptive
parents’ rights if there were a stipulated reversal of a Welfare
and Institutions Code section 366.26 parental termination rights
order. A stipulated reversal could further delay the conclusion of
the adoption process”].) There is a good case to be made that
substantial evidence supports the juvenile court’s Indian Child
Welfare Act determination. (In re H.V. (2022) 75 Cal.App.5th
433, 441 (dis. opn. of Baker, J.); see also In re Ezequiel G. (2022)
81 Cal.App.5th 984; In re J.S. (2021) 62 Cal.App.5th 678, 688
[applying substantial evidence standard of review].)
BAKER, Acting P. J.