In re James B. CA2/5 ( 2022 )

Filed 5/11/22 In re James B. CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re James B., A Person Coming B316650
Under Juvenile Court Law.
_______________________________ (Los Angeles County Super.
LOS ANGELES COUNTY Ct. No. 20CCJP03414A)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
C.B.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Steff R. Padilla, Juvenile Court Referee.
Conditionally reversed and remanded with directions.
Ernesto Paz Rey, under appointment by the Court of
Appeal, for Defendant and Appellant.
Nancy Sarinana, Children’s Law Center, for Minor.
Dawyn Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Navid Nakhjavani, Principal
Deputy County Counsel, for Plaintiff and Respondent.
_______________________
Mother appeals from an order terminating parental rights
to her son under Welfare and Institutions Code section 366.26.
She contends the juvenile court erred when it determined the Los
Angeles County Department of Children and Family Services
(DCFS) satisfied its inquiry obligations under the Indian Child
Welfare Act (ICWA) and related California law as to mother’s
possible Indian heritage. Mother, DCFS, and son have stipulated
to a conditional reversal and remand to the juvenile court to
permit proper compliance with ICWA and related California law.
We accept the parties’ stipulation.
The conditions that must be satisfied before an appellate
court may accept a stipulated reversal are set out in Code of Civil
Procedure section 128, subdivision (a)(8). (See In re Rashad H.
(2000) 78 Cal.App.4th 376, 379-382 [appellate court found § 128
(a)(8) factors present in dependency appeal].) This appeal
presents a claim of reversible error based on the parties’
agreement that DCFS did not comply with ICWA and related
California law. (See In re H.V. (2022) 75 Cal.App.5th 433; In re
Benjamin M. (2021) 70 Cal.App.5th 735, 744.) We find a
stipulated conditional reversal and remand advances the
interests identified by section 128(a)(8), specifically that:
“(A) There is no reasonable possibility that the interests of
nonparties or the public will be adversely affected by the
reversal,” and “(B) The reasons of the parties for requesting
reversal outweigh the erosion of public trust that may result from
the nullification of a judgment and the risk that the availability
of stipulated reversal will reduce the incentive for pretrial
settlement.” (§ 128(a)(8); see In re Rashad H., supra, at pp. 379-
382.)
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DISPOSITION
The juvenile court’s November 17, 2021 order terminating
parental rights is conditionally reversed and the matter is
remanded to the juvenile court with the following directions.
1. DCFS shall make efforts to interview all available
maternal relatives and any other available extended family
members regarding whether son is or may be an Indian
child.
2. DCFS shall document its efforts to interview available
relatives and extended family members regarding whether
son is or may be an Indian child and provide a detailed
report with said documentation and the results of its
interviews, including attempts to interview relatives and
family members, to the juvenile court.
3. At a noticed hearing, with counsel for the parties
reappointed, the juvenile court shall make a finding
regarding ICWA’s applicability, determine whether DCFS
has interviewed all available maternal relatives and
extended family members, and proceed according to
Welfare and Institutions Code sections 224.2 and 224.3,
including, if required, ordering DCFS to send notices with
the above information to the appropriate tribes in
accordance with ICWA.
4. If based on the responses from the maternal relatives and
extended family members, the juvenile court finds there is
no reason to believe son is an Indian child, or if no tribe or
agency determines son is an Indian child after notice has
been provided pursuant to ICWA, the order terminating
parental rights shall be reinstated. If notices are sent and
after the juvenile court receives responses from the noticed
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tribes, it shall proceed in accord with ICWA if any tribe
determines son is an Indian child.
Pursuant to the parties’ stipulation, the remittitur shall
issue forthwith.
RUBIN, P. J.
I CONCUR:
KIM, J.
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In re James B.
B316650
BAKER, J., Dissenting
Substantial evidence supports the juvenile court’s Indian
Child Welfare Act (ICWA)-related finding. (In re H.V. (2022) 75
Cal.App.5th 433, 441 (dis. opn. of Baker, J.); see also In re J.S.
(2021) 62 Cal.App.5th 678, 688 [applying substantial evidence
standard of review].) I would accordingly reject the parties’
stipulation because this court cannot properly make the findings
required by Code of Civil Procedure section 128, subdivision
(a)(8). (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”].) That is particularly true in light of the majority’s
indeterminate dispositional instructions, which are predicated on
poorly drafted California statutes and do not foreclose the
possibility of yet another appeal on ICWA grounds after the
remand the majority now orders.
BAKER, J.