In re Q.S. CA2/5 ( 2022 )

Filed 8/10/22 In re Q.S. CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re Q.S., Jr., a Person Coming B318456
Under Juvenile Court Law.
_______________________________ (Los Angeles County Super.
LOS ANGELES COUNTY Ct. No. 20CCJP04959B)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
C.T. et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County, Tara Newman, Judge. Conditionally reversed
and remanded with directions.
Elizabeth C. Alexander, under appointment by the Court of
Appeal, for Defendant and Appellant C.T.
Karen Dodd, under appointment by the Court of Appeal, for
Defendant and Appellant Q.S., Sr.
Dawyn Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Aileen Wong, Senior Deputy
County Counsel, for Plaintiff and Respondent.
Kristin Hallak, Children’s Law Center 5, for Q.S., Jr.,
Minor.
___________________________
The parents appeal from an order terminating parental
rights to their son under Welfare and Institutions Code section
366.26. They contend 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; 25 U.S.C. § 1901 et seq.)
and related California law as to son’s possible Indian heritage.
No interested party filed a respondent’s brief; instead, mother,
father, DCFS, and son filed a joint application and stipulation for
conditional affirmance and remand to the juvenile court to permit
proper compliance with ICWA and related California law. We
accept the parties’ stipulation, but our disposition is a conditional
reversal.
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 Benjamin M. (2021)
70 Cal.App.5th 735, 744.) Here, DCFS only inquired with mother
regarding Native Amerian ancestry; DCFS did not ask father or
any other family member about heritage. And, after reviewing
the entire record, we find that the statutory 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.)
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DISPOSITION
The juvenile court’s January 14, 2022, order terminating
parental rights to son is conditionally reversed, and the matter is
remanded to the juvenile court for proceedings required by this
opinion. The court shall order DCFS to make reasonable efforts
to interview available maternal and paternal family members
about the possibility of the parents’ Indian ancestry and to report
on the results of DCFS’s investigation. Based on the information
reported, if the court determines that no additional inquiry or
notice to tribes is necessary, the order terminating 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.
RUBIN, P. J.
I CONCUR:
KIM, J.
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In re Q.S., Jr.
B318456
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, if this court invited further
merits briefing, 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. (July 29, 2022, B314432) ___
Cal.App.5th ___; In re J.S. (2021) 62 Cal.App.5th 678, 688
[applying substantial evidence standard of review].)
BAKER, J.