In re A.M. CA2/5

Filed 5/23/22 In re A.M. CA2/5
(see dissenting opinion)
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re A.M, a Person Coming Under B317806
the Juvenile Court Law.
(Los Angeles County
Super. Ct. No.
18CCJP01034A)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
S.H.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Martha A. Matthews, Judge. Conditionally
affirmed and remanded, with directions.
Emery El Habiby, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, Sally Son, Deputy County Counsel for
Plaintiff and Respondent.
__________________________
S.H. (mother) appeals from the January 7, 2022 order
terminating parental rights to her minor child, A.M. (minor),
pursuant to section 366.26.1 Counsel for mother, minor, and the
Los Angeles County Department of Children and Family Services
(the Department) have filed a joint application and stipulation
seeking a conditional affirmance and remand with directions to
the Department and the juvenile court to ensure compliance with
the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.).
Finding that the requirements of Code of Civil Procedure
section 128, subdivision (a)(8), are satisfied, we accept the
stipulation, conditionally affirm the order terminating parental
rights, and remand to the juvenile court to permit the parties to
comply with the terms of their stipulation and to determine
ICWA compliance.
The Department Agrees with Mother’s Contention on Appeal
Mother’s sole argument on appeal is that the Department
did not comply with its inquiry duties under ICWA and related
California statutes. The record reflects that the Department
investigated mother’s assertion that her family had a connection
to the Cherokee tribe, sent ICWA notices to the Cherokee tribes
and the Bureau of Indian Affairs, and did not receive any
1 Further statutory references are to the Welfare and
Institutions Code unless stated otherwise.
2
responses indicating minor was an Indian child. L.M. (father)
denied any Indian ancestry, but the Department agrees that it
failed to interview paternal extended family members about
possible Indian ancestry. At the July 10, 2018 jurisdiction and
disposition hearing, the juvenile court found there was no reason
to know minor was an Indian child. The court terminated
parental rights over minor at a section 366.26 hearing on
January 7, 2022, and mother appealed.
The Parties’ Stipulation Meets Statutory Requirements
Before reversing or vacating a judgment based upon a
stipulation of the parties, an appellate court must find “both of
the following: [¶] (A) There is no reasonable possibility that the
interests of nonparties or the public will be adversely affected by
the reversal. [¶] (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.” (Code Civ. Proc., § 128, subd. (a)(8).)
Here, the parties have stipulated to a conditional
affirmance and remand that will place the parties in the same
position they would be in if mother’s appeal was prosecuted to
successful completion. The parties jointly request remand of the
action to the juvenile court with directions to the court to order
the Department to inquire of available paternal extended family
members about any Indian ancestry, report the efforts and
interview results to the court, and if necessary, provide notice to
any identified tribes and the Bureau of Indian Affairs in
accordance with ICWA. The parties further request that on
3
remand, the juvenile court be directed to then make ICWA
findings at a noticed hearing with counsel for the parents
reappointed. If the court finds ICWA is not applicable, the order
terminating parental rights shall remain the order of the court.
If the court determines minor is an Indian child, it shall proceed
in compliance with ICWA. Finally, the parties ask this court to
direct that remittitur issue forthwith.
We conclude that a conditional affirmance based upon the
above stipulation meets the requirements of section 128,
subdivision (a)(8). First, we find “no reasonable possibility that
the interests of nonparties or the public will be adversely affected
by the reversal.” (Code Civ. Proc., § 128, subd. (a)(8)(A).) The
two groups of nonparties who could potentially be adversely
affected by a stipulated reversal are prospective adoptive parents
and Indian tribes. There is no reasonable possibility that the
interests of either group will be adversely affected, because the
stipulated reversal serves to expedite the Department’s
compliance with its statutory obligations under ICWA. (See, e.g.,
In re Rashad H. (2000) 78 Cal.App.4th 376, 381 (Rashad H.); cf.
In re B.D. (2019) 35 Cal.App.5th 803, 820 [denying request for
stipulated reversal where agency acknowledged failure to alert
court and parties to problems in minor’s prospective adoptive
home].)
Second, the parties’ reasons for requesting a limited
reversal with directions outweigh any erosion of public trust that
may result from the reversal, as well as the risk of reducing any
incentive for pretrial settlement. The reason the parties are
requesting reversal is to ensure compliance with ICWA. The
requested reversal therefore enhances public trust, rather than
eroding it. In terms of the risk of reducing incentives for pretrial
4
settlement, “[t]here is no evidence that settlement is an option in
connection with the Welfare and Institutions Code section 366.26
issues which will be addressed upon issuance of the remittitur.
Moreover, the parties are in agreement that the case will be
reversed anyway; so there is no risk that a stipulated reversal
will reduce the incentive for settlement prior to the Welfare and
Institutions Code section 366.26 hearing.” (Rashad H., supra, 78
Cal.App.4th at p. 381.)
5
DISPOSITION
The order terminating parental rights under Welfare and
Institutions Code section 366.26 is conditionally affirmed. The
matter is remanded for the sole purpose of compliance with the
inquiry and notice provisions of the Indian Child Welfare Act
(ICWA) (25 U.S.C. § 1901 et seq.) and related state statutes
(Welf. & Inst. Code, § 224.1 et seq.). The trial court is directed to
reappoint counsel for the parents, and order the Department to
inquire of available paternal extended family members about any
Indian ancestry, report the efforts and interview results to the
court, and if necessary, provide notice to any identified tribes and
the Bureau of Indian Affairs in accordance with ICWA. After
receiving the Department’s report, the juvenile court is directed
to then make ICWA findings at a noticed hearing. If the court
finds ICWA is not applicable, the order terminating parental
rights shall remain the order of the court. If the court determines
minor is an Indian child, it shall proceed in compliance with
ICWA. The remittitur shall issue forthwith.
MOOR, J.
I concur:
KIM, J.
6
In re A.M.
B317806
BAKER, Acting P. J., Dissenting
Substantial evidence supports the juvenile court’s Indian
Child Welfare Act (ICWA)-related findings. (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, Acting P. J.