Filed 8/9/22 In re B.T. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Memorandum Opinion[1]

Appellant E.T., father of B.T. and H.T., appeals from an order terminating his parental rights as to B.T. and H.T. Respondent, Santa Clara County Department of Family and Children’s Services (Department), and E.T. jointly move for a summary reversal of the order. The parties agree that the trial court failed to comply with the Indian Child Welfare Act (ICWA), and request that we remand the matter to the trial court for the limited purpose of ensuring compliance with ICWA. We grant the motion and reverse the order pursuant to the stipulation of the parties.

At a jurisdictional and dispositional hearing in February 2020, E.T. and the children’s mother (mother) filed ICWA-20 forms. Mother indicated having no known Indian ancestry, and E.T. indicated that he may have Indian ancestry and provided the name of a paternal grandfather who might have more information. At a six-month review hearing in August 2020, E.T. stated he did not have any additional information about his potential Indian ancestry. In September 2021, E.T. provided the Department with the name of a paternal great-uncle, whom the Department contacted about E.T.’s potential Cherokee heritage. The Department also contacted another paternal family member, various maternal relatives of E.T. who confirmed no Indian ancestry, and the various Cherokee tribes. The Department did not inquire of mother’s relatives regarding potential Indian ancestry, despite contacting a maternal aunt in December 2019 about possible placement.

At a selection and implementation hearing in October 2021, the trial court found ICWA did not apply and terminated the parental rights of E.T. and mother. E.T. timely appealed this order. After E.T. filed his opening brief, the parties jointly moved for summary reversal.

On appeal, E.T. contends that the trial court’s order must be reversed and the matter remanded to the trial court because the court failed to ensure compliance with ICWA. He argues that the Department’s failure to do further investigation about potential Indian ancestry violated ICWA. The Department concedes that the investigation was insufficient, and the parties agree that the juvenile court erred when it found that ICWA did not apply. They further agree that reversal is appropriate. To minimize delay, they jointly request that this court reverse and remand the matter pursuant to their stipulation for the limited purpose of allowing the Department to conduct a proper inquiry and send notice under ICWA as appropriate. (In re N.D. (2020) 46 Cal.App.5th 620, 624.)

The parties’ joint motion supports the conclusion that a summary reversal pursuant to stipulation is appropriate under the facts of this case and the law. (See Code Civ. Proc., § 128, subd. (a)(8).) For the reasons stated in the motion, the court finds that there is no possibility that the interests of nonparties or the public will be adversely affected by the reversal. Summary reversal of the judgment would place the parties in the same position they would be in if the appeal were successfully prosecuted to completion, would save both private and judicial resources because it would obviate the need for further briefing by the parties and review of the record by this court, and most importantly would minimize delay in permanency for the children. Both public policy and the public interest are served by these outcomes.

This court further finds that the parties’ grounds for requesting reversal are reasonable. The parties agree that the Department’s ICWA inquiry was deficient and that the trial court erred in finding ICWA did not apply without ensuring that the Department had completed a sufficient inquiry. They also agree that if after ensuring compliance, the court again finds that ICWA does not apply, the court can reinstate the prior selection and implementation order. These grounds for jointly requesting reversal outweigh the erosion of public trust that may result from the nullification of a judgment and outweigh the risk that the availability of a stipulated reversal will reduce the incentive for pretrial settlement. Public trust in the courts is enhanced, not eroded, when parties recognize and acknowledge errors and agree to resolve them with limited delay. (See Union Bank of Cal. v. Braille Inst. of Am. (2001) 92 Cal.App.4th 1324.)

Disposition

The October 15, 2021, order terminating parental rights is reversed pursuant to the stipulation of the parties. The matter is remanded to the trial court for the limited purpose of ensuring compliance with ICWA. If the court determines that the requirements of ICWA have been met, the court shall reinstate the order. The remittitur shall issue forthwith.

_______________________________

Greenwood, P. J.

WE CONCUR:

______________________________________

Lie, J.

______________________________________

Wilson, J.

In re B.T. et al., D.F.C.S. v. E.T.

H049503

[1] We resolve this case by memorandum opinion under California Standards of Judicial Administration, section 8.1. (See also People v. Garcia (2002) 97 Cal.App.4th 847, 853-855.)