Filed 4/13/22 In re E.V. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from orders of the Superior Court of Los Angeles County, Marguerite D. Downing, Judge. Conditionally reversed and remanded, with directions.

Aida Aslanian, under appointment by the Court of Appeal, for Defendant and Appellant.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, Tracey Dodds, Principal Deputy County Counsel for Plaintiff and Respondent.

__________________________

Brittany V.M. (mother) appeals from the October 4, 2021 order terminating parental rights to her minor children, H.P. and E.V.M. (children), pursuant to the Welfare and Institutions Code section 366.26.[1] Counsel for mother, the children, and the Los Angeles County Department of Children and Family Services (the Department) have filed a joint application and stipulation seeking a limited reversal 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 reverse 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 duties of inquiry and notice under ICWA and related California statutes. The Department agrees that it failed to interview paternal grandmother about possible Indian ancestry, and it is impossible to determine from the record who the Department interviewed and what information the Department gathered with regard to Indian heritage. Father at one point claimed possible Blackfeet heritage, and the Department sent an ICWA notice to the Blackfeet Tribe of Montana, but it also sent notices to numerous Apache tribes, and the notices indicated that an unknown Indian custodian might be a member of an Apache Tribe. There is no evidence to clarify what information the Department obtained, or from whom, that led it to provide notice to Apache tribes. ~(CT 62, 204-215; SCT 1, 2, 7)~

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 reversal 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: (1) order the Department to interview all available extended family members, specifically the children’s paternal grandmother, as to whether the children are or may be Indian children; (2) order the Department to file a detailed report with the juvenile court regarding all interviews, providing the names of the persons interviewed, their relationships to the children, and all information provided; and provide any information previously presented to the Department indicating that the children might have Apache heritage; (3) if necessary, the juvenile court shall order the Department to provide notice to the appropriate tribes and the Bureau of Indian Affairs (BIA) in

accordance with the ICWA; and (4) the juvenile court is to make appropriate ICWA findings. If no tribe indicates the children are Indian children, the juvenile court shall reinstate the order terminating parental rights. However, if a tribe indicates that the children are Indian children, then the juvenile court is to proceed in compliance with the ICWA.

We conclude that a reversal 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 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.)

DISPOSITION

The order terminating parental rights under Welfare and Institutions Code section 366.26 is conditionally reversed 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 matter is remanded to the trial court with directions to reappoint counsel for the parents and order the Los Angeles County Department of Children and Family Services (the Department) to interview available extended family members as to whether the children are or may be Indian children; order the Department to file a detailed report with the juvenile court regarding all interviews, providing the names of the persons interviewed, their relationships to the children, and all information provided; if necessary, the juvenile court shall order the Department to provide notice to the appropriate tribes and the Bureau of Indian Affairs (BIA) in accordance with the ICWA; and the juvenile court is to make appropriate ICWA findings. If no tribe indicates the children are Indian children, the juvenile court shall reinstate the order terminating parental rights. However, if a tribe indicates that the children are Indian children, then the juvenile court is to proceed in compliance with the ICWA. The remittitur shall issue forthwith.

MOOR, J.

We concur:

RUBIN, P. J.

KIM, J.

[1] Further statutory references are to the Welfare and Institutions Code unless stated otherwise.