In re Ivan E.
Filed 7/19/07 In re Ivan E. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re IVAN E., a Person Coming Under the Juvenile Court Law. | |
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. ANTONIO M., Defendant and Appellant. | D050051 (Super. Ct. No. EJ2677A) |
APPEAL from a judgment of the Superior Court of San Diego County, Gary Bubis, Commissioner. Reversed and remanded with directions.
According to the record, dependent child Ivan E. is a member of the Viejas Band of Kumeyaay Indians as a result of his mother's ancestry.[1] He is placed with a maternal relative who is also a member of the tribe, and the tribe supports the placement. Ivan's father, Antonio M., claimed Indian heritage through the Potawatomi tribe. At the detention hearing, the court ordered the Agency to provide notice to the Viejas and Potawatomi tribes. Antonio later claimed Indian heritage through the Navajo tribe. At the June 2006 six-month review hearing, the court found Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.) notice was given.
Antonio appeals the judgment terminating his parental rights. His opening briefs contend the San Diego County Health and Human Services Agency (the Agency) did not comply with the notice provisions of ICWA and the juvenile court did not make a finding pursuant to title 25 United States Code section 1912(f).[2]
Counsel for Antonio, Ivan, and the Agency have filed a stipulation for reversal of the judgment terminating parental rights. The parties request this court remand the case with directions to (1) comply with the notice requirements of ICWA as to all applicable tribes and the Bureau of Indian Affairs (BIA); (2) after notice is properly given, hold a new Welfare and Institutions Code section 366.26 hearing; and (3) at the new hearing, determine whether the evidence supports a finding pursuant to title 25 United States Code section 1912(f). If no additional tribe steps forward asserting Ivan is an Indian child as to that tribe, Viejas or Kumeyaay tribes do not intervene, and the court finds the evidence supports a finding pursuant to title 25 United States Code section 1912(f), the court shall reinstate findings and orders made at the December 4, 2006 section 366.26 hearing. If an additional tribe establishes Ivan is an Indian child as to that tribe, or any other tribe intervenes, the court shall proceed as required by ICWA. The parties also request immediate issuance of the remittitur. We accept the stipulation and reverse. (Code Civ. Proc., 128, subd. (a)(8); In re Francisco W. (2006) 139 Cal.App.4th 695, 711; In re Jonathan D. (2001) 92 Cal.App.4th 105, 111-112; In re Rashad H. (2000) 78 Cal.App.4th 376; Cal. Rules of Court, rule 8.272(c)(1).)
"An appellate court shall not reverse or vacate a duly entered judgment upon an agreement or stipulation of the parties unless the court finds 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).)
There is no reasonable possibility that reversal will adversely affect the interests of nonparties. A stipulated reversal will expedite the ICWA notice process and benefit all relevant tribes and Ivan's relative caretaker, who has expressed a desire to adopt. (In re Rashad H., supra, 78 Cal.App.4th at pp. 380-381.) Additionally, there is no reasonable possibility that reversal will adversely affect the interests of the public. Although this is a confidential proceeding, the public has an interest in keeping children safe, reunifying them with their families and, where that cannot be accomplished, placing them in permanent homes as expeditiously as possible. A prompt resolution of the appeal also reduces the expense to the taxpaying public.
The reason the parties request reversal is to allow compliance with ICWA. Because a stipulated reversal will expedite the ICWA notice process, as well as permanence for Ivan, the public trust will not be eroded. On the contrary, public trust in the courts and their judgments will be advanced by knowing that the Agency, counsel, and the courts will seek to correct errors promptly and reasonably, avoiding delays that might affect children and families. (Cf. In re Rashad H., supra, 78 Cal.App.4th at p. 381.) Finally, the parties' agreement that the judgment must be reversed to comply with ICWA will not lead to a risk of reducing any incentive for pretrial settlement. (Ibid.)
DISPOSITION
The judgment terminating parental rights is reversed. This case is remanded to the juvenile court, with directions to (1) order the Agency to give proper ICWA notice to all applicable tribes and the BIA; (2) after notice is properly given, hold a new Welfare and Institutions Code section 366.26 hearing; and (3) at the new hearing, determine whether the evidence supports a finding pursuant to title 25 United States Code section 1912(f). If no additional tribe steps forward asserting Ivan is an Indian child as to that tribe, no Viejas or Kumeyaay tribes intervene, and the court determines the evidence supports a finding pursuant to title 25 United States Code section 1912(f), the court shall reinstate findings and orders made at the December 8, 2006 section 366.26 hearing. If an additional tribe establishes Ivan is an Indian child as to that tribe, or any other tribe intervenes, the court shall proceed as required by ICWA. The remittitur is to issue forthwith.
McDONALD, J.
WE CONCUR:
BENKE, Acting P. J.
McINTYRE, J.
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[1] The record also refers to Ivan as affiliated with the Kumeyaay tribe, the Viejas tribe, and the Viejas Band of the Mission Indians of Alpine, California. The only federally recognized Viejas tribe is Viejas (Baron Long) Group of Capitan Grande Band of Mission Indians of the Viejas Reservation, California. The only federally recognized Kumeyaay tribe is Ewiiaapaayp Band of Kumeyaay Indians, California. (72 Fed.Reg. 13648 (Mar. 22, 2007).)
[2] Title 25 United States Code section 1912, subdivision (f) states: "No termination of parental rights may be ordered . . . in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child."
