In re Joseph T.

Filed 3/16/06 In re Joseph T. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from an order of the Superior Court of Los Angeles County, Sherri S. Sobel, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Reversed with directions.

Andrea Renee St. Julian, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., Los Angeles County Counsel, Larry Cory, Assistant County Counsel, Arezoo Pichvai, Deputy County Counsel for Plaintiff and Respondent.

Yvonne T., the mother, appeals from a Welfare and Institutions Code section 366.26 parental termination rights order. She argues that she is entitled to reversal of the adjudication, disposition, and parental termination rights orders because of non‑compliance with the Indian Child Welfare Rights Act. (25 U.S.C. § 1901 et seq.) The Department of Children and Family Services has stipulated that the parental termination rights order may be reversed. Both sides have stipulated to the immediate issuance of the remittitur.

First, as to the July 13, 2004 adjudication and dispositional orders, we have no jurisdiction to consider the mother's Indian Child Welfare Rights Act contentions. No appeal was taken from the dispositional order. Issues relating to prior non-appealed final orders are res judicata and may not be raised in a subsequent appeal. (Code Civ. Proc., § 906; In re Matthew C. (1993) 6 Cal.4th 386, 393; Wanda B. v. Superior Court (1996) 41 Cal.App.4th 1391, 1395; In re Cicely L. (1994) 28 Cal.App.4th 1697, 1705; In re Elizabeth M. (1991) 232 Cal.App.3d 553, 563.) Hence, all of those orders are now final and not subject to appellate review.

Second, the parties agree there was non compliance with the Indian Child Welfare Rights Act. We concur in their assessment in this regard. Further, the parties agree the October 4, 2005 parental termination rights order must be reversed and remanded to permit compliance with the Indian Child Welfare Rights Act. Any stipulated reversal must meet the standards imposed by Code of Civil Procedure section 128, subdivision (a)(8). In this case, our ability to accept the stipulation to reverse is controlled by our prior decision in the case of In re Rashad H. (2000) 78 Cal.App.4th 376, 379-382. The present case involves reversible error, the failure to give notice to the tribe as required by the Indian Child Welfare Act. (In re Marinna J. (2001) 90 Cal.App.4th 731, 736-740; In re Desiree F. (2000) 83 Cal.App.4th 460, 471-472; In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421-1422; In re Junious M. (1983) 144 Cal.App.3d 786, 790-791.) Because the permanent plan order would be reversed under any circumstances, a stipulated reversal advances those interests identified in Code of Civil Procedure section 128, subdivision (a)(8) for the reasons we explained in the case of In re Rashad H., supra, 78 Cal.App.4th at pages 379-382. (See Union Bank of California v. Braille Inst. of America, Inc. (2001) 92 Cal.App.4th 1324, 1329-1330.) There is no merit to the mother's argument we should order the trial court to reconsider the merits of the parental termination and permanent plan orders. No error occurred as to the merits.

The Welfare and Institutions Code section 366.26 order is reversed and the cause is remanded for compliance with the federal Indian Child Welfare Act requirements.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J.

We concur:

ARMSTRONG, J.

KRIEGLER, J.

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