In re Gregory A.

Filed 3/14/07 In re Gregory A. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of San Diego County, Gary M. Bubis, Commissioner. Reversed and remanded with directions.

Gregory A. (Gregory) appeals the judgment terminating his parental rights over Gregory A., Jr. (Gregory, Jr.). Gregory contends notice under the Indian Child Welfare Act (ICWA) (25 U.S.C.  1901 et seq.) was inadequate because the juvenile court failed to order a proper inquiry into his Indian heritage and the ICWA notices sent by the San Diego County Health and Human Services Agency (the Agency) were incomplete. Gregory's counsel, Gregory, Jr.'s counsel, and the Agency's counsel have filed a stipulation for reversal of the judgment, a limited remand with directions to comply with the notice requirements of ICWA, and 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).)

BACKGROUND

In November 2005, just days after Gregory, Jr.'s birth, the Agency filed a dependency petition that alleged as follows. In 1999, one of his siblings became a juvenile court dependent as a result of the mental illness and substance abuse of their mother, Christina M. In 2001, another sibling became a dependent as a result of Christina's methamphetamine use. In March 2005, two more siblings became dependents as a result of Christina's severe neglect and history of substance abuse. Christina failed to reunify with any of the children, and her parental rights were terminated as to the first two children. Christina admitted using drugs while pregnant with Gregory, Jr. She was homeless during the pregnancy, had no prenatal care, and her living situation was unstable. Gregory had failed and been unable to protect and supervise Gregory, Jr.

Gregory, Jr., was detained in the hospital, then, when he was five days old, in a foster home. In February 2006, the court made a true finding on the petition and ordered him placed in foster care. He has lived in the same foster home, with two of his siblings, during the entire case. The foster parents wish to adopt him.

Christina's form JV-130, Parental Notification of Indian Status, filed on November 9, 2005, the date of the detention hearing, stated that she was or might be a member of the Manzanita tribe, or eligible for membership in that tribe.^[1] In her paternity questionnaire, filed the same day, she said that Gregory had no American Indian heritage. There is no other information in the record about any Indian heritage he might have. At the detention hearing, Christina's counsel told the court that Christina's brother was a registered member of the Manzanita tribe. The court found that ICWA might apply and ordered the Agency to give the appropriate notices.

In a report prepared on December 6, 2005, for a December 6 hearing, the Agency said that it had sent ICWA notices to the Bureau of Indian Affairs (BIA) that day. Attached to the report were a copy of the notice, containing scant information; a certified mail receipt, bearing no date or postmark; and a certified mail log. According to the report, Christina had told the social worker that she and her father chose not to register with a tribe, and the social worker should contact Christina's brother for information about her family's Indian ancestry. There is no further mention of Christina's brother in the record.

On February 6, 2006, the Agency filed a report prepared that day for a hearing the same day. Attached to the report was a certified mail receipt bearing the address of the BIA, a signature above the line marked "Received by," and a date stamp of December 12, 2005. The Agency requested the court find that ICWA did not apply. At the February 6 hearing, the court found that 60 days had expired since the ICWA notice was sent, no letters from any tribes had been received, and ICWA did not apply. It told the Agency that if it received any letters from tribes before the next hearing, it should file a new report with the letters attached, and the court would address the ICWA issue again.

At the next hearing on February 21, 2006, the Agency's counsel said that Christina claimed Cherokee and Manzanita heritage in a sibling's case, and the Agency intended to notify the Cherokee Nation. Counsel said that she was not familiar with the Manzanita tribe. The court ordered that the Manzanita and Cherokee tribes be noticed and found that proper notice had been given to the BIA. It set a May 23 hearing regarding ICWA.

On May 18, 2006, the Agency filed a report stating that it had provided ICWA notice to the Cherokee Nation, the Eastern Band of Cherokee Indians, the United Keetoowah Band of Cherokee Indians, the Manzanita Band of Mission Indians, and the BIA. Attached to the report were certified mail receipts for all of the above entities except the Eastern Band of Cherokee Indians; a certified mail log bearing entries for all of the entities; and a copy of the notice sent to the BIA, again with scant information. Also attached were a copy of a letter from the United Keetoowah Band of Cherokee Indians, saying that, based on the information provided, there was no evidence that Gregory, Jr., was a descendent from anyone on the Keetoowah Roll; and a letter from the BIA, saying that appropriate notice to the tribes had been provided. On May 23, 2006, the court found that ICWA did not apply.

On October 18, 2006, the Agency filed its Welfare and Institutions Code section 366.26 report. Attached to the report were some of the certified mail receipts attached to the May 18 report.

On October 31, 2006, the court terminated parental rights. Gregory file a timely notice of appeal. In his opening brief, he contends ICWA notice was inadequate because the juvenile court failed to order him to complete a form JV-130 or make any other inquiry into his Indian heritage. He also contends the ICWA notices sent by the Agency were incomplete in that they contained little information about maternal grandparents and great grandparents, contained no information about Christina's brother or paternal relatives, and listed Christina's tribe as "unknown." Also in the brief, he requests this court "reverse the orders of the juvenile court finding that ICWA did not apply and terminating his parental rights and remand to the juvenile court for proper inquiry[,] and an order that [he] complete a JV-130[, and] a new [Welfare and Institutions Code] section 366.26 hearing."

DISCUSSION

"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).)

According to the parties' joint application and stipulation for reversal, "the juvenile court did not comply with current California case law regarding ICWA notice." The application and stipulation states: "[t]he appellate record is devoid of copies of the notices to the tribes, and the information in the notice forms . . . is scant, with no accompanying information as to why relatives who allegedly had tribal information were not contacted." The parties conclude that "the juvenile court erred in finding the ICWA did not apply to Gregory A. without making a proper inquiry and filing copies of the requisite forms. (In re Karla C. (2003) 113 Cal.App.4th 166, 175-176, 178-179; In re

C.D. (2003) 110 Cal.App.4th 214, 223.)" The parties request that this court "reverse the juvenile court's orders terminating parental rights with instructions to reinstate such orders if Gregory[, Jr. ,] is found not to be an Indian child following proper ICWA notice."

Our independent review of the record, summarized above, leads us to conclude that we should accept the stipulation for reversal. First, there is no reasonable possibility that reversal will adversely affect the interests of nonparties. A stipulated reversal will expedite the ICWA notice process and therefore benefit any Indian entities should ICWA be found to apply. A stipulated reversal will also benefit the prospective adoptive parents by lessening the delay before a final determination regarding termination of parental rights. (In re Rashad H., supra, 78 Cal.App.4th at pp. 380-381.) Christina, who has not appealed, will achieve reversal of the termination of her parental rights. Additionally, there is no reasonable possibility that reversal will adversely affect the interests of the public. While 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.

Second, 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 Gregory, Jr., 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 provide proper ICWA notice 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 order the Agency to give proper ICWA notice to any applicable tribes and the BIA. If, after proper notice, no tribe seeks to intervene or

otherwise indicates Gregory, Jr., is an Indian child, the court shall reinstate the judgment. The remittitur is to issue forthwith.

HALLER, Acting P. J.

WE CONCUR:

McDONALD, J.

McINTYRE, J.

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^[1] Gregory was present in court on November 9 and attended hearings on December 6, 2005, and January 9 and February 21, 2006.