Filed 1/7/22 In re C.T. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re C.T., a Person Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E078002
Plaintiff and Respondent; (Super.Ct.No. J287087)
v. OPINION
C.T.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Annemarie G.
Pace, Judge. Reversed.
Michelle L. Jarvis, under appointment by the Court of Appeal, for Defendant and
Appellant.
Michelle Blakemore and Tom Bunton, County Counsel and Richard Van Frank,
Deputy County Counsel for Plaintiff and Respondent.
1 C.T. (father) appeals the order of the San Bernardino juvenile court made pursuant
to section 366.26 of the Welfare and Institutions Code terminating parental rights as to
his son, C.T., Jr. (the child).1
Respondent San Bernardino County’s Department of Children and Family
Services (the Department) and father have submitted a joint application and stipulation
asking this court to order a limited reversal of the terminating order. They request we
remand the matter with instructions to the juvenile court and the Department to comply
with the inquiry requirements of the Indian Child Welfare Act (ICWA) and California’s
ICWA-implementing statutes and rules applicable to juvenile dependency proceedings.
(25 U.S.C. §§ 1901, et seq.; Welf. & Inst. Code, §§ 224.2, 224.3; rule 5.481.) After our
own careful review of the entire record, we find the court and the Department did fail to
comply with the inquiry requirements, and we conditionally reverse the order terminating
parental rights and remand with directions for compliance with the federal and state
ICWA inquiry and notice provisions.
ICWA Facts
At the time the child was taken into protective custody by the Department just
days after his birth, his homeless parents indicated they did not have Indian ancestry.
When the parents came to the court for the detention hearing, the court apparently
had each of them complete a Parental Notification of Indian Status ICWA-020 inquiry
form as required by rule 5.481(a)(2)(C). Each parent also completed the Department’s
1All further statutory references are to the Welfare and Institutions Code unless otherwise noted, and references to rules are to California Rules of Court.
2 Family Find and ICWA Inquiry form. On her forms, mother said she had no Indian
ancestry as far as she knows, but father indicated on his that he might have Indian
ancestry in an unknown tribe.
Both parents left the court before the detention hearing commenced. The court
acknowledged father’s ICWA-020 form indicated his claim of possible Indian ancestry
and said it would pursue the issue when the parents were present.
In a report prepared in anticipation of the November 2020 hearing on jurisdiction
and disposition, the Department’s social worker said she was unable to interview the
parents to obtain Indian ancestry information because they did not return any of her calls.
The worker also reported ICWA did not apply to the proceedings, noting incorrectly that
both parents had denied Indian ancestry at the detention hearing.
The parents did not appear at the hearing. The court found the child came within
subdivision (b) of section 300, adjudged him a dependent of the court, and ordered his
removal from the parents with provision of family reunification services. It also found
the child does not come under the provisions of ICWA. There is no mention of any
further ICWA inquiry in the record following the no-ICWA finding.
Over the next six months, the parents did not engage in reunification services or
consistently attend supervised visits with the child. The social worker recommended the
court terminate family reunification services and set the matter for a permanent plan
selection hearing pursuant to section 366.26 at the six-month review hearing set for May
18, 2021.
3 On May 14, 2021, just four days before the review hearing, the social worker
informed the court in a Department 6.7 report that a paternal uncle had contacted her to
say he would be starting the process to become a certified placement home so the child
could be placed in his care. She revealed the uncle had first come forward on January 6,
2021. There is nothing in the record that suggests the Department ever asked him about
the paternal family’s possible Indian ancestry.
The parents did not attend the review hearing. The court acknowledged receipt of
the six-month and 6.7 reports, and proceeded to terminate family reunification services
and set the matter for a section 366.26 permanent plan selection hearing. The only
mention of the paternal uncle during the hearing was a reference to the March 2021
denial of his request to be an emergency placement for the child.
The Department’s report prepared for the 366.26 hearing repeated the incorrect
statement made in its jurisdiction/disposition report that the parents denied Indian
ancestry at the detention hearing. It also stated they had not completed the Family Find
and ICWA Inquiry forms, which is also incorrect. The report contained details of a social
worker’s July 2021 interview of the paternal uncle and the Department’s reasons he was
not considered a suitable placement for the child. There is no indication the social
worker asked the uncle about possible Indian ancestry in the family or requested family
biographical information.
The parents made their first appearance in the juvenile court on September 15,
2021 at a hearing intended to establish they had notice of the section 366.26 hearing.
Because it was the parents’ first appearance, the court was required by subdivision (c) of
4 section 224.2 to ask them if they knew or had reason to know the child is an Indian child.
It did not do so.
The parents were present at the November 1, 2021 permanent plan selection
hearing. The court terminated their parental rights and ordered adoption as the child’s
permanent plan. Father appealed.
Stipulation
In their stipulation, the parties agree a limited reversal and remand of the order
terminating father’s parental rights is called for because the juvenile court and the
Department failed to comply with the ICWA inquiry requirements imposed by ICWA (25
U.S.C. §§ 1901, et seq.) and California’s corresponding statutes and rules (§§ 224.2,
224.3; rule 5.481.)
Code of Civil Procedure section 128, subdivision (a)(8) authorizes appellate courts
to reverse a judgment based upon a stipulation of the parties only if (i) there is no
reasonable possibility that reversal would adversely affect the interests of nonparties or
the public, and (ii) the reasons for requesting the reversal outweigh both the erosion of
public trust that may result from the nullification of a judgment and the risk that the
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Filed 1/7/22 In re C.T. CA4/2
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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re C.T., a Person Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E078002
Plaintiff and Respondent; (Super.Ct.No. J287087)
v. OPINION
C.T.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Annemarie G.
Pace, Judge. Reversed.
Michelle L. Jarvis, under appointment by the Court of Appeal, for Defendant and
Appellant.
Michelle Blakemore and Tom Bunton, County Counsel and Richard Van Frank,
Deputy County Counsel for Plaintiff and Respondent.
1 C.T. (father) appeals the order of the San Bernardino juvenile court made pursuant
to section 366.26 of the Welfare and Institutions Code terminating parental rights as to
his son, C.T., Jr. (the child).1
Respondent San Bernardino County’s Department of Children and Family
Services (the Department) and father have submitted a joint application and stipulation
asking this court to order a limited reversal of the terminating order. They request we
remand the matter with instructions to the juvenile court and the Department to comply
with the inquiry requirements of the Indian Child Welfare Act (ICWA) and California’s
ICWA-implementing statutes and rules applicable to juvenile dependency proceedings.
(25 U.S.C. §§ 1901, et seq.; Welf. & Inst. Code, §§ 224.2, 224.3; rule 5.481.) After our
own careful review of the entire record, we find the court and the Department did fail to
comply with the inquiry requirements, and we conditionally reverse the order terminating
parental rights and remand with directions for compliance with the federal and state
ICWA inquiry and notice provisions.
ICWA Facts
At the time the child was taken into protective custody by the Department just
days after his birth, his homeless parents indicated they did not have Indian ancestry.
When the parents came to the court for the detention hearing, the court apparently
had each of them complete a Parental Notification of Indian Status ICWA-020 inquiry
form as required by rule 5.481(a)(2)(C). Each parent also completed the Department’s
1All further statutory references are to the Welfare and Institutions Code unless otherwise noted, and references to rules are to California Rules of Court.
2 Family Find and ICWA Inquiry form. On her forms, mother said she had no Indian
ancestry as far as she knows, but father indicated on his that he might have Indian
ancestry in an unknown tribe.
Both parents left the court before the detention hearing commenced. The court
acknowledged father’s ICWA-020 form indicated his claim of possible Indian ancestry
and said it would pursue the issue when the parents were present.
In a report prepared in anticipation of the November 2020 hearing on jurisdiction
and disposition, the Department’s social worker said she was unable to interview the
parents to obtain Indian ancestry information because they did not return any of her calls.
The worker also reported ICWA did not apply to the proceedings, noting incorrectly that
both parents had denied Indian ancestry at the detention hearing.
The parents did not appear at the hearing. The court found the child came within
subdivision (b) of section 300, adjudged him a dependent of the court, and ordered his
removal from the parents with provision of family reunification services. It also found
the child does not come under the provisions of ICWA. There is no mention of any
further ICWA inquiry in the record following the no-ICWA finding.
Over the next six months, the parents did not engage in reunification services or
consistently attend supervised visits with the child. The social worker recommended the
court terminate family reunification services and set the matter for a permanent plan
selection hearing pursuant to section 366.26 at the six-month review hearing set for May
18, 2021.
3 On May 14, 2021, just four days before the review hearing, the social worker
informed the court in a Department 6.7 report that a paternal uncle had contacted her to
say he would be starting the process to become a certified placement home so the child
could be placed in his care. She revealed the uncle had first come forward on January 6,
2021. There is nothing in the record that suggests the Department ever asked him about
the paternal family’s possible Indian ancestry.
The parents did not attend the review hearing. The court acknowledged receipt of
the six-month and 6.7 reports, and proceeded to terminate family reunification services
and set the matter for a section 366.26 permanent plan selection hearing. The only
mention of the paternal uncle during the hearing was a reference to the March 2021
denial of his request to be an emergency placement for the child.
The Department’s report prepared for the 366.26 hearing repeated the incorrect
statement made in its jurisdiction/disposition report that the parents denied Indian
ancestry at the detention hearing. It also stated they had not completed the Family Find
and ICWA Inquiry forms, which is also incorrect. The report contained details of a social
worker’s July 2021 interview of the paternal uncle and the Department’s reasons he was
not considered a suitable placement for the child. There is no indication the social
worker asked the uncle about possible Indian ancestry in the family or requested family
biographical information.
The parents made their first appearance in the juvenile court on September 15,
2021 at a hearing intended to establish they had notice of the section 366.26 hearing.
Because it was the parents’ first appearance, the court was required by subdivision (c) of
4 section 224.2 to ask them if they knew or had reason to know the child is an Indian child.
It did not do so.
The parents were present at the November 1, 2021 permanent plan selection
hearing. The court terminated their parental rights and ordered adoption as the child’s
permanent plan. Father appealed.
Stipulation
In their stipulation, the parties agree a limited reversal and remand of the order
terminating father’s parental rights is called for because the juvenile court and the
Department failed to comply with the ICWA inquiry requirements imposed by ICWA (25
U.S.C. §§ 1901, et seq.) and California’s corresponding statutes and rules (§§ 224.2,
224.3; rule 5.481.)
Code of Civil Procedure section 128, subdivision (a)(8) authorizes appellate courts
to reverse a judgment based upon a stipulation of the parties only if (i) there is no
reasonable possibility that reversal would adversely affect the interests of nonparties or
the public, and (ii) the reasons for requesting the reversal outweigh both the erosion of
public trust that may result from the nullification of a judgment and the risk that the
availability of a stipulated reversal will reduce the incentive for pretrial settlement.
Those conditions are met here.
The nonparties in this case who are potentially directly affected by the appeal and
its outcome are the prospective adoptive parents who presumably have an interest in
finalizing the order terminating the rights of the biological parents. (In re Rashad H.
(2000) 78 Cal.App.4th 376, 380 (Rashad H.).) A stipulated reversal materially advances
5 the pace of the appeal process by eliminating the time consumed by briefing, oral
argument, preparation of an opinion, and waiting for the decision to become final before
the issuance of the remittitur. (Ibid.) Similarly, the interest of the public in swift
resolution of pending appeals is advanced by a stipulated reversal. (Id., at pp. 380-381.)
The early recognition by the parties’ counsel of an ICWA error and their taking
appropriate action to expedite resolution of the appeal and correction of the error
advances the public trust in the legal profession and the judiciary. (Rashad H., supra, 78
Cal.App.4th at p. 381.) And, permitting a stipulated reversal here does not reduce any
incentive for pretrial settlement because the parties have agreed to a limited reversal for
compliance with the mandatory ICWA inquiry provisions in a matter that does not lend
itself to pretrial resolutions. (Ibid.)
The juvenile court and the Department have an affirmative and continuing duty to
inquire about a child’s status as an Indian child. (§ 224.2, subd. (a); In re T.G. (2020) 58
Cal.App.5th 275, 290 (T.G.).) In view of the parties’ agreement that the juvenile court
and the Department failed to comply with that duty, and our conclusion after careful
review of the entire record that the court and the Department did not make the ICWA
inquiries as required by federal and state law, a limited reversal of an order terminating
parental rights is appropriate. (T.G., supra, 58 Cal.App.5th at p. 292.)
The purpose of termination of parental rights is to free a child for adoption. (Rule
5.725(a).) Because the reinstatement of father’s parental rights precludes the child’s
adoption at this time, the reinstatement of mother’s parental rights pending resolution of
6 the ICWA inquiry issue is in the child’s best interests. (In re Mary G. (2007) 151
Cal.App.4th 184, 208.)
Disposition
The order terminating the rights of the child’s parents is conditionally reversed and
the matter is remanded to the juvenile court with directions to reappoint counsel for the
parents and to comply with the inquiry and notice provisions of ICWA, sections 224.2
and 224.3, and California Rules of Court. The court is to direct the Department to
comply with those provisions by fully investigating the child’s paternal lineal ancestry
and to give notice as required.
If inquiry by the court or the Department does not result in information that
triggers the requirement to give notice to a tribe and the Bureau of Indian Affairs (BIA)
as set forth in sections 224.2 and 224.3, the juvenile court is to reinstate forthwith the
order terminating parental rights.
If inquiry does result in information that triggers notice to a tribe and the BIA, and
those entities do not respond, or the Department receives responses that the child is not an
Indian child, the juvenile court must immediately reinstate the order terminating parental
rights. If, however, any tribe or the BIA determines the child is an Indian child, the
juvenile court must conduct a new section 366.26 permanent plan selection hearing in
accordance with ICWA and California’s applicable ICWA-implementing statutes and
rules.
7 The clerk of this court is directed to issue the remittitur immediately. (Rule
8.272(c)(1).)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
We concur:
CODRINGTON J.
FIELDS J.