Filed 8/27/21 In re J.A. CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re J.A., a Person Coming Under D078876
the Juvenile Court Law.
SAN DIEGO COUNTY HEALTH (San Diego County
AND HUMAN SERVICES Super. Ct. No. J519822B)
AGENCY,
Plaintiff and Respondent,
v.
A.A.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Marian F. Gaston, Judge. Conditionally reversed and remanded with
directions.
Marisa L. Dersey Conroy, under appointment by the Court of Appeal,
for Defendant and Appellant.
Lonnie J. Eldridge, County Counsel, Caitlin E. Rae, Chief Deputy
County Counsel, and Lisa M. Maldonado, Deputy County Counsel, for
Plaintiff and Respondent.
A.A. (Mother) appeals from an order terminating her parental rights to
her child, J.A., pursuant to Welfare and Institutions Code section 366.26.
A.A. contends the juvenile court erroneously found the Indian Child Welfare
Act (ICWA; 25 U.S.C. § 1901 et seq.) did not apply. Counsel for Mother and
the San Diego County Health and Human Services Agency (the Agency,
collectively the parties) have conferred and agree that the Agency’s
investigation under the ICWA was inadequate. The parties have filed a joint
stipulation seeking a limited reversal and remand with directions to the
Agency and the juvenile court to ensure compliance with the ICWA. We
accept the stipulation and conditionally reverse the order terminating
parental rights.
DISCUSSION
Mother submitted an ICWA-020 form in October 2019 indicating that
she had no Indian ancestry. Father then submitted an ICWA-020 form in
November 2019 indicating that he, too, did not have Indian ancestry. On
February 6, 2020, the juvenile court held that reasonable inquiry had been
made to determine whether J.A. is an Indian Child and found that it had
reason to know that J.A. is not an Indian child.
On or around February 2021, the Agency learned that the paternal
grandmother was claiming Native American heritage with the Cherokee
Nation. When Father was asked about this, he denied such heritage and
stated that, if there was any Indian ancestry, it would be “little to none.”
There is no indication in the record that the Agency conducted any further
inquiry.
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At the contested hearing in March 2021, the Agency informed the
juvenile court about the paternal grandmother’s claim of Indian heritage and
stated that it “has since conducted further investigation and has found that
there is no further information that would lead the court to believe ICWA
would apply.” Based thereon, the juvenile court confirmed its previous
finding that the ICWA does not apply “as there is no reason to believe that
[J.A.] may be an Indian child.”
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).)
The present case involves reversible error because the parties agree,
and we concur, that the Agency failed to comply with the ICWA’s inquiry
requirement and related California provisions. (Cal. Rules of Court, rule
5.481(a)(4); Welf. & Inst. Code, § 224.1 et seq.) Because this case would be
subject to reversal to permit compliance with the ICWA and corresponding
California statutes and rules absent the parties’ stipulation, a stipulated
remand advances the interests identified by Code of Civil Procedure section
128, subdivision (a)(8). (See In re Rashad H. (2000) 78 Cal.App.4th 376,
379–382.)
DISPOSITION
The March 18, 2021 order terminating parental rights under Welfare
and Institutions Code section 366.26 is conditionally reversed and the matter
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is remanded with directions for the juvenile court to order the Agency to
make a proper inquiry into possible Indian ancestry in J.A.’s paternal lineage
to ensure compliance with the ICWA and related state statutes and rules. If,
after further inquiry, the Agency obtains information showing a reason to
know that J.A. is an Indian child, the juvenile court must provide notice in
accordance with ICWA. If the juvenile court finds that J.A. is an Indian
child, it shall proceed in conformity with the ICWA. If the court finds that
J.A. is not an Indian child, the order terminating parental rights shall be
reinstated. In all other respects, the order is affirmed. The remittitur shall
issue forthwith.
HUFFMAN, Acting P. J.
WE CONCUR:
IRION, J.
GUERRERO, J.
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