Filed 8/9/22 In re E.V. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re E.V., a Person Coming Under the Juvenile
Court Law.
STANISLAUS COUNTY COMMUNITY F084230
SERVICES AGENCY,
(Super. Ct. No. JVDP-21-000057)
Plaintiff and Respondent,
v. OPINION
D.B.,
Defendant and Appellant.
THE COURT *
APPEAL from an order of the Superior Court of Stanislaus County. Annette
Rees, Judge.
Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E. Boze, County Counsel, and Maria Elena Ratliff, Deputy County
Counsel, for Plaintiff and Respondent.
-ooOoo-
* Before Franson, Acting P. J., Smith, J. and Snauffer, J.
D.B. (mother) appeals the juvenile court’s order terminating her parental rights
over her son E.V. (born July 2019) pursuant to Welfare and Institutions Code
section 366.26.1 Her sole contention on appeal is that the juvenile court and the
Stanislaus County Community Services Agency (agency) failed to comply with the
Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and related California law.
The agency concedes error and the parties have stipulated to an immediate limited
remand for the purpose of complying with the inquiry provisions of ICWA. Accordingly,
we conditionally affirm the juvenile court’s order but remand for the limited purpose of
ensuring compliance with ICWA and related California law.
FACTUAL AND PROCEDURAL BACKGROUND 2
On March 23, 2021, the agency filed a petition on behalf of E.V. pursuant to
section 300, subdivision (b)(1), alleging he was at substantial risk of suffering serious
physical harm or illness due to the parents’ substance abuse problems. Eliseo V. (father)
was listed as E.V.’s presumed father. The petition included an Indian Child Inquiry
Attachment (ICWA-010(A)) form indicating the social worker asked mother and father
about Indian ancestry and they gave him no reason to believe E.V. was or could be an
Indian child. The parents also completed Parental Notification of Indian Status
(ICWA-020) forms indicating they did not have Indian ancestry.
The detention report stated ICWA may not apply as both parents reported they did
not have Indian ancestry.
On March 24, 2021, at the detention hearing, the juvenile court stated it received
the parents’ ICWA-020 forms and found ICWA did not apply. All subsequent reports
1 All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
2 Because the sole issue on appeal concerns ICWA, we restrict our facts to those
bearing on that issue.
2.
prepared by the agency noted that ICWA did not apply based on the juvenile court
finding at the detention hearing.
On May 4, 2021, at the combined jurisdictional/dispositional hearing, the juvenile
court found ICWA did not apply.
On October 27, 2021, at the six-month review hearing, the juvenile court found
ICWA did not apply.
On December 21, 2021, at the contested six-month review hearing, the juvenile
court found ICWA did not apply.
On April 12, 2022, at the section 366.26 hearing, the juvenile court found ICWA
did not apply.
On April 12, 2022, the juvenile court terminated mother’s parental rights.
Throughout the proceedings the agency had contact with various extended family
members including the maternal grandmother, maternal great-grandmother, and E.V.’s
care providers who were maternal relatives.
On April 15, 2022, mother filed a notice of appeal.
STIPULATION
In the present case, the agency concedes ICWA error and the parties have
stipulated to a limited remand. A stipulated reversal under Code of Civil Procedure
section 128, subdivision (a)(8), is permissible in a dependency case when the parties
agree that reversible error occurred, and the stipulated reversal will expedite the final
resolution of the case on the merits. (In re Rashad H. (2000) 78 Cal.App.4th 376, 380–
382.) In the stipulation, the parties agree the agency failed to comply with its statutory
duty of inquiry regarding E.V.’s possible Indian ancestry under ICWA and that this court
should order a limited remand, with instructions that the agency complete further inquiry
under ICWA and provide notice, if necessary, to the relevant tribes. (See In re
Francisco W. (2006) 139 Cal.App.4th 695, 704–710 [limited remand for compliance with
3.
duty of notice under ICWA is proper remedy].) Reversal is therefore appropriate given
the agency’s failure to comply with its duties under ICWA.
DISPOSITION
The juvenile court’s order terminating parental rights is conditionally affirmed.
We remand for the agency and the juvenile court to comply with the inquiry and notice
provisions of ICWA and California law. If the court finds the child is an Indian child, it
shall conduct a new section 366.26 hearing, as well as all further proceedings, in
compliance with ICWA and related California law. If not, the court’s original
section 366.26 order will remain in effect.
4.