In re N.B. CA2/5 ( 2021 )

Filed 5/18/21 In re N.B. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re N.B., a Person Coming Under B309191
the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. DK08623)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
CRYSTAL B.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los
Angeles County, Nichelle Blackwell, Judge Pro Tempore.
Conditionally reversed and remanded, with directions.
Joseph T. Tavano, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, Brian Mahler, Deputy County
Counsel, for Plaintiff and Respondent.
Children’s Law Center, Nancy Sarinana, for Minor.
__________________________
Crystal B. (mother) appeals from orders denying her
petition under Welfare and Institutions Code section 388
and terminating parental rights to her minor child N.B.
(minor), pursuant to section 366.26.1 Counsel for mother,
minor, and the Los Angeles County Department of Children
and Family Services (the Department) have filed a joint
application and stipulation seeking a limited reversal and
remand with directions to the Department and the juvenile
court to ensure compliance with the Indian Child Welfare
Act (ICWA) (25 U.S.C. § 1901 et seq.).
Finding that the requirements of Code of Civil
Procedure section 128, subdivision (a)(8), are satisfied, we
1 Further statutory references are to the Welfare and
Institutions Code unless stated otherwise.
2
accept the stipulation, conditionally reverse the order
terminating parental rights, and remand to the juvenile
court to permit the parties to comply with the terms of their
stipulation and to determine ICWA compliance.
The Department agrees with mother’s contention on appeal
Mother’s sole argument on appeal is that the
Department did not comply with its duties of further inquiry
and notice under ICWA and related California statutes. The
Department agrees that it did not interview known maternal
relatives following a December 9, 2014 detention hearing,
and it did not provide requested information after the
Choctaw Nation of Oklahoma responded to an ICWA notice.
We agree that there is no evidence that the Department
conducted the further inquiry required under ICWA or sent
requested information to the Choctaw Nation of Oklahoma.
The parties’ stipulation meets statutory requirements
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
3
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).)
Here, the parties have stipulated that upon remand,
1. The Department shall make all efforts to interview
Mother, maternal aunt Christen B., maternal aunt
Shondaleh B., and the maternal grandfather Eddie B. to
obtain identifying information about N.B.’s possible Indian
status. This information is to include the names, current
and previous addresses, birthdates, birthplaces, and, if
deceased, the dates and places of death of the following
individuals: N.B., Mother, the maternal grandmother (Sonia
B.), the maternal great-grandmother (Ruth H.), and the
maternal great-grandfather (Bobby E.). The Department is
only required to make three attempts to reach and interview
the referenced family members if earlier attempts are
unsuccessful.
2. The Department shall contact the four identified
tribes—the Blackfeet Tribe of Montana, the Choctaw Nation
4
of Oklahoma, the Jena Band of Choctaw, and the Mississippi
Band of Choctaw Indians—and provide the tribes with the
information obtained from the referenced family members to
learn whether N.B. is a member of a tribe or eligible for
membership in a tribe. This contact between the
Department and the tribes may be in the form of telephone
and/or email communications.
3. The Department shall document its further inquiry
investigation, including its efforts to interview the
referenced family members, the information obtained from
those interviews that do occur, its contact with the four
identified tribes, and the information provided by the tribes,
and provide said documentation and the results of its family
members interviews and contact with the tribes to the
juvenile court.
4. At a noticed hearing with reappointed counsel for
Mother, the juvenile court shall review the adequacy of the
Department’s further inquiry investigation and the
information provided by the tribes.
5. If the juvenile court finds the Department’s further
inquiry investigation was proper and, based on the
information provided by the tribes, there is no “reason to
know” N.B. is an “Indian child” as those terms were defined
5
at the time of the section 366.26 hearing (see 25 U.S.C.
§ 1912(a); §§ 224.2, subd. (e), 224.3, subd. (a)), the court shall
reinstate the order terminating parental rights.
6. If the juvenile court finds the Department’s further
inquiry investigation was proper and, based on the
information provided by the tribes, there is “reason to know”
N.B. is an “Indian child” as those terms were defined at the
time of the section 366.26 hearing (see 25 U.S.C. § 1912(a);
§§ 224.2, subd. (e), 224.3, subd. (a)), the court shall proceed
in compliance with ICWA, to include the Department
providing formal ICWA notice to the tribe(s), the Secretary
of the Interior, and the Bureau of Indian Affairs containing
the information that the Department obtained from its
interviews, the Department filing all ICWA notice forms,
certified return receipts, and tribal/agency responses in the
court, and the court holding a noticed hearing with
reappointed counsel for Mother to determine the ICWA’s
applicability.
We conclude that a reversal based upon the above
stipulation meets the requirements of section 128,
subdivision (a)(8). First, we find “no reasonable possibility
that the interests of nonparties or the public will be
adversely affected by the reversal.” (Code Civ. Proc., § 128,
6
subd. (a)(8)(A).) The two groups of nonparties who could
potentially be adversely affected by a stipulated reversal are
prospective adoptive parents and Indian tribes. There is no
reasonable possibility that the interests of either group will
be adversely affected, because the stipulated reversal serves
to expedite the Department’s compliance with its statutory
obligations under ICWA. (See, e.g., In re Rashad H. (2000)
78 Cal. App. 4th 376, 381 (Rashad H.); cf. In re B.D. (2019) 35
Cal. App. 5th 803, 820 [denying request for stipulated
reversal where agency acknowledged failure to alert court
and parties to problems in minor’s prospective adoptive
home].)
Second, the parties’ reasons for requesting a limited
reversal with directions outweigh any erosion of public trust
that may result from the reversal, as well as the risk of
reducing any incentive for pretrial settlement. The reason
the parties are requesting reversal is to ensure compliance
with ICWA. The requested reversal therefore enhances
public trust, rather than eroding it. In terms of the risk of
reducing incentives for pretrial settlement, “[t]here is no
evidence that settlement is an option in connection with the
Welfare and Institutions Code section 366.26 issues which
will be addressed upon issuance of the remittitur. Moreover,
7
the parties are in agreement that the case will be reversed
anyway; so there is no risk that a stipulated reversal will
reduce the incentive for settlement prior to the Welfare and
Institutions Code section 366.26 hearing.” (Rashad H.,
supra, 78 Cal.App.4th at p. 381.)
8
DISPOSITION
The order terminating parental rights under Welfare
and Institutions Code section 366.26 is conditionally
reversed, and remanded for the limited purpose of the
juvenile court ensuring compliance with the Indian Child
Welfare Act (25 U.S.C. § 1901 et seq.) and related state
statutes (Welf. & Inst. Code, § 224.1 et seq.). If the juvenile
court determines there is no reason to know N.B. is an
Indian child, then it shall reinstate the order terminating
parental rights. The remittitur shall issue forthwith.
MOOR, J.
We concur:
RUBIN, P.J.
BAKER, J.
9