Filed 8/12/22 In re D.R. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of the County of Los Angeles, Stacy Wiese, Judge. Conditionally reversed and remanded with directions.

Janelle B. Price, under appointment by the Court of Appeal, for Defendant and Appellant.

Dawyn R. Harrison, Acting County Counsel, and Kim Nemoy, Assistant County Counsel, for Plaintiff and Respondent.

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J.R. (father) appeals from the juvenile court’s order terminating his parental rights to D.R. (the child) pursuant to Welfare and Institutions Code section 366.26,[1] arguing that the order should be conditionally reversed and remanded for compliance with the initial inquiry requirements of the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) and related California statutes (§ 224 et seq.). No interested party filed a respondent’s brief; instead, counsel for father, the child, and the Los Angeles County Department of Children and Family Services (the Department) filed a joint application and stipulation for conditional affirmance and remand to the court for compliance with ICWA and the issuance of an immediate remittitur.

This case involves reversible error because the parties agree, and we concur, that the Department failed to comply with the initial inquiry requirements of ICWA and related California provisions. (In re H.V. (2022) 75 Cal.App.5th 433, 438; In re Charles W. (2021) 66 Cal.App.5th 483, 489.) And, after reviewing the entire record, we find that the statutory requirements set forth at Code of Civil Procedure section 128, subdivision (a)(8) for a stipulated reversal have been satisfied here. (In re Rashad H. (2000) 78 Cal.App.4th 376, 379–382.)

DISPOSITION

The juvenile court’s order terminating father’s parental rights under section 366.26 is conditionally reversed and remanded for proceedings required by this opinion. The court shall order the Department to make reasonable efforts to interview available maternal and paternal family members about the possibility of the parents’ Indian ancestry and to report on the results of the Department’s investigation. Based on the information reported, if the court determines that no additional inquiry or notice to tribes is necessary, the order terminating father’s parental rights is to be reinstated. If additional inquiry or notice is warranted, the court shall make all necessary orders to ensure compliance with ICWA and related California law.

The remittitur shall issue forthwith.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

I concur:

RUBIN, P. J.

In re D.R.

B318756

BAKER, J., Dissenting

I would reject the parties’ stipulation to remand the matter to the juvenile court. This court cannot properly make the findings required by Code of Civil Procedure section 128, subdivision (a)(8). (See In re Rashad H. (2000) 78 Cal.App.4th 376, 380 [“[T]here could be an adverse effect on the adoptive parents’ rights if there were a stipulated reversal of a Welfare and Institutions Code section 366.26 parental termination rights order. A stipulated reversal could further delay the conclusion of the adoption process”].) There is a good case to be made, if this court invited further merits briefing, that substantial evidence supports the juvenile court’s Indian Child Welfare Act determination. (In re H.V. (2022) 75 Cal.App.5th 433, 441 (dis. opn. of Baker, J.); see also In re Ezequiel G. (July 29, 2022, B314432) ___ Cal.App.5th ___; In re J.S. (2021) 62 Cal.App.5th 678, 688 [applying substantial evidence standard of review].)

BAKER, J.

[1] All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.