Opinion
D042347.
10-23-2003
In re B. K., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. M. H., Defendant and Appellant.
M. H. (Father) appeals the judgment terminating his parental rights over B. K., contending that there was insufficient evidence to support the finding that B. K. was adoptable and that termination could substantially interfere with B. K.s relationship with his half brother, Anthony S. Fathers counsel, B. K.s counsel, and counsel for respondent the San Diego County Health and Human Services Agency (the Agency) have filed a stipulation for reversal of the juvenile courts judgment and remand for a new Welfare and Institutions Code section 366.26 hearing, and immediate issuance of the remittitur. We accept the stipulation (Code Civ. Proc., § 128, subd. (a)(8); In re Rashad H. (2000) 78 Cal.App.4th 376) and reverse.
Further statutory references are to the Welfare and Institutions Code unless otherwise specified.
BACKGROUND
In February 2000, when B. K. was five years old, the Agency filed a dependency petition because his mother (Mother) abused drugs and his fathers whereabouts were unknown. At the time the petition was filed, M. H. was not named as an alleged father. His existence came to light several months later, and in November 2000, the juvenile court adjudged him to be B. K.s father. His contact with the Agency was sporadic, however, and his contact with B. K. was minimal.
Father was incarcerated from January 9, 2002, until June 3, 2003.
B. K. was detained in Polinsky Childrens Center with Anthony and both were subsequently placed in the same foster home. In February 2002, the Agency filed a section 366.26 report, recommending that adoption be identified as the permanent placement goal and that termination of parental rights be deferred for 180 days. The report stated that the children wanted to live together, and while they were adoptable, due to their ages and race an adoptive family had not been identified. On February 6, the court identified adoption as the permanent goal, deferred termination of parental rights, and set a section 366.26 hearing for August 7.
In August 2002, the Agency filed a second section 366.26 report, recommending that termination of parental rights be deferred for 90 days. The report stated that a prospective adoptive home had not been found. A Tennessee family that was possibly related to Anthony wanted to adopt the children, but DNA test results had not been received and the home had not been evaluated. On August 7, the court continued the section 366.26 hearing to November 6. In October, the Agency filed an addendum report stating that the DNA tests showed that the Tennessee family was not related to Anthony, the family had decided not to pursue adoption, and that an adoptive family had not been found. The Agency recommended a permanent plan of long-term foster care. On November 6, the court continued the section 366.26 hearing to May 7, 2003.
In January 2003, the children were moved to a new foster home, at the former foster mothers request, because she had difficulties with Anthonys behavior and she and her husband wanted to retire from foster care. After the move, B. K. regressed rapidly. He was moved to a group home because he had become aggressive and defiant.
In April 2003, an approved adoptive family for both children was identified, and they were moved into that home. In May, the Agency filed a third section 366.26 report, recommending that parental rights be terminated and a permanent plan of adoption be set. The report characterized B. K. and Anthony as hard to place, but stated that they had made a successful transition into their prospective adoptive home. On May 7, the court continued the section 366.26 hearing to June 6, at B. K.s counsels request. On June 6, the court set a contested hearing for June 18. On June 18, the court terminated parental rights and referred B. K. and Anthony for adoptive placement.
According to the parties stipulation, after the judgment, B. K.s adoptive placement failed and he was moved to Polinsky Childrens Center; it was uncertain how long it would take him to stabilize and how long it would take to find another prospective adoptive home. He was not presently adoptable.
DISCUSSION
"An appellate court shall not reverse or vacate a duly entered judgment upon an agreement or stipulation of the parties unless the court finds 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. [& para;] (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).)
Our independent review of the record, summarized above, leads us to conclude that we should accept the stipulation for reversal. First, there is no reasonable possibility that reversal will adversely affect the interests of nonparties. B. K.s former prospective adoptive parents do not seek his return to their home. Mother did not appeal termination of her parental rights, and that termination is now final. Because B. K. has been removed from the prospective adoptive home, Anthony has already lost the chance to be adopted with him. Nor is there a reasonable possibility that reversal will adversely affect the interests of the public. This is not a public matter or one affecting the public.
The stipulation for reversal thus does not affect her parental rights, which remain terminated. (Los Angeles County Dept. of Children & Fam. Services v. Superior Court (2000) 83 Cal.App.4th 947, 949.)
Second, the reason the parties request reversal is that there has been a change in circumstances. The failure of B. K.s adoptive placement. In such a situation, reversal of the judgment terminating parental rights will not erode public trust. On the contrary, public trust in the courts and their judgments will be advanced by knowing that the Agency, counsel, and the courts will act promptly and reasonably to address a childs changed circumstances. (Cf. In re Rashad H., supra, 78 Cal.App.4th at pp. 381-382.) Nor will reversal run the risk of reducing any incentive for pretrial settlement as the current situation, B. K.s unadoptability, did not exist at the time that there might have been such a settlement.
DISPOSITION
The judgment terminating Fathers parental rights is reversed. This matter is remanded to the juvenile court for a new section 366.26 hearing to determine a permanent plan for B. K.. The remittitur is to issue forthwith.
WE CONCUR: McCONNELL, P. J., and HUFFMAN, J.