Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. 189062
Pollak, J.
This appeal is the fourth by mother Donnelle M. in dependency proceedings regarding her now 16-year-old daughter Kiana J. In March 2005, we affirmed a jurisdictional order finding that Kiana came within the meaning of Welfare and Institutions Code section 300, subdivision (b) and a dispositional order placing her in a foster home. (In re Kiana J. (March 22, 2005, A106293) [nonpub. opn.].) In the following consolidated appeal, we affirmed an order adopting a permanent plan of “placement with a planned permanent living arrangement and a specific goal of a less restrictive foster setting” and an order entered after the first postpermanency planning review hearing. (In re Kiana J. (Aug. 4, 2006, A111760, A112898) [nonpub. opn.].) In that opinion, we observed that there was some indication that the Indian Child Welfare Act (ICWA), 25 United States Code section 1901 et seq., might apply but that the Alameda County Social Services Agency (the department) had not taken any steps to comply with the ICWA notice requirements. (Id. at p. 8.) We affirmed the court’s orders, but remanded the matter “to the juvenile court with directions to direct the department to comply with the notice provisions of the ICWA.” (Id. at p. 9.) Our disposition explained that “[a]fter proper notice under the ICWA, if Kiana is determined to be an Indian child and the ICWA applies to these proceedings, Donnelle may petition the juvenile court to invalidate orders which were entered in violation of title 25 United States Code sections 1911, 1912, and 1913.” (Ibid.)
In the present appeal, Donnelle challenges an order entered following another review hearing held on June 19, 2007, solely on the ground that the department and the court have not complied with the ICWA as previously directed by this court. The department concedes that “the record on appeal does not reflect ICWA notice compliance at the time of the hearing on remand from the previous appeals under consolidated appellate case number A111760, A112898, nor as of the time of the 6/19/2007 post permanent plan review hearing.” The department suggests and “unilaterally agrees” to a conditional reversal in this instance. The department explains that it has not filed a formal motion for approval of a stipulated conditional reversal because it was “unable to reach an agreement as to the form and substance of the motion, nor of the supporting joint declaration which is required under First District Local Rule 4.” Nonetheless, both parties agreed that if after proper ICWA inquiry and notice has been given and the juvenile court determines that the ICWA does not apply, the order would be reinstated. On the other hand, if any tribe determines that the child is an Indian child, within the meaning of the ICWA, the juvenile court would conduct further proceedings in accordance with the ICWA.
Code of Civil Procedure section 128, subdivision (8), directs that “[a]n 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. [¶] (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.” The conditional reversal sought in this case satisfies these requirements. (See In re Rashad H. (2000) 78 Cal.App.4th 376, 379-382.) A stipulated reversal would not adversely affect the rights of any nonparty since Kiana’s permanent plan is long-term foster care rather than adoption. Stipulated reversal, premised on the failure of both the court and the department to make a clear record of ICWA compliance, would not erode public trust in the judiciary process. Finally, in light of the length and stage of these dependency proceedings and the nature of the order being reversed there is no basis to believe that reversal would reduce the incentive for pretrial settlement.
Disposition
The order is reversed pursuant to the implicit stipulation of the parties. If after proper ICWA inquiry and notice has been given, the juvenile court determines that the ICWA does not apply, the order shall be reinstated. If any tribe determines that the child is an Indian child, within the meaning of the ICWA, the juvenile court shall conduct further proceedings in accordance with the ICWA.
The parties may wish to stipulate to shorten the time for finality of this decision and the issuance of the remittitur. (Cal. Rules of Court, rules 8.264 (b)(2)(E), 8.272 (c)(1).)
We concur: McGuiness, P. J. Siggins, J.