Opinion
H046786
11-14-2019
In re T.M.E., et al., Persons Coming Under the Juvenile Court Law. MONTEREY COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. C.E., Defendant and Appellant; J.M., Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. Nos. 17JD000167, 17JD000168)
Appellant C.E., presumed father of T.M.E. and T.E., appeals an order terminating his parental rights (Order), pursuant to Welfare and Institutions Code section 366.26 (section 366.26). On appeal he claims that the Monterey County Department of Social & Employment Services (Department) failed to comply with the Indian Child Welfare Act (ICWA). The parties jointly seek a limited reversal of the Order, and request that the case be remanded to the trial court to comply with ICWA. We grant the parties' joint application for reversal, reverse the judgment and remand the matter to the juvenile court for further proceedings.
I. PROCEDURAL BACKGROUND
At the outset of the dependency proceedings both parents informed the Department that they may have Indian ancestry. The trial court found that ICWA may apply. The Department sent two rounds of notices to multiple tribes and the Bureau of Indian Affairs, but mother disputed that all the relevant tribes had been notified in a timely manner. One tribe had been notified less than eight weeks before the section 366.26 hearing and had not responded by the time of the hearing. The trial court found that notices had been timely and appropriate, and that ICWA did not apply. Father filed a timely notice of appeal from the Order.
After Father filed an opening brief on appeal, instead of filing a respondent's brief conceding the issue on appeal, respondent filed an Application and Stipulation for Reversal of Judgment. The reason that the parties seek a stipulated reversal, as outlined in the application, is that all parties will benefit from an expeditious resolution, without the need to pursue an appellate remedy.
II. DISCUSSION
The parties' Application and Stipulation for Reversal of Judgment supports the conclusion that a stipulated reversal is appropriate under the facts of this case and the law. (See Code Civ. Proc., § 128, subd. (a)(8).) For the reasons stated in the motion for stipulated for reversal, the court finds that there is no possibility that the interests of nonparties or the public will be adversely affected by the reversal.
This court further finds that the parties' grounds for requesting reversal are reasonable, and in the interests of justice because a stipulated reversal will avoid further delay of finality in the dependency action for the child. These grounds outweigh the erosion of public trust that may result from the nullification of a judgment and outweigh the risk that the availability of a stipulated reversal will reduce the incentive for pretrial settlement.
III. DISPOSITION
The judgment is reversed pursuant to the stipulation of the parties. The juvenile court is directed to order the Department to make proper inquiry in compliance with the notice provisions of ICWA. If after proper inquiry and notice, a tribe determines that the minors are Indian children as defined by ICWA, the juvenile court is ordered to conduct a new section 366.26 hearing in conformity with all provisions of ICWA. If no response is received or the tribes determine that the children are not Indian children, the juvenile court shall reinstate all previous findings and orders. The remittitur shall issue forthwith.
/s/_________
Greenwood, P.J. WE CONCUR: /s/_________
Grover, J. /s/_________
Danner, J.