In re A.S. CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of Imperial County · No. JJP001423
- Trial judge
- Michael Domenzain
- Outcome
- reversed — Conditionally reversed and remanded.
- Area
- dependency
- Panel
- Laurence D. Rubin (author), Buchanan, Bermudez
Analysis
The trial court terminated the mother's parental rights without making the affirmative ICWA finding required by statute after the Department failed to conduct a proper inquiry into the child's potential Native American ancestry. The appellate court conditionally reversed the order, construing the parties' stipulation as a concession by the Department, and remanded the case for a proper ICWA inquiry.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Order terminating parental rights under Welfare and Institutions Code section 366.26“Accordingly, we conditionally reverse the order and remand the matter to complete the ICWA inquiry.” | unclear | error | agree with court The appellate court found the Department's ICWA investigation inadequate, specifically noting the failure to follow up on prior disclosures of Native American heritage and the lack of an affirmative finding under section 224.2, subdivision (i)(2). The court treated the Department's agreement with the mother's argument as a concession, which is a valid procedural mechanism to establish error on appeal when the record supports it. |
Authorities
- relied: In re Rashad H. (2000) 78 Cal.App.4th 376 — A stipulated reversal of a section 366.26 order may adversely affect the rights of nonparty adoptive parents, potentially violating Code of Civil Procedure section 128, subdivision (a)(8)(A).
The appellate opinion: sound — The opinion correctly identifies that the Department's investigation was insufficient given the specific disclosures made by family members regarding the paternal great-grandmother's ancestry. It appropriately applies the standard for stipulated reversal under Code of Civil Procedure section 128, subdivision (a)(8), finding that the rights of the nonparty adoptive parent would be adversely affected, thus preventing a pure stipulated reversal but allowing the court to treat the stipulation as a concession to proceed with the appeal on the merits.
How this analysis was made · dispute it
unusual dispositionThe Imperial County juvenile court terminated Mother's parental rights to A.S. at a January 2026 section 366.26 hearing without making the affirmative ICWA finding required by Welfare and Institutions Code section 224.2, subdivision (i)(2), after a Department inquiry that never followed up on repeated reports that the paternal great-grandmother was Native American, omitted her name from tribal contacts, and failed to ask several available paternal relatives about ancestry. On appeal the parties jointly moved for stipulated conditional reversal under Code of Civil Procedure section 128, subdivision (a)(8); the Court of Appeal held that provision was not satisfied because the nonparty grandmother is the prospective adoptive parent, but treated the stipulation as a concession, reviewed the record, agreed the ICWA inquiry was inadequate, and conditionally reversed and remanded for a proper inquiry with directions to reinstate the order if no tribe claims A.S.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Termination of parental rights under section 366.26 without making the affirmative ICWA applicability finding required by section 224.2, subdivision (i)(2).“But, the court did not make the affirmative ICWA finding section 224.2, subdivision (i)(2) requires.” | unclear | error (procedure) | agree with court Section 224.2, subdivision (i)(2) requires a finding that ICWA does not apply, supported by a proper and adequate inquiry and due diligence, before the court may proceed as if the child is not an Indian child. The record recited in the opinion shows no such finding was made at the January 2026 hearing, and the court itself had earlier declined to make ICWA findings for lack of information. The appellate court's conclusion that this was error is supported by the statute, though it states no standard of review and offers only a conclusory merits discussion. |
Implicit acceptance of the Department's conclusion that it had no reason to believe A.S. was an Indian child, despite an inadequate inquiry into reported paternal Native American ancestry.“we reviewed the record in this matter and agree with the Department’s position regarding the inadequacy of its ICWA investigation.” | unclear | error (fact finding unsupported) | agree with court The opinion recites that a grandmother and an aunt repeatedly reported the paternal great-grandmother was Native American and that the paternal grandfather might have tribal ties, yet the Department omitted the great-grandmother's name from tribal contacts, listed the grandfather incompletely, never asked two uncles, two aunts, or a cousin who appeared at hearings, and made only one call to a disconnected number for the grandfather. Under section 224.2, subdivisions (b) and (e), that information triggered a duty of further inquiry including interviews of extended family members, so the Department's conclusion that ICWA did not apply lacked an adequate factual basis. The appellate court reached the right conclusion but did so in a single sentence without citing the extended-inquiry provisions or the governing Supreme Court authority on remedy. |
Authorities
- relied: In re Rashad H. (2000) 78 Cal.App.4th 376 — In a typical section 366.26 appeal the child is already living with prospective adoptive parents, so a stipulated reversal of a termination order could adversely affect those nonparties' rights for purposes of Code of Civil Procedure section 128, subdivision (a)(8)(A).
The appellate opinion: sound with gaps — The court reached a defensible result: it correctly refused a stipulated reversal under Code of Civil Procedure section 128, subdivision (a)(8) given the grandmother's status as prospective adoptive parent, and the recited record plainly shows an inadequate ICWA inquiry and a missing section 224.2, subdivision (i)(2) finding. But the merits analysis is a single conclusory sentence that cites no ICWA case law, omits the controlling Supreme Court decision in In re Dezi C. on the error and the conditional-reversal remedy, states no standard of review, and does not engage the extended-inquiry duties under section 224.2, subdivision (e) that the facts triggered.
Opinion
Filed 8/17/26 In re A.S. CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re A.S., a Person Coming Under the Juvenile Court Law.
IMPERIAL COUNTY DEPARTMENT D087600 OF SOCIAL SERVICES,
Plaintiff and Respondent, (Super. Ct. No. JJP001423)
v. P.J., Defendant and Appellant.
APPEAL from an order of the Superior Court of Imperial County, Michael Domenzain, Judge. Conditionally reversed and remanded. LaneLaw and Cindy K. Lane, under appointment by the Court of Appeal, for Defendant and Appellant. Kelly Ranasinghe, Deputy County Counsel, for Plaintiff and Respondent. P.J. (Mother) filed a notice of appeal after her parental rights were terminated. (Welf. & Inst. Code, § 366.26; all undesignated statutory references are to this code.) In her opening brief, she argued the Imperial County Department of Social Services (the Department) failed to comply with its duties under the Indian Child Welfare Act (ICWA) (25 U.S.C. ch. 21, § 1901 et seq.). The Department agrees. The parties filed a joint stipulation for conditional reversal and limited remand. (See Code Civ. Proc., § 128, subd. (a)(8).) While we are not persuaded that Code of Civil Procedure section 128, subdivision (a)(8) is satisfied, we construe the stipulation as the Department’s concession on the issue presented by Mother. We have reviewed the record and agree a concession is appropriate. Accordingly, we conditionally reverse the order and remand the matter to complete the ICWA inquiry.
BACKGROUND A. General Background In July 2024, the Department filed a petition after receiving a referral alleging general neglect of A.S. The referral stated Mother tested positive for methamphetamine following her arrest on charges of harboring undocumented individuals at the family home. At the house, authorities also found drug paraphernalia and a known drug dealer. The Department’s petition alleged A.S. came within section 300, subdivision (b), based on Mother’s criminal activity, ongoing drug use, and unresolved substance abuse history. It also alleged A.S.’s father tested positive for fentanyl and marijuana.1 1 An interview with Mother eliminated a potential second alleged father from this case. Mother explained DNA testing showed R.O. was A.S.’s 2 The court found the allegations true at the contested jurisdiction hearing in October 2024. The court bypassed reunification services for Mother and, although it ordered services for father, it terminated them in May 2025 after he declined services and made no progress on his case plan. At the January 2026 section 366.26 hearing, the court terminated parental rights and ordered adoption as A.S.’s permanent plan. B. ICWA Mother, the father, the paternal grandmother (grandmother), and a paternal aunt initially denied Native American ancestry. Both parents confirmed their denials on ICWA-020 forms. In August 2024, the grandmother disclosed that A.S.’s paternal great- grandmother had claimed to be a Native American born in Texas, though she did not know the tribe and did not believe any family member was registered with a tribe or had lived on a reservation. At the August 2024 hearing, a paternal aunt told the court that the paternal grandfather might have tribal ties. The Department contacted tribes but omitted the paternal great- grandmother’s name and listed the paternal grandfather by an incomplete name. Three paternal aunts attended the October 2024 contested jurisdiction hearing. When asked by the court, one aunt again reported that the paternal great-grandmother was Native American, though she did not know from which tribe. The court did not make a separate inquiry of the other aunts, found insufficient information to identify the paternal great-grandmother’s tribe, and made no ICWA findings.
biological parent. In any event, on June 3, 2024, the court terminated the second alleged father’s parental rights. He is not a party to this appeal.
3 The Department’s reports repeatedly noted ICWA might apply but reflected no new inquiry beyond periodically re-asking Mother, the father, and the grandmother about tribal connections; each time they denied Native American ancestry or provided no new information. Two uncles attended hearings in 2025 but were not asked about Native American heritage. It was not until the Department’s section 366.26 report filed in August 2025 that it concluded, without explanation, that ICWA did not apply. At a December 2025 hearing, the grandmother stated that paternal great-grandmother was Native American from Texas. A paternal cousin appeared but was not asked about ancestry. The Department acknowledged it had not followed up on prior Native American heritage information, and the court continued the hearing for further inquiry. The Department’s further investigation consisted of additional conversations with the grandmother that yielded no new information. However, the Department found an online obituary for the paternal great- grandmother but it lacked any mention of Native American ancestry. The Department also made a single phone call to an out-of-service number the grandmother had for the paternal grandfather.2 The Department concluded it had no reason to believe A.S. had Native American ancestry. As stated earlier, at the January 2026 hearing, the court terminated parental rights. But, the court did not make the affirmative ICWA finding section 224.2, subdivision (i)(2) requires. After Mother filed her opening appellate brief, the parties filed a joint motion to conditionally reverse the order and remand the matter to the 2 Grandmother stated she separated from paternal grandfather in August 1993 and had not been in touch with him since. She gave an approximate location in Calexico of where she believed paternal grandfather might live. 4 juvenile court pursuant to Code of Civil Procedure section 128. The motion explained the parties agreed the Department did not conduct a proper inquiry under ICWA and its California counterpart, the California Indian Child Welfare Act (Welf. & Inst. Code, § 224.2, et seq.). DISCUSSION We may not reverse a judgment upon stipulation of the parties unless we find: (1) “There is no reasonable possibility that the interests of nonparties or the public will be adversely affected by the reversal”; and (2) “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)(A), (B).) In this case, these requirements are not satisfied in at least one aspect. Here, there is a reasonable probability the interest of a nonparty or the public will be adversely affected by the conditional reversal. (Code Civ. Proc., § 128, subd. (a)(8)(A).) Grandmother, who is not a party to this appeal, is A.S.’s prospective adoptive parent. A stipulated reversal would negatively impact her rights since it would delay A.S.’s adoption by her. “[T]he typical Welfare and Institutions Code section 366.26 appeal involves a minor already living with the adoptive parents. Under those circumstances, there 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.” (In re Rashad H. (2000) 78 Cal.App.4th 376, 380.) We find in this case delaying grandmother’s adoption of A.S. would violate Code of Civil Procedure section 128, subd. (a)(8)(A) and, therefore, the parties’ agreement does not meet the statutory requirements necessary for us to reverse a judgment by stipulation.
5 However, we read the stipulation as the Department’s concession to Mother’s argument. Considering the briefing in that posture, we reviewed the record in this matter and agree with the Department’s position regarding the inadequacy of its ICWA investigation. DISPOSITION The order entered by the juvenile court on January 28, 2026, made pursuant to a hearing under section 366.26, is conditionally reversed. The matter is remanded to the juvenile court for the limited purpose of conducting the further inquiry required by ICWA and the California Indian Child Welfare Act. After proper inquiry has been completed and any notice requirements are met, if any tribes claim A.S. is a Native American child, the court shall proceed in conformity with ICWA and the parallel California statute. If not, the court shall reinstate the order terminating parental rights. Remittitur shall issue immediately.
RUBIN, J.
WE CONCUR:
BUCHANAN, Acting P. J.
BERMÚDEZ, J.
Cites, in this corpus
- In Re Rashad H. B133778 · 2000-03-02