In re E.M. CA4/1

California Court of Appeal · D080085 · 2022-05-16 · Unpublished

Proceeding: appeal from an order
Trial court: Superior Court of San Diego County · No. J510365H
Trial judge: Browder A. Willis III
Outcome: reversed — Conditionally reversed and remanded with directions.
Area: dependency
Panel: Richard D. Huffman, Sr. (author), O'Rourke, Cynthia Aaron

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T04:50Z · confidence high

The trial court terminated parental rights and found the Indian Child Welfare Act (ICWA) inapplicable without making a finding that due diligence had been conducted. The Court of Appeal conditionally reversed and remanded the case to ensure compliance with ICWA inquiry requirements, accepting the parties' stipulation that the agency's investigation was inadequate.

Ruling reviewed	Standard	The court	The model
Order terminating parental rights and finding ICWA inapplicable “The parties agree, and we concur, that the Agency did not comply with its initial duty of inquiry in this case by failing to inquire of the child and available extended family members regarding any potential Indian ancestry.”	unclear	error	agree with court agree with court

Authorities

relied: In re Rashad H. (2000) 78 Cal.App.4th 376 — Case supporting the proposition that a stipulated remand advances public interests when the case would otherwise be subject to reversal for ICWA non-compliance.

The appellate opinion: sound — The opinion is sound because it correctly identifies the agency's failure to meet the statutory duty of inquiry under ICWA and California law, and it properly applies the standard for stipulated reversal under Code of Civil Procedure section 128. The court's reliance on the parties' stipulation and the clear statutory requirements provides a solid basis for the conditional reversal and remand.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:30Z · confidence low

The juvenile court terminated the parents' rights to E.M. at a section 366.26 hearing and found, without prejudice, that ICWA did not apply, even though the Agency had not asked the child, paternal grandparents, paternal aunts, or adult step-sisters about Indian ancestry after Father indicated possible heritage. On a joint stipulation of the parents and the Agency, the Court of Appeal conditionally reversed the February 24, 2022 orders and remanded with directions for the Agency to complete its ICWA inquiry and for the juvenile court to hold a compliance hearing, with the orders to be reinstated if no reason to know E.M. is an Indian child emerges.

Ruling reviewed	Standard	The court	The model
Juvenile court's finding that ICWA did not apply, resting on an Agency inquiry that omitted the child and available extended family members “The parties agree, and we concur, that the Agency did not comply with its initial duty of inquiry in this case by failing to inquire of the child and available extended family members regarding any potential Indian ancestry.”	unclear	error (statutory interpretation)	agree with court Section 224.2, subdivision (b) expressly requires inquiry of the child and extended family members, and rule 5.481(a)(1) implements that duty. The record shows the Agency had names and direct contact with paternal relatives and adult step-sisters yet never asked them, and Father's February 2020 statement of possible heritage heightened the need for inquiry. The conclusion of statutory noncompliance follows directly from the text of the statute as applied to the facts recited.
Juvenile court's failure to make the due diligence finding required by section 224.2, subdivision (i)(2) before finding ICWA inapplicable “The record does not show that the juvenile court made this finding.”	unclear	error (procedure)	agree with court Section 224.2, subdivision (i)(2) conditions a finding that ICWA does not apply on a finding of proper and adequate further inquiry and due diligence. The opinion notes the record contains no such finding; given the undisputed gaps in the inquiry, such a finding could not have been supported in any event. The court's observation is correct, though it is dictum alongside the inquiry error.
Order terminating parental rights at the February 24, 2022 section 366.26 hearing (conditionally reversed to permit ICWA compliance) “Because this case would be subject to reversal to permit compliance with the ICWA and corresponding California statutes and rules absent the parties’ stipulation, a stipulated remand advances the interests identified by Code of Civil Procedure section 128, subdivision (a)(8).”	unclear	error	agree with court The court properly ran the Code of Civil Procedure section 128, subdivision (a)(8) analysis before accepting a stipulated reversal, relying on In re Rashad H., which approved stipulated reversals in dependency cases where reversal would be required anyway. A conditional reversal with limited remand is the conventional ICWA remedy and protects the child's permanency by reinstating the orders if no Indian ancestry is found. The one gap is that the court treated the inquiry error as reversible per se without any discussion of prejudice, an issue on which published appellate authority was divided at the time.

Authorities

relied: In re Rashad H. (2000) 78 Cal.App.4th 376 — An appellate court may accept a stipulated reversal in a dependency case under Code of Civil Procedure section 128, subdivision (a)(8) where the judgment would be reversed in any event, because doing so serves rather than erodes the public interest.
missed: In re Isaiah W. (2016) 1 Cal.5th 1 — The juvenile court has an affirmative and continuing duty to inquire whether a child is an Indian child, and ICWA notice and inquiry defects may be raised on appeal from a later order terminating parental rights.

The appellate opinion: sound with gaps — The opinion correctly identifies the Agency's statutory inquiry failures under section 224.2, subdivision (b), applies the Code of Civil Procedure section 128, subdivision (a)(8) test with the apt Rashad H. authority before accepting the stipulated reversal, and fashions the standard conditional-reversal remedy. It does not, however, articulate any prejudice or harmless-error analysis, an issue then dividing the Courts of Appeal, and it cites no ICWA case authority beyond the statutes and rule, which leaves the reasoning thin even if the result is plainly defensible.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 5/16/22 In re E.M. 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, FOUTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re E.M., A Person Coming Under the Juvenile Court Law. D080085 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. J510365H) Plaintiff and Respondent, v. P.M., et al.

Defendants and Appellants.

APPEAL from an order of the Superior Court of San Diego County, Browder A. Willis III, Judge. Conditionally reversed and remanded with directions. Robert McLaughlin, under appointment by the Court of Appeal for Defendant and Appellant P.M. William Hook, under appointment by the Court of Appeal for Defendant and Appellant J.L. P.M. (Father) and J.L. (Mother, together the parents) appeal from an order issued at the Welfare and Institutions Code1 section 366.26 hearing terminating parental rights to their daughter, E.M., and finding without prejudice that the Indian Child Welfare Act (ICWA, 25 U.S.C. § 1901 et seq.) did not apply. Counsel for the parents and the San Diego County Health and Human Services Agency (Agency) have conferred and agree that the Agency’s investigation under the ICWA was inadequate, under the relevant statutory and decisional authority. The parties filed a joint stipulation seeking the issuance of an immediate remittitur. We accept the stipulation, conditionally reverse, and remand for the limited purpose of ensuring compliance with ICWA’s requirements. DISCUSSION In November 2019, the parents denied any Indian ancestry and completed ICWA-020 forms indicating no knowledge of Indian ancestry. In February 2020, Father indicated possible Indian heritage. The social worker, however, was unable to obtain any further information from Father. Although the social worker had the names of the paternal grandparents and three paternal aunts, the record does not indicate that the Agency attempted to contact these individuals to inquire about possible Indian ancestry. The Agency also had direct communication with three of E.M.’s adult step-sisters but failed to inquire about Indian ancestry. The Agency also failed to ask E.M. about any possible Indian ancestry. The parties agree, and we concur, that the Agency did not comply with its initial duty of inquiry in this case by failing to inquire of the child and available extended family members regarding any potential Indian ancestry.

1 Undesignated statutory references are to the Welfare and Institutions Code.

2 (§ 224.2, subds. (a) & (b); Cal. Rules of Court, rule 5.481(a)(1).) We also note that before the juvenile court can find that the ICWA does not apply, it must make a finding that “due diligence as required in this section have been conducted.” (§ 224.2, subd. (i)(2).) The record does not show that the juvenile court made this finding. Before reversing or vacating a judgment based upon a stipulation of the parties, an appellate court must find “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.” (Code Civ. Proc., § 128, subd. (a)(8).) The present case involves reversible error because the parties agree, and we concur, that the Agency failed to comply with the ICWA and related California provisions. Because this case would be subject to reversal to permit compliance with the ICWA and corresponding California statutes and rules absent the parties’ stipulation, a stipulated remand advances the interests identified by Code of Civil Procedure section 128, subdivision (a)(8). (See In re Rashad H. (2000) 78 Cal.App.4th 376, 379–382.) DISPOSITION The orders issued at the February 24, 2022, contested Welfare and Institutions Code hearing are conditionally reversed and the matter is remanded to the juvenile court with directions that within 30 days of the remittitur the Agency must file a report demonstrating its compliance with the inquiry provisions of the ICWA and section 224.2, subdivision (b), and, if required, conduct further inquiry under section 224.2, subdivision (e). Within 3 45 days of the remittitur, the juvenile court must conduct a hearing to determine if the Agency’s investigation satisfied its affirmative duty to investigate. The juvenile court has the discretion to adjust these time periods on a showing of good cause. If neither the Agency nor the juvenile court has reason to believe or to know that E.M. is an Indian child, the orders issued at the February 24, 2022, contested Welfare and Institutions Code hearing shall be reinstated. Alternatively, if after completing the inquiry the Agency or the juvenile court has reason to believe that E.M. is an Indian child, the court shall proceed accordingly. The remittitur shall issue immediately.

HUFFMAN, Acting P. J.

WE CONCUR:

O'ROURKE, J.

AARON, J.

Cites, in this corpus

In Re Rashad H. B133778 · 2000-03-02