Filed 1/12/23 In re J.M. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In re J.M., a Person Coming Under the 

Juvenile Court Law.

 H049925

 (Santa Clara County Super. Ct.

 No. 20JD026552)

SANTA CLARA COUNTY 

DEPARTMENT OF FAMILY AND 

CHILDREN’S SERVICES,

Plaintiff and Respondent,

v.

J.M.,

Defendant and Appellant.

MEMORANDUM OPINION1

Appellant J.M. (Mother) appeals from the findings and order made at the Welfare 

and Institutions Code section 366.262selection and implementation hearing that the 

respondent, Santa Clara County Department of Family and Children’s Services 

(Department), conducted an adequate inquiry under the Indian Child Welfare Act 

(ICWA) and that ICWA did not apply as to her child, J.M. The Department and Mother

jointly move for a summary reversal of the order. The parties agree that the trial court 

1 We resolve this case by memorandum opinion under California Standards of 

Judicial Administration, section 8.1. (See also People v. Garcia (2002) 97 Cal.App.4th 

847, 853-855.) 

2 Undesignated statutory references are to the Welfare and Institutions Code unless 

otherwise noted.
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failed to comply with ICWA, and request that we remand the matter to the trial court for 

the limited purpose of ensuring compliance with ICWA. We grant the motion and 

reverse the order pursuant to the stipulation of the parties.

In October 2020, the Department filed a dependency petition to remove J.M. from 

Mother’s care. In its initial hearing report, the Department stated that it had interviewed 

J.M.’s maternal grandmother, maternal great-grandmother, and father (Father). J.M.’s 

grandmother reported that her family had Navajo and Apache heritage through J.M.’s

maternal great-great-grandfather, who was born on an Apache reservation in Arizona, 

and that one of J.M.’s maternal great-great-grandmothers had Navajo heritage. J.M.’s 

grandmother reported that she did not have any further information. J.M.’s other 

maternal great-grandmother reported having no knowledge regarding Native American 

heritage. Father reported that, to his knowledge, he did not have Native American 

heritage. Finally, the Department reported that the court had made a finding that ICWA 

did not apply to the family in September 2005.

3 At the initial hearing, Mother’s counsel 

reported that Mother might have additional information regarding the prior ICWA 

finding. It does not appear that any further ICWA inquiry was conducted between 

October 2020 and March 2021.

At the jurisdictional and dispositional hearing in March 2021, Father and J.M.’s 

maternal grandmother and grandfather testified. Father testified that, to his knowledge, 

he had Native American ancestry but did not know any specific tribal affiliation. J.M.’s 

3 The Department did not state whether this finding was in the context of a prior 

dependency or other proceeding, stating only that, “It should be noted that on 09/09/2005, 

the Court made a finding that ICWA does not apply to the family, as the Apache tribes 

had been noticed and they indicated that the mother is not a member of their tribe or 

eligible for membership. The tribes that were notified includes [sic] the Mascalero

Apache, The [sic] Fort Sill Apache, The [sic] Yavapai-Apache Nation, the White 

Mountain Apache, the San Carlos Apache, the Jicarillo Apache Nation, the Tonto 

Apache, the Fort McDowell Yavapai, and the Apache Tribe of Oklahoma.”
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grandmother testified consistent with her prior report to the Department and J.M.’s 

grandfather testified that he did not have any Native American ancestry.

Following the hearing, in March 2021, the Department sent ICWA inquiries to the 

Apache and Navajo tribes. The Department asked Father about Native American 

heritage. He provided information about his parents and stated that he had no 

information to provide regarding his grandparents. At the continued jurisdictional and 

dispositional hearing later that month, the court found that the Department had conducted 

a diligent inquiry and there was no reason to know J.M. was an Indian child.

Between October 2021 and February 2022, the Department attempted 

unsuccessfully to contact J.M.’s maternal grandmother, uncle, great-aunt and great-uncle

and paternal grandmother and aunt. In addition to the previously contacted relatives, the 

Department contacted J.M.’s paternal cousin, a maternal aunt, and the wife of one of 

J.M.’s maternal great-uncles. J.M.’s cousin reported having no information, but J.M.’s 

aunt reported that she might have Ohlone ancestry. J.M.’s great-uncle’s wife reported 

that she “used to hear things way back in the family” regarding Native American 

ancestry, but she had no further information. 

In February 2022, the Department filed its section 366.26 report. The Department 

detailed its inquiry efforts from the previous fall and reported that all but two Indian 

tribes had responded that J.M. was not eligible for enrollment, while the two remaining 

tribes had not responded. The Department also stated that, in November 2021, the 

juvenile court had made a finding that there was no reason to believe that J.M.’s sibling 

was an Indian child.4In March 2022, Mother informed the Department that she did not 

4 A separate dependency proceeding was filed on behalf of J.M.’s sibling, O.M., 

after O.M.’s birth in 2021. Mother separately appealed the court’s ICWA findings in that 

dependency proceeding, which appeal is currently pending before this court. (In re O.M.

(H049976, app. pending).)
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have any new information pertaining to J.M.’s Indian ancestry, but that she believed there 

was a number on J.M.’s birth certificate that might relate to Indian ancestry.

In March 2022, the court held a selection and implementation hearing. The trial 

court again found that ICWA did not apply and terminated the parental rights of Mother 

and Father and ordered J.M. placed for adoption. Mother timely appealed the court’s

order. After Mother filed her opening brief, the parties jointly moved for summary 

reversal.

On appeal, Mother contends that the trial court’s order must be reversed and the 

matter remanded to the trial court because the court failed to ensure compliance with 

ICWA. She argues that the Department’s failure to do further investigation about 

potential Indian ancestry violated ICWA. The Department concedes that the 

investigation was insufficient because it failed to inquire of all available relatives, and the 

parties agree that the juvenile court erred when it found that ICWA did not apply because 

the Department had not made sufficient efforts to contact all known relatives who may 

have information about J.M.’s potential Indian heritage. They further agree that reversal 

is appropriate. To minimize delay, they jointly request that this court reverse and remand 

the matter pursuant to their stipulation for the limited purpose of allowing the Department 

to conduct a proper inquiry of all available family members pursuant to section 224.2, 

subdivision (b), and if warranted, conduct further inquiry pursuant to section 224.2, 

subdivision (e), or send notice under ICWA as appropriate. (In re N.D. (2020) 46 

Cal.App.5th 620, 624.) 

The parties’ joint motion supports the conclusion that a summary reversal pursuant 

to stipulation 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, the court finds that there 

is no possibility that the interests of nonparties or the public will be adversely affected by 

the reversal. Summary reversal of the judgment would place the parties in the same 

position they would be in if the appeal were successfully prosecuted to completion, 
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would save both private and judicial resources because it would obviate the need for 

further briefing by the parties and review of the record by this court, and most 

importantly would minimize delay in permanency for the child. Both public policy and 

the public interest are served by these outcomes.

This court further finds that the parties’ grounds for requesting reversal are 

reasonable. While the Department conducted an extensive inquiry, it appears that the 

Department was unable to successfully contact certain identified relatives, such as J.M.’s 

maternal uncle or any of her paternal relatives other than Father and a paternal cousin. 

Additionally, it appears that the Department did not conduct further inquiry regarding 

J.M.’s potential Ohlone ancestry. Finally, the parties have also jointly moved for 

summary reversal of the court’s ICWA findings in the dependency proceeding for J.M.’s 

sibling, and that appeal is currently pending before this court. The parties agree that the 

Department’s ICWA inquiry was deficient and that the trial court erred in finding ICWA 

did not apply without ensuring that the Department had completed a sufficient inquiry. 

They also agree that if after ensuring compliance, the court again finds that ICWA does 

not apply, the court can reinstate the dispositional order. These grounds for jointly 

requesting reversal 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. Public trust in the courts is 

enhanced, not eroded, when parties recognize and acknowledge errors and agree to 

resolve them with limited delay. (See Union Bank of Cal. v. Braille Inst. of Am. (2001) 

92 Cal.App.4th 1324.)

DISPOSITION

The March 22, 2022, order terminating parental rights is reversed pursuant to the 

stipulation of the parties. The matter is remanded to the trial court for the limited purpose 

of ensuring compliance with ICWA. If the court determines that the requirements of 
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ICWA have been met, the court shall reinstate the order. The remittitur shall issue 

forthwith.
_______________________________

Greenwood, P. J.

WE CONCUR:

______________________________________

 Lie, J.

______________________________________

 Wilson, J.

H049925

In re J.M.; DFCS v. J.M.