Filed 2/8/24 In re Jacob H. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

In re JACOB H.

, a P erson Coming

Under the Juven ile Court Law. B 327825

LOS ANGELES COUNTY

DEPARTMENT OF CHILDREN

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

DANY H.

,

Defendant and Appellant

. L os Angeles County

Super. Ct. No. 22CCJP03920C

APPEAL from order s of the Superior Court of Los Angeles

County. Steph e n C. Marpet

, Commissioner

. Conditionally

a ffirmed

.

Liana Serobian , under appointment by the Court of Appeal,

for Defendant and Appellant.

Dawyn R. Harrison, County Counsel

, Kim Nemoy,

Assistant County C ounsel

, and Jessica S. Mitchell

, Senior Deputy

County Counsel, for Plaintiff and Respondent.

____________________2 Dany H., the biological father of Jacob H., appeals the

juvenile court’s determinations that (a) Dany is not entitled to

presumed father status; and (b) there was no reason to know

Jacob is an Indian child within the meaning of the Indian Child

Welfare Act (ICWA ; 25 U.S.C. § 1901 et seq. ). We review each

question for substantial evide nce. The record does not compel the

conclusion that Dan y is Jacob’s presumed father. And we find no

error in the juvenile court’s preliminary determination

— made

prior to its jurisdictional and dispositional orders

— that there was

no reason to know Jac ob is an Indian child. However, since the

court and the Los Angeles County Department of Child ren and

Family Services (the Department) each recognize their

continuing inquiry dut ies under ICWA , we conditionally affirm

with instructions to continue to fulfill ICWA obligations

.

B ACKGROUND

This case began in October 2022

, when Jacob was five . It

was precipitated by Dany murdering Jacob’s mother’s boyfriend

and then absconding with Jacob after picking him up from school

under a fictitious name

. Dany was later found walking the

streets with Jacob at 1:00 a.m. Jacob was detained . Dany was

arrested. Dany has been in state custody ever since.

1. Background Relevant to Parentage

Before Dany murdered mother’s boyfriend, it is unclear

how much time Jacob spent with Dany . Only a small amount of

time is established in the record. Jacob lived with Dany at

Dany’s siblings ’ house or houses for a month or two before the

murder. This was because he had just been released from jail in

August 2022

, and mother ’s substance abuse had rendered her

unable to care for Jacob and her two other children by a different3

father

. For some time b efore Dany was released from jail

, Jacob

stayed with maternal grandmother or in a motel with mother.

The parties do not tell us how long Dany was in jail prior to

h is August 2022 release

. At some point

— again, we do not know

when

— he spent about a year on the lam in Mexico while wanted

in California for receiving stolen property

. Dany offers that he at

least lived with mother while she was pregnant with Jacob.

At th e juvenile court arraignment hearing in November

2022

, Dany’s counsel represented that Jacob lived with Dany

since October 2021 and that Dany had always provided for Jacob

and held him out as his own child to family and friends

. Dany

filed a signed Form JV

- 505 regarding parentage the same day to

the same effect. He also asserted that he participated in “home &

school activities” with Jacob

, and Jacob spent holidays and

birthdays with Dany’s family. In that filing, Dany acknowledge d

he had not previously established parentage

— neither by a

voluntary declaration nor court judgment

— and requested a

finding of presumed fatherhood. On the basis of these

representations, the court stated, “[s]ounds like he’s a presumed

father for this child. [¶] We ’ll make [Dany] a presumed father.”

But some of the representations that formed the basis for

that ruling were false. Jacob could not have lived with Dany

from October 2021 th r ough October 2022 because Dany was

released from jail in August 2022. Dany and mother both stated

Jacob had lived with Dany for just a month or two before the

murder. Mother did confirm Dany provided some material

support for Jacob. And it is true that Dany was know n to Jacob’s

school. Both he and mother had instructed the school not to

release Jacob to t he other, but neither ever provided the school4

any legal documents or custody orders showing a restriction

against the other parent.

On its own initiative, after discovering that Jacob’s birth

certificate did not identify Dany as his father, the juvenile court

notified the parties it would reconsider whether Dany was a

presumed father

. At Dany’s counsel’s request, the court

continued the matter so counsel could prepare for the hearing

.

A bout a month later, Dany’s counsel offered the following

argument as to why Dany should be a presumed father :

“although [Dany] was not married to the mother, not on the birth

certificate, he has lived with the child. He’s lived with him for a

few months in October of 2021. I believe prior to this incident, he

was living w ith the child and enrolled the child in school. He was

involved in the child’s schooling. In the report the principal knew

of [Dany] . He has been around and has a relationship with

Jaco b .” She continued, “[h]e indicated in the report he was

paying mother’s rent for some time so he has a relationship. I

don’t understand why he would not be presumed.”

The juvenile court rejected these arguments because Dany

“had never taken the child into his home

. . . .” It explained, “ [h]e

may have lived with the child with mother but that’s different

than taking the child into his home. He’s not on the birth

certificate. They weren’t living together at conception or birth.

And he has never taken th e child into his home. For a couple of

months he might have lived with mother but that’s it.”

Dany’s counsel did not dispute this characterization of the

facts . Rather, she responded “[t]hat was his home at the time,

Your Honor

. ” After the juvenile cou rt found Dany was merely a

“bio

- alleged father” and not a “presumed father,” Dany’s counsel

asked the court to reconsider : “I would just like to restate my5

request for presumed status, under Family [Code]

section 7611(d), [Dany] has held himself openly as the father and

held him in his home, even if he shared that home with the

mother. We’re again asking for presumed status.” Notably

, Dany’s trial counsel abandoned any contention that Dany had

lived with Jacob in a home that was not mother’s or that , as

Dany’s appellate counsel repeatedly and incorrectly claims, Dany

“took exclusive custody of Jacob since October 2021 until the

child’s detention from [Dany] in October 2022

. . . . ”

2. Facts Relevant to ICWA

Mother and Dany each filed a Form ICWA

- 020 denying

Indian heritage

. The Department separately inquired with

mother, Dany, and maternal grandmother about possible Indian

heritage. Each denied any such heritage, and Dany described his

family as being of Mexican , rather than American Indian,

desc ent. The Department did not inquire with any paternal

relatives

, despite at least one paternal aunt living locally and

having been identified as a potential monitor for telephonic visits

between Dany and Jacob. Dany lived with this or another

paternal aun t or uncle before being arrested for murder

, and the

Department had Dany’s last known address

. Thus, the

Department had contact information for at least one paternal

aunt or uncle with whom it had not, as of the commencement of

this appeal, inquire d about Indian heritage.

The juvenile court found it had no reason to know Jacob

was an Indian child, as defined under ICWA, both after father

filed his ICWA

- 020 form and after mother filed her ICWA

- 020

form

. Each of these findings was made before the court entered

its jurisdictional and dispositional orders.6 DISCUSSION

1. Parentage Finding

Dany challenges the juvenile court’s decision to deem him a

biological and alleged father rather than a presumed father. The

Department contends he forfeited his constitutional challenges to

that action by failing to raise them below, and we agree. ( People

v. Navarro (2013) 212 Cal.App.4th 1336, 1347, fn. 9 [“ [a] ll issues,

even those involving an alleged constitutional violation, are

subject to the rule of forfeiture, and a defendant ’ s failure to raise

the issue before the trial court will generally result in the

appellate court ’ s refusal to consider it”].) We find his other

arguments to be with out merit.

First, we reject Dany’s contention that the juvenile court

committed reversible error by failing to comply with its duty of

inquiry imposed under California Rules of Court, rule 5.635(d)

and (e)

. Dany argues th e juvenile court erred in failing to order

t he clerk to prepare and submit a parentage inquiry to the local

child support agency to determine whether parentage of Jacob

had been established. Cognizant that such an error is subject to

harmless error analysis (see In re Kobe A . (2007) 146 Cal.App.4th

1113, 1123 [ applying harmless error analysis to purported

violation of rule 1413 (now rule 5.635) ]) , Dany contends error was

prejudicial because he “declared on his JV

- 505 parentage form

that there was a previous parentage finding through genetic

testing ‘DNA’ and he paid mother for the child’s care, likely

showing that parentage and child support may have already been

established.” Not so. Dany’s JV

- 505 form did say h e “ want [ ed ]

the court to know ” “ [p]ositive DNA test,” but it also provided

parentage had not been established

— neither by a voluntary

declaration nor court judgment

— and requested a finding of7

presumed fatherhood. Because there was no parentage order or

dec laration to be discovered, there was no prejudice.

Second, we are unpersuaded that the juvenile court erred

in concluding the record failed to establish Dany was Jacob’s

presumed father under subdivision (d) of Family Code

section 7611. It is undisputed that Dany does not qualify as a

presumed father under any of the other section 7611 grounds

because he and mother never married, Dany was not named on

Jacob’s birth certificate, and Dany had no formalized support

obligation to Jacob. (See id. , sub d s. (a)

- (c).)

To qualify as a presumed father under Family Code

section 7611

, subdivision (d), a father must “receive [] the child

into [his] home and openly hold [] out the child as [his] natural

child.” ( Ibid .) Receipt of the child and holding t he child out as

kin are two separate requirements

. ( Adoption of Michael H.

(1995) 10 Cal.4th 1043, 1051 [“ a man who has neither legally

married nor attempted to legally marry the mother of his child

cannot become a presumed father unless he both ‘ receives the

child into his home and openly holds out the child as his natural

child. ’ ” ].) “ A person requesting presumed parent status under

section 7611, subdivision (d) must have a ‘fully developed

parental relationship’ with the child.” ( In re M.Z. ( 2016)

5 Cal.App.5th 53, 63.)

“There are no specific factors that a trial court must

consider before it determines that a parent has ‘received’ a child

into the home and has established a parental relationship.” ( W.S.

v. S.T

. (2018) 20 Cal.App.5th 132, 145 .) “ ‘[C] ourts have looked to

such factors as whether the [alleged father] actively helped the

mother in prenatal care; whether he paid pregnancy and birth

expenses commensurate with his ability to do so; whether he8

promptly took legal action to obtain custody of the child; whether

he sought to have his name placed on the birth certificate;

whether and how long he cared for the child; whether there is

unequivocal evidence that he had acknowledged the child; the

number of people to whom he had acknowledged the child;

whether he provided for the child after it no longer resided with

him; whether, if the child needed public benefits, he had pursued

completion of the requisite paperwork; and whether his care was

merely incidental. ’ ” ( In re J.H. (2011) 198 Cal.App.4th 635, 646.)

“While the juvenile court may consider a wide range of

factors in making a presumed parent determination, as

appropriate to the circumstances [citation], the core issues are

the person’s established relationship wi th and demonstrated

commitment to the child.” ( In re Alexander P. (2016)

4 Cal.App.5th 475, 485.) The burden is on the person seeking

presumed parent status to demonstrate the foundational facts

giving rise to the presumption. ( R.M. v. T.A (2015)

233 Ca l.App.4th 760, 774 .)

We review the juvenile court’s rejection of Dany’s claim to

presumed father status under Family Code section 7611,

subdivision (d) for substantial evidence. ( In re Spencer W

. (1996)

48 Cal.App.4th 1647, 1653.) Because Dany had the burden of

proof in the juvenile court, this standard of review requires Dany

to demonstrate the evidence below compelled a finding in his

favor as a matter of law. (See, e.g., In re Aurora P

. (201 5)

241 Cal.App.4th 1142, 1163.) In assessing his position, we

consider “whether [his] evidence was (1) ‘uncontradicted and

unimpeached’ and (2) ‘of such a character and weight as to leave

no room for a judicial determination that it was insufficient to

su pport a finding.’ ” ( In re I.W. (2009) 180 Cal.App.4th 1517,9

1528, overruled in part by Conservatorship of O.B. (2020)

9 Cal.5th 989, 1010.)

The record does not compel the conclusion that Dany is

Jacob’s presumed father. Dany first claims the record

“abundantly showed [he] lived with mother when she was

pregnant with Jaco b, and after they separated, [Dany] tried to

marry mother by giving her an engagement ring and paid

mother’s rent and gave her money for Jacob’s care. ” M ost of

thes e facts are based exclusively on statements Dany made to the

Department and the Department recited in a report. In the same

report, the Department noted Dany’s lack of credibility and

denial of facts that were well established by other witnesses ( e.g.,

that Dany once shot a t a car that had cut him off while driving

with Jacob and mother). Accordingly, the juvenile court was free

to disbelieve Dany’s reported statements to the Department

. A s

to Dany’s financial support, the court might reasonably have

attributed it to serving Dany’s own interest s rather than his

interest in being a parent to Jacob. (Cf. In re Spencer W.

, supra,

48 Cal.App.4th at p. 1653 [ the father’s cohabitation with the

mother and the child at the mother’s home not demonstrative of

commitment to the child given other interests the father had in

the arrangement ].) Dany acknowledged financially supporting

mother was something he did to help mother “ get better

. ”

Similarly, his decision to care for Jacob between Dany’s stints in

state custody related

, in Dany’s telling, to mother’s substance

abuse issues.

Dany goes on to claim he “took exclusive custody of Jacob

since October 2021 until the c h ild’s detention from [him] in

October 2022

, a period of time when mother succumbed to her

drug use and voluntarily relinquished Jacob’s physical custody to10

[Dany].” As already noted, Dany claimed this in his JV

- 505 form

but contradicted it in other statements to the Department

. He

admitted he wa s in custody for at least some of this time as he

was incarcerated at least during August 2022 and the record does

not disclose how long he was held in custody before his release in

August 2022

. Ultimately , the breadth of factors the juvenile court was

entitled to consider , the limited time Dany cared for Jacob, and

the lack of clarity as to whet her that took place at Dany’s home,

mother’s home, or the home of a sibling of Dany’s, we cannot say

that the record compels the conclusion that Dany received Jacob

into his home. As such, we need not consider whether Dany also

held Jaco b out as his child

.

2. ICWA Inquiry

In involuntary state court proceedings concerning child

custody, such as these dependency proceedings, ICWA requires

notice to the relevant Indian tribe “where the court knows or has

reason to know that an Indian child is involved.” (25 U.S.C.

§ 1912(a).) It is incumbent upon the court administering such a

proceeding to inquire whether the subject child is an Indian child.

The scope of the duty on the court, as well as certain participants

in the proceeding (including county welfare departments, like the

Department) , is defined by federal regulations and related state

law. (See, e.g., 25 C.F.R. § 23.107 (2023); Welf. & Inst. Code,

§ 224.2; Cal. Rules of Court, rule 5.481.)

“ The duty to inquire begins with the initial contact,

including, but not limited t o, asking the party reporting child

abuse or neglect whether the party has any information that the

child may be an Indian child. ” ( Welf. & Inst. Code, § 224.2,

subd. (a).) The court and county welfare department “ have an11

affirmative and continuing duty ” to inquire whether a child for

whom a petition under section 300 may be or has been filed may

be an Indian child. (§ 224.2, subd. (a).)

Dany claims error under Welfare and Institutions Code

section 224.2, subdivision (b), which obligates the Department to

ask certain persons related to the proceedings about the child ’ s

possible Indian ancestry. (See § 224.2, subds. (a), (b), (c); In re

S.S . (2022) 75 Cal.App.5th 575, 581; In re D.F . (2020) 5 5

Cal.App.5th 558, 566.) As relevant to Dany’s appeal, these

persons include the child ’ s statutorily defined “extended family

members

. ” ( Welf. & Inst. Code, § 224.2, subds. (b), ( d ) ; see also

25 U.S.C. § 1903(2); Welf. & Inst. Code, § 224.1, subd. (c)

. ) Whi l e

the duty to inquire of extended family member s lies with the

county welfare department, a juvenile court’s finding that the

ICWA does not apply implies that (a) neither the department nor

the court had a reason to know or believe the child was an Indian

child; and (b) the department fulfilled its duty of inquiry. ( In re

Josiah T

. (2021) 71 Cal.App.5th 388, 401.) We review such

finding s for substantial evidence. ( Ibid .)

Th is appeal was taken when the case was in its early

stages. The order appealed was the juvenile court’s jurisdictional

and dispositional order. “[A]n ICWA appeal at the jurisdiction

and disposition stage” is premature “where there will necessarily

be further dependency proceedings in the juvenile court (at which

continuing ICWA duties apply)” and a basis for later appeal if for

some reason the Dep artment fails to fulfill its continuing duty of

inquiry. (See In re Baby Girl M . (2022) 83 Cal.App.5th 635, 638.)

Although the juvenile court twice found no reason to know

Jacob was an Indian child after receiving the parents’ respective

ICWA

- 020 forms

, i t also recognized the inquiry was ongoing. The12

minute orders summarizing its findings included an admonition

to the parents to keep the court and Department apprised of any

new information relating to possible ICWA status. The court

remains obligated to change its finding of no reason to know

Jacob is an Indian child if new information comes to light

. ( In re

S.H. (2022) 82 Cal.App.5th 166, 176.) Likewise, the Department

acknowledges that it has “an ongoing duty to comply with the

ICWA and the opportunit y to conduct further inquiry of extended

paternal family members.” We expect the Department will fulfill

its duty of inquiring with all available extended family members

as the case progresses, if it has not done so already.

We therefore conditionally affirm the court’s orders.

Should it become known, or should there be reason to know, that

Jacob is an Indian child, the notice requirement will be activated,

and the relevant tribes will need to be notified. The jurisdictional

and disposit ional findings do not need to be reversed to direct the

court and the Department “ to do something they recognize they

must do anyway. ” ( In re S.H., supra , 82 Cal.App.5th at p. 177.)

DISPOSITION

The juvenile court ’ s finding with respect to Dany’s

paternity and preliminary findings with respect to Jacob’s Indian

heritage are conditionally affirmed subject to the Department

and the court continuing to fulfill their ICWA obligations

.

GRIMES, Acting P. J.

WE CONCUR:

WILEY, J. VIRAMONTES, J.