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

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

In re JACOB H., a Person Coming 

Under the Juvenile Court Law.

B327825

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

DANY H.,

Defendant and Appellant.

Los Angeles County

Super. Ct. No. 22CCJP03920C

APPEAL from orders of the Superior Court of Los Angeles 

County. Stephen C. Marpet, Commissioner. Conditionally 

affirmed.

Liana Serobian, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Dawyn R. Harrison, County Counsel, Kim Nemoy, 

Assistant County Counsel, and Jessica S. Mitchell, Senior Deputy 

County Counsel, for Plaintiff and Respondent.

____________________
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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 evidence. The record does not compel the 

conclusion that Dany 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 Jacob is an Indian child. However, since the 

court and the Los Angeles County Department of Children and 

Family Services (the Department) each recognize their 

continuing inquiry duties under ICWA, we conditionally affirm 

with instructions to continue to fulfill ICWA obligations. 

BACKGROUND

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 different 
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father. For some time before 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 

his 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 the 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 acknowledged

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 through 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 known to Jacob’s 

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

release Jacob to the other, but neither ever provided the school 
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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.

About 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 with 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 

Jacob.” 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 the 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 court 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 my 
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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,

descent. 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 aunt 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, inquired 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.
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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 without 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 the juvenile court erred in failing to order 

the 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 he “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 of 
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presumed fatherhood. Because there was no parentage order or 

declaration 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., subds. (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 the 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 he
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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 with 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 Cal.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. (2015)

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

support a finding.’ ” (In re I.W. (2009) 180 Cal.App.4th 1517,
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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 Jacob, 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.” Most of

these 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 at 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. As

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

attributed it to serving Dany’s own interests 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 child’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 to
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[Dany].” As already noted, Dany claimed this in his JV-505 form

but contradicted it in other statements to the Department. He

admitted he was 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 whether 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 Jacob 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 to, 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 an 
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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) 55 

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).) While 

the duty to inquire of extended family members 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

findings for substantial evidence. (Ibid.)

This 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 Department 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, it also recognized the inquiry was ongoing. The 
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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 opportunity 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 dispositional 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.