In re Isaiah N. CA2/5 ( 2024 )

Filed 7/5/24 In re Isaiah N. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
In re ISAIAH N., a Person B319548
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. No.
21CCJP04536)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
S.N.,
Defendant and Appellant.
APPEAL from a judgment and orders of the Superior Court
of Los Angeles County, Robin R. Kesler and Diane Reyes, Judges
Pro Tempore. Affirmed.
Benjamin Ekenes, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, Melania Vartanian, Deputy County
Counsel, for Plaintiff and Respondent.
_________________________________________
I. INTRODUCTION
S.N. (father) appeals from a judgment and postjudgment
orders of the juvenile court regarding Isaiah N. (the child), who
was adjudged a dependent of the court pursuant to Welfare and
Institutions Code section 300.1 Father contends that the court
erred when it reversed a prior bench officer’s ruling that father
was the presumed father and found instead that he was an
alleged father. Father also challenges the court’s order denying
reunification services as unsupported by the evidence. Finally,
he asserts the court and the Los Angeles County Department of
Children and Family Services (Department) failed to comply with
their inquiry obligations under the Indian Child Welfare Act of
1978 (ICWA; 25 U.S.C. § 1901 et seq.) and related California
statutes (§ 224 et seq.). We affirm the orders.
1 Further statutory references are to the Welfare and
Institutions Code unless otherwise indicated. Mother, B.L., is not
a party to this appeal.
2
II. BACKGROUND2
A. Dependency Petition and Detention Hearings
On September 28, 2021, the Department filed a section 300
petition, alleging that mother’s substance abuse and father’s
failure to protect the child placed the child at substantial risk of
suffering serious physical harm.
On October 1, 2021, the juvenile court conducted a
detention hearing at which mother appeared. Mother’s counsel
advised the court that father had not been present at the child’s
birth and had not signed the birth certificate. Mother’s counsel
agreed, however, that father had held himself out as the child’s
father. The juvenile court ordered that the child be detained and
that the Department conduct a due diligence search for father.
On November 15, 2021, the Department learned father was
in custody at Men’s Central Jail.
On November 16, 2021, the Department filed an amended
petition, adding allegations based on the parents’ history of
violent altercations, which included an extensive history of
domestic violence by father against mother.
On November 23, 2021, the juvenile court, with Judge Pro
Tempore Cynthia A. Zuzga presiding, conducted a hearing at
which father participated by video. Father submitted a
Statement Regarding Parentage, in which father stated, “I
2 We grant father’s requests to judicially notice several
documents from a prior dependency proceeding involving father’s
other children and a minute order of the section 366.22 review
hearing on April 10, 2023. (Evid. Code, §§ 452, subd. (d), 459,
subd. (a).)
3
believe I am the parent of the child and request that the court
find that I am the presumed parent of the child.” He asserted
that he told “[e]veryone” that he was the child’s father.
Father’s counsel conceded that father was not on the birth
certificate and was not married to mother. Counsel added that
“given the age of the child and [father’s] incarceration, he’s been
unable to accept the child in his home . . . .” Father’s counsel
asserted, however, that father held himself out as the child’s
father and requested the court find him to be the presumed
father. The juvenile court found father to be the presumed
father.
B. Adjudication and Disposition Hearing
On February 16, 2022, the juvenile court conducted an
adjudication and disposition hearing. A different judicial officer,
Judge Pro Tempore Robin R. Kesler, presided over this hearing.
The Department’s counsel requested “that the paternity findings
be changed” because father was an alleged, and not a presumed,
father.
Father’s counsel argued that the Department could not
make its request orally and was instead required to file a written
motion.
The juvenile court continued the hearing regarding father’s
paternity and requested that the parties file written briefs
addressing whether the court had authority “to go back on that
and set that aside.” The court opined that “[father] does not
qualify as presumed.”
As to adjudication, the juvenile court sustained all but one
of the counts based on father’s conduct. For disposition, the court
4
ordered the child removed from mother and father. The court
also denied reunification services for father, pursuant to section
361.5, subdivisions (b)(10) and (11).3 The court added that father
had a long history of spousal abuse, continued to engage in
domestic violence, and failed to take any steps necessary to
ameliorate his issues. The court found that it was not in the
child’s best interest to offer father reunification services.
C. Proceedings Concerning Father’s Paternal Status
On March 10, 2022, the Department filed a motion to
“change presumed father status finding.” The Department
argued that father “never met the burden of proof to establish
presumed father status” (capitalization and emphasis omitted),
and “the juvenile court should have never found that [father]
qualified as [the child’s] presumed father.” The Department
therefore “respectfully request[ed] that the court reverse the
presumed father finding, and find [father] to be an alleged father
only.”
On March 22, 2022, the juvenile court conducted a hearing
on the Department’s motion. A third judicial officer, Judge Pro
Tempore Diane Reyes, presided over this proceeding. The court
noted that it was not the bench officer at the November 23, 2021,
3 Reunification services need not be provided to a parent if
“the court ordered termination of reunification services for any
siblings or half siblings of the child because the parent . . . failed
to reunify with the sibling or half sibling after the sibling or half
sibling had been removed from that parent” (§ 361.5, subd.
(b)(10)(A)), or “the parental rights of a parent over any sibling or
half sibling of the child had been permanently severed . . . .”
(§ 361.5, subd. (b)(11)(A).)
5
hearing, and that the minute order from that hearing failed to
specify why father was deemed a presumed father. Father’s
counsel stated: “I am asking the court to then find [father] to be
the biological father. [¶] One of the issues at the last court date
was whether the court had the authority to vacate that finding.
Upon further research I notice that the notice—I don’t want to
mislead the court and state that the court cannot do that.
However, [father] and . . . mother both state that [father] is the
biological father of this child.”
The Department’s counsel argued that father should not be
declared the biological father until after he completed a DNA
test. Counsel asserted that father himself had indicated he was
unsure whether he was the biological father.
The juvenile court ordered father’s status changed from
presumed to alleged father. The court also ordered the
Department to conduct DNA testing on the child and father.
On March 22, 2022, father filed a notice of appeal.
In a last minute information filed with the court on
May 6, 2022, the Department indicated that the child’s DNA had
been tested. Father, however, had failed to appear for his
scheduled test or to reschedule it.
On October 16, 2023, the juvenile court terminated
parental rights for all parents and found the permanent plan to
be adoption. Father did not file an appeal from that order. On
June 17, 2024, the adoption became final and the juvenile court
terminated jurisdiction.4
4 We grant the Department’s requests for judicial notice of a
minute order dated October 16, 2023, which terminated parental
rights, and a minute order dated June 17, 2024, which reflected
that the adoption of the child was finalized.
6
III. DISCUSSION
A. Paternal Status—Invited Error and Forfeiture
Father contends on appeal that Judge Pro Tempore Reyes
erred when she overruled Judge Pro Tempore Zuzga’s prior order
deeming father to be the presumed father. The Department
responds that father either forfeited the argument by failing to
raise it before the juvenile court or invited any error by
suggesting that the court had authority to revisit the issue of
father’s paternity. We agree with the Department.
“‘A party forfeits the right to claim error as grounds for
reversal on appeal when he or she fails to raise the objection in
the trial court. [Citations.] Forfeiture, also referred to as
“waiver,” applies in juvenile dependency litigation and is
intended to prevent a party from standing by silently until the
conclusion of the proceedings.’ [Citation.] Thus, a party may not
assert theories on appeal which were not raised in the trial
court.” (In re N.O. (2019) 31 Cal.App.5th 899, 935.) “‘Under the
doctrine of invited error, when a party by its own conduct induces
the commission of error, it may not claim on appeal that the
judgment should be reversed because of that error.’” (In re G.P.
(2014) 227 Cal.App.4th 1180, 1193.)
The Department moves to dismiss father’s appeal as moot
on the grounds that the juvenile court has now terminated
father’s parental rights and father did not appeal from that order.
Even if the appeal were otherwise moot, for father’s benefit, we
will articulate why his appeal is without merit. (See In re Alexis
E. (2009) 171 Cal.App.4th 438, 451.) Accordingly, we deny the
motion to dismiss.
7
Even assuming the juvenile court erred by reconsidering
father’s paternal status (but see § 385 [“Any order made by the
court in the case of any person subject to its jurisdiction may at
any time be changed, modified, or set aside, as the judge deems
meet and proper, subject to such procedural requirements as are
imposed by this article”]), father’s counsel either forfeited the
issue or invited the error by conceding before the juvenile court
that the court had the authority to reconsider his status.
Accordingly, we apply the forfeiture and invited error doctrines
here. (See In re S.B. (2004) 32 Cal.4th 1287, 1293; In re J.R.
(2022) 82 Cal.App.5th 569, 587, fn. 23.)
B. Reunification Services
Father next contends that the juvenile court erred by
denying him reunification services. A juvenile court’s findings to
deny reunification services are reviewed for substantial evidence.
(In re Albert T. (2006) 144 Cal.App.4th 207, 216.) Pursuant to
section 361.5, “[r]eunification services must be provided to the
mother and statutorily presumed father of children who have
been removed from their parents’ custody, unless a statutory
exception applies.” (In re A.E. (2019) 38 Cal.App.5th 1124, 1141.)
Only presumed fathers, however, are entitled to such services.
(In re Zacharia D. (1993) 6 Cal.4th 435, 451–452; In re D.P.
(2015) 240 Cal.App.4th 689, 695.) Accordingly, we reject father’s
contention that the court erred in denying him reunification
services. (See In re Zamer G. (2007) 153 Cal.App.4th 1253, 1271
[appellate courts affirm lower court’s rulings if correct upon any
applicable theory of law].)
8
C. ICWA
Finally, we address father’s challenge to the sufficiency of
the Department’s ICWA inquiry. “‘[T]o have standing to appeal,
a person generally must be both a party of record and sufficiently
“aggrieved” by the judgment or order.’ [Citation.] An alleged
father who has not acknowledged or established he is a parent
within the meaning of title 25 United States Code section 1903(9)
lacks standing to challenge a violation of the ICWA notice
provisions. [Citations.]” (In re Daniel M. (2003) 110 Cal.App.4th
703, 709.) Because father lacks standing to raise a challenge to
the Department’s compliance with its inquiry duties under
ICWA, we do not consider the merits of his argument.
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IV. DISPOSITION
The orders denying father reunification services and
deeming him an alleged father are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
I concur:
MOOR, J.
10
In re Isaiah N.
B319548
BAKER, Acting P. J., Concurring
The opinion for the court reaches the correct result. S.N.’s
challenge to the juvenile court’s determination that he is an
alleged father was waived. (See generally Lynch v. California
Coastal Com. (2017) 3 Cal.5th 470, 475 [“‘“waiver” means the
intentional relinquishment or abandonment of a known right’”].)
The juvenile court’s decision to deny S.N. reunification services is
supported by substantial evidence apart from the effect of the
court’s alleged father determination. There was also no Indian
Child Welfare Act error. (In re A.C. (2022) 86 Cal.App.5th 130,
132 (dis. opn. of Baker, J.); In re Ezequiel G. (2022) 81
Cal.App.5th 984; In re H.V. (2022) 75 Cal.App.5th 433, 439 (dis.
opn. of Baker, J.).)
BAKER, Acting P. J.