In re C.M. CA2/2

Filed 12/22/20 In re C.M. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re C.M. et al., Persons B305114
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. No. 19LJJP00878A-E)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
TIFFANY S.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County. Steven E. Ipson, Judge Pro Tempore. Affirmed.
Terence M. Chucas, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Assistant
County Counsel, and Peter A. Ferrera, Principal Deputy County
Counsel, for Plaintiff and Respondent.
_________________________
Tiffany S. (mother) contends that the juvenile court’s
jurisdictional and dispositional orders as to two of her five
children, C.M. and K.M., must be reversed because the
Department of Children and Family Services (Department) failed
to adequately comply with its duty of inquiry under the Indian
Child Welfare Act (ICWA) to determine whether they are Indian
children.1 We find no error and affirm.
FACTS
Background
The Department filed applications to take C.M., K.M. and
their half siblings (Half Siblings) into protective custody. At the
detention hearing on December 11, 2019, the juvenile court
determined that Carl M. (Carl) was the alleged father of C.M.
and K.M. “at this time,” and Lewis H. (Lewis) was the presumed
father of the Half Siblings. The juvenile court indicated that the
classification of Carl was pending due diligence on his paternity.
Mother’s counsel did not object to Carl being classified as an
alleged father. The juvenile court ordered the children detained.
1 Only C.M. and K.M. are subjects of this appeal.
2
The Department filed a Welfare and Institutions Code
section 3002 petition on behalf of all five children.
ICWA Matters; Carl’s Parentage
Mother and Lewis submitted forms indicating they do not
have Indian ancestry. The juvenile court determined that it had
no reason to know that the ICWA applied to the Half Siblings.
Department personnel called Carl and he admitted to being
the biological parent of C.M. and K.M. He said he had
“Blackfoot” ancestry through both of his parents, provided the
social worker with the paternal grandmother’s name and
telephone number, and stated that the paternal grandfather
could not be contacted because he was in a senior facility. The
social worker left a voicemail for the paternal grandmother but
did not get a call back.
On January 14, 2020, mother informed an investigator that
Carl was listed on C.M.’s and K.M.’s birth certificates. She
reported that Carl called to check on C.M. and K.M. one or two
times a year, and that he had last called them approximately five
months before.
On January 22, 2020, the Department sent notices of C.M.’s
and K.M.’s dependency case to the Bureau of Indian Affairs, the
Secretary of the Interior and the Blackfeet Tribe of Montana.
The notices contained mother’s and Carl’s names, addresses, and
dates and places of birth. They also contained the name and date
of birth of the paternal grandmother along with the name of the
paternal grandfather. The notices were received on January 27
and January 28, 2020.
2 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
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The Jurisdictional and Dispositional Orders
On February 10, 2020, the juvenile court sustained three
section 300, subdivision (b) counts in an amended petition filed
by the Department alleging: mother’s five children were at risk
of harm due to: (1) a violent altercation between mother and
Lewis and his arrest for spousal battery; (2) mother’s failure to
protect the children from Lewis; and (3) mother’s and Lewis’s
substance abuse. At the ensuing disposition hearing on
February 25, 2020, the juvenile court reiterated its finding that
Carl was an alleged father and removed the five children from
mother. Mother’s counsel did not object to Carl be classified as
an alleged father.
This appeal followed.
DISCUSSION
Mother argues that Carl is a biological rather than alleged
father, the Department therefore had a continuing duty under
the ICWA to inquire whether C.M. and K.M. were Indian
children, and it failed that duty. The Department counters by
arguing: the ICWA requirements were not triggered because
Carl is an alleged father; mother forfeited her challenge to the
juvenile court’s paternity finding by not objecting below; and,
regardless of Carl’s paternity, he gave the Department no reason
to believe C.M. and K.M. were Indian children.
In the reply, mother argues for the first time, inter alia,
that there was insufficient evidence that Carl was an alleged
father, the Department failed a statutory duty to obtain and file
C.M.’s and K.M.’s birth certificates, and there is a presumption
4
that Carl signed a voluntary declaration of parentage when C.M.
and K.M. were born.3
I. Classifications of Fathers.
California law recognizes that a man can be classified as a
presumed, biological, or alleged father. (In re Zacharia D. (1993)
6 Cal.4th 435, 449–450.) A presumed father is defined by Family
Code section 7611. (In re Jerry P. (2002) 95 Cal.App.4th 793,
802.) “A biological . . . father is one whose biological paternity
has been established, but who has not achieved presumed father
status. . . . [Citations.] A man who may be the father of a child,
but whose biological paternity has not been established, or, in the
alternative, has not achieved presumed father status, is an
‘alleged’ father. [Citation.]” (In re Zacharia D., supra, at p. 449,
fn. 15.)
II. Relevant ICWA Law.
The ICWA applies to any state court proceeding involving
the foster care or adoptive placement of, or the termination of
parental rights to, an Indian child. When a juvenile court has
reason to believe a child is an Indian child, the social services
agency must notify the Indian child’s tribe. A social services
agency has a duty to inquire whether a child is or may be an
3 Also in the reply, mother suggests but does not expressly
argue that Carl was a presumed father. We have not considered
this belated argument because it is not backed by reasoned
argument (Nelson v. Avondale Homeowners Assn. (2009) 172
Cal.App.4th 857, 862), and it is not argued under a separate
heading or subheading (Cal. Rules of Court, rule 8.204(a)(1)(B);
Heavenly Valley v. El Dorado County Bd. of Equalization (2000)
84 Cal.App.4th 1323, 1345, fn. 17).
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Indian child. (In re S.B. (2005) 130 Cal.App.4th 1148, 1156–
1158.) Under the ICWA, an Indian child is defined as an
unmarried person under age 18 who is either (1) a member of an
Indian tribe or (2) eligible for membership in an Indian tribe and
is the biological child of a member of an Indian tribe. A parent is
defined as any biological parent of an Indian child or any Indian
person who has lawfully adopted an Indian child. The definition
of parent does not include an unwed father where paternity has
not been acknowledged or established. (In re C.A. (2018) 24
Cal.App.5th 511, 520.)
When children in a dependency matter have an alleged
father rather than a biological father who claims Indian ancestry,
the ICWA inquiry and notice requirements are not triggered. (In
re Daniel M. (2003) 110 Cal.App.4th 703, 708–709; In re E.G.
(2009) 170 Cal.App.4th 1530, 1533.)
III. Carl’s Classification.
A. Mother May Raise the Classification Issue for the First
Time on Appeal.
The juvenile court found that Carl is the alleged father of
C.M. and K.M., and there was no objection from mother’s counsel.
In her opening brief, mother does not suggest that the juvenile
court erred. She does, however, argue for the first time that the
evidence showed that Carl is a biological father based on the
following: he admitted paternity to the Department, mother said
father was listed on C.M.’s and K.M.’s birth certificates, and the
Department sent out ICWA notices, indicating that it believed
Carl was a biological father. Tacitly, mother requests that we
make a finding of fact.
The Department argues that mother forfeited this claim
because she did not raise it below. (In re S.B. (2004) 32 Cal.4th
61287, 1293 [“a reviewing court ordinarily will not consider a
challenge to a ruling if an objection could have been but was not
made in the trial court”].) In the reply, mother cites In re
Isaiah W. (2016) 1 Cal.5th 1, 13–14 (Isaiah W.), averring that
ICWA notice issues can be raised for the first time on appeal.
The juvenile court in Isaiah W. placed a newborn in foster
care after concluding that the Department did not have to
provide ICWA notice. The mother did not appeal the order. More
than a year later, the juvenile court terminated the mother’s
parental rights. She appealed, arguing that the Department
failed to comply with ICWA’s notice requirements. The reviewing
court stated: “Because ICWA imposes on the juvenile court a
continuing duty to inquire whether the child is an Indian child,
we hold that the parent may challenge a finding of ICWA’s
inapplicability in an appeal from the subsequent order, even if
she did not raise such a challenge in an appeal from the initial
order.” (Isaiah W., supra, 1 Cal.5th at p. 6.) The court quoted a
lower appellate decision as noting that a parent’s inaction does
not constitute a waiver or otherwise preclude appellate review of
ICWA notice. (Id. at p. 13.)
Based on the policy embodied in Isaiah W., we conclude
that the classification issue cannot be separated from the notice
issue. Undeniably, it is Carl’s classification that may trigger the
ICWA. We turn to the merits.
B. Analysis.
1. Tacit Request for Factual Finding.
Mother’s opening brief essentially requests that we make a
finding that Carl is a biological father. She cites no law to
support her request. As the Department points out, it is the role
of the trier of fact rather than a reviewing court to make findings
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of fact. (In re Michael G. (2012) 203 Cal.App.4th 580, 584.) We
decline to find that Carl is a biological parent, as mother urges.
Our analysis could end here.
2. Arguments Raise in the Reply.
Mother’s belated reply arguments—which the Department
has not had an opportunity to respond to in writing—have been
waived. (Wurzl v. Holloway (1996) 46 Cal.App.4th 1740, 1755,
fn. 1.) Even if we were to entertain these arguments, we would
conclude that they lack merit.
a. Sufficiency of the Evidence.
“When a trial court’s factual determination is attacked on
the ground that there is no substantial evidence to sustain it, the
power of an appellate court begins and ends with the
determination as to whether, on the entire record, there is
substantial evidence, contradicted or uncontradicted, which will
support the determination, and when two or more inferences can
reasonably be deduced from the facts, a reviewing court is
without power to substitute its deductions for those of the trial
court. If such substantial evidence be found, it is of no
consequence that the trial court believing other evidence, or
drawing other reasonable inferences, might have reached a
contrary conclusion. [Citations.]” (Bowers v. Bernards (1984) 150
Cal.App.3d 870, 873–874, italics in original.)
Mother argues: “Carl’s status as [C.M.’s and K.M.’s]
biological father was self-evident because [mother], Carl and the
children’s birth certificates stated he was their biological father.”
This argument fails.
“[I]n California an alleged father may acknowledge or
establish paternity by voluntarily signing a declaration of
paternity at the time of the child’s birth, for filing with the birth
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certificate (Fam. Code, § 7571, subd. (a)), or through blood testing
(Fam. Code, § 7551).” (In re Daniel M., supra, 110 Cal.App.4th at
pp. 708–709.)
The record does not contain C.M’s or K.M.’s birth
certificates, a declaration of paternity filed at the time of birth, or
a blood test establishing paternity. Mother offers no argument
that her out of court statements regarding the contents of the
birth certificates was admissible. She has therefore waived any
suggestion otherwise. (Tan v. California Fed. Sav. & Loan Assn.
(1983) 140 Cal.App.3d 800, 811.) We conclude that substantial
evidence supported the juvenile court’s finding that Carl was only
an alleged father.4
b. Birth Certificates.
Mother argues that the Department failed its statutory
duty under section 224.3, subdivision (a)(5)(E) to obtain C.M.’s
and K.M.’s birth certificates. But that statute only provides that
ICWA notice shall include a copy of a child’s birth certificate. It
does not establish that the Department must obtain a birth
certificate to establish paternity. There is no basis to conclude
that the Department’s failure to obtain C.M.’s and K.M.’s birth
certificates warrants reversal.
4 Mother separately argues that the existence of a paternity
declaration must be presumed. She does not enlist this argument
in service of her attack on the sufficiency of the evidence. Nor
does she suggest that there is an intersection between these two
issues. “It is not our responsibility to develop an appellant’s
argument.” (Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100
Cal.App.4th 1190, 1206, fn. 11.)
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c. Declaration of Paternity.
Health and Safety Code section 102425, subdivision (a)(4)
provides that a birth certificate shall not contain the name of an
unwed father unless the woman who gave birth and the father
signed a voluntary declaration of parentage at the hospital before
the birth certificate is submitted for registration. Here, mother
told the Department that Carl’s name was on C.M.’s and K.M.’s
birth certificates. Thus, she contends that we must presume that
she and Carl signed the voluntary declaration of parentage,
noting that it “is presumed that official duty has been regularly
performed.” (Evid. Code, § 664.) Contrary to what mother
suggests, there is no presumption here because there is no
evidence that the relevant members of the hospital staff were
aware that mother and Carl were not married. (In re D.A. (2012)
204 Cal.App.4th 811, 826–827; but see In re Raphael P. (2002) 97
Cal.App.4th 716, 736–739 [applying the presumption in a case in
which the father declared he was given a voluntary declaration of
parentage at the hospital, and in which the birth certificate was
in the court record].)
IV. The ICWA is Inapplicable.
Mother’s appeal is premised on the ICWA being triggered
because Carl was a biological father. She has failed to establish
that the trial court erred in finding that Carl was an alleged
father, or that the Department neglected a duty to establish
Carl’s paternity. Thus, the ICWA was not triggered and the
juvenile court’s order must be affirmed. (In re E.G., supra, 170
Cal.App.4th at p. 1533.)
All other issues are moot.
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DISPOSITION
The jurisdictional and dispositional orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
ASHMANN-GERST
We concur:
________________________, P. J.
LUI
_______________________, J.
HOFFSTADT
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