Filed 5/8/17 In re G.M. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re G.M., a Person Coming Under the
Juvenile Court Law.
ORANGE COUNTY SOCIAL SERVICES
AGENCY,
Plaintiff and Respondent,
v.
H.M.,
Defendant and Appellant.
G053980
(Super. Ct. No. DP022582-002)
O P I N I O N
Appeal from an order of the Superior Court of Orange County,
Dennis J. Keough, Judge. Affirmed.
Elizabeth Klippi, under appointment by the Court of Appeal, for Defendant
and Appellant.
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Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su,
Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Minor.
* * *
INTRODUCTION
H.M. (Mother) appeals from an order terminating her parental rights over
her son, now 16-year-old G.M. She contends the juvenile court erred by denying her
visitation before the permanency hearing and by determining that the Indian Child
Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) did not apply.
We affirm. Mother’s submission in the juvenile court on the visitation
order and failure to object to it when it was made or at any time leading up to or during
the permanency hearing, resulted in a forfeiture, preventing Mother from raising that
issue on appeal. There is no evidence the juvenile court erred in finding ICWA
inapplicable to G.M.
BACKGROUND
I.
THE JUVENILE DEPENDENCY PETITION
In January 2015, the Orange County Social Services Agency (SSA) filed a
juvenile dependency petition on behalf of then 13-year-old G.M., alleging he came within
the jurisdiction of the juvenile court under Welfare and Institutions Code section 300,
subdivisions (b) (failure to protect) and (g) (no provision for support).
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The petition
alleged that on January 18, law enforcement found Mother and G.M. sleeping inside of a
stolen U-Haul truck, in which they, along with Mother’s boyfriend, had been living.


1
All further statutory references are to the Welfare and Institutions Code.
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Mother was arrested for grand theft of an automobile and vehicle theft, and also on an
outstanding warrant. G.M was taken into protective custody.
The petition alleged that Mother, who had a criminal history and history of
substance abuse, not only failed to provide G.M. shelter, but failed to ensure he attended
school regularly. G.M. reported he did not attend school because he was unable to sleep
at night due to fighting between Mother and her boyfriend. Mother and her boyfriend
had also engaged in domestic violence in G.M.’s presence.
The petition further alleged that previously, in 2012, G.M. had been taken
into protective custody. The juvenile court sustained a juvenile dependency petition
alleging that Mother had been arrested and incarcerated for possessing a controlled
substance for sale and for possessing unlawful paraphernalia. Mother had left G.M. in
the care of an “inappropriate caretaker” on the same day Mother was arrested. Police
found G.M. “standing watch” while the caretaker committed residential burglary. After
completing a 60-day trial visit with Mother, and after Mother had participated in family
reunification services, including drug treatment, drug testing, and counseling, G.M. was
returned to Mother’s custody under a plan of family maintenance. In December 2013,
dependency jurisdiction was terminated.
R.S., G.M.’s alleged father,2
had a criminal history and history of substance
abuse. His whereabouts were unknown.
The petition also alleged G.M. “may have Indian ancestry.”
II.
ICWA
R.S. informed SSA that he did not have any American Indian ancestry.
Although Mother initially informed a social worker that she did not have any American
Indian ancestry, at the January 22 detention hearing, Mother stated she might have


2
R.S. is not a party to this appeal. He is only referred to for purposes of providing
background information relevant to the issues presented.
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Cherokee heritage and possibly American Indian ancestry through another tribe as well.
The juvenile court asked Mother, who would be most knowledgeable within her family
with regard to potential American Indian heritage. Mother responded that her father was
most knowledgeable. The court asked for his contact information, but Mother said that
she had difficulty reaching him and offered her brother’s name as a second option. The
court directed SSA to follow up and continue investigating possible American Indian
heritage and to provide notice to the appropriate Cherokee tribe and the Bureau of Indian
Affairs.
In February 2015, a social worker interviewed Mother’s father on the
telephone, who stated that his mother possibly had Cherokee heritage; his mother had
passed away in 1985 in Kentucky. SSA prepared the “Notice of Child Custody
Proceeding for Indian Child” (Judicial Council form ICWA-030) containing the gathered
information. On February 10, “notice by certified mail, return receipt requested was sent
to the following: the Secretary of the Interior, Sacramento Area Director of the BIA.”
The social worker, who prepared the form, declared she included all the information that
she had about G.M.’s relatives. The ICWA-030 form and some of the certified mail
return receipts were filed with the court.
III.
THE JUVENILE COURT SUSTAINS THE PETITION AND ORDERS REUNIFICATION
SERVICES; G.M. REFUSES TO VISIT MOTHER WHEN SHE IS INCARCERATED;
MOTHER’S PROGRESS ON HER CASE PLAN IS MINIMAL.
In March 2015, at the jurisdiction and disposition hearing, Mother
submitted on the allegations of the petition. The juvenile court sustained the petition,
declared G.M. a dependent child of the juvenile court, vested custody of G.M. with SSA,
and ordered family reunification services and visitation.
SSA filed additional certified mail return receipts from the Bureau of
Indian Affairs, the Secretary of the Interior, and the Eastern Band of Cherokee Indians.
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The United Keetoowah Band of Cherokee Indians in Oklahoma sent a letter dated
February 18, 2015, stating that based on the information provided, a search of enrollment
records was conducted and “[t]here is no evidence that supports the above referenced
child(ren) is/are descendents from anyone on the Keetoowah Roll.”
In March 2015, G.M. was placed in the home of one of his teachers and his
wife, who have since provided G.M. a loving and nurturing home.
Also in March 2015, Mother was arrested after an altercation with her
boyfriend and being found with drugs in her sock. She was homeless without income
except for food stamps. G.M. refused to visit Mother while she was incarcerated in
March and April. Visits resumed after Mother was released from jail and entered a
residential treatment center. Mother was able to resume her full six hours of supervised
visitation with G.M. after she exited the residential treatment center on June 6.
In August 2015, SSA reported Mother’s progress on her case plan had been
“minimal” (capitalization omitted) as she had not actively participated in services and
was hard to contact. SSA reported appropriate interactions between Mother and G.M.
during visits. However, Mother was often observed during visits to take frequent
restroom breaks, “being on her phone,” nodding off, and leaving for periods of time for
the purpose of getting food. Mother also had difficulty honoring the phone contact
schedule. She called at inappropriate times and had, on at least one occasion, called G.M.
to ask him to “bring/buy her things, from food to office supplies to clothes.” Although
Mother expressed the desire to have G.M. back in her custody, G.M. expressed his wish
to remain in his placement until Mother proved she was sober and had stable housing.
Meanwhile, G.M. thrived in his placement in which he was treated like part of the family.
He received good grades and participated in extracurricular activities.
At the sixth-month review hearing on August 24, 2015, in addition to
ordering further reunification services for Mother, the juvenile court found ICWA did not
apply.
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IV.
AFTER MOTHER IS AGAIN INCARCERATED, G.M. REFUSES FURTHER
CONTACT WITH HER AND HIS THERAPIST OPINES THAT FURTHER CONTACT
WOULD BE DETRIMENTAL TO G.M.
In December 2015, SSA filed an ex parte application for the purpose of
informing the juvenile court of developments regarding visitation between Mother and
G.M. Due to probation violations involving the failure to check in and report her
whereabouts, Mother was incarcerated from September 1 to October 1, 2015. G.M.
stated he did not want to visit or have phone calls with Mother while she was in jail. He
began to process with his therapist his feelings about Mother going in and out of jail and
Mother’s lack of follow through with probation and SSA. G.M. came to the conclusion
that he did not want any phone contact or visitation with Mother until she proved she was
sober and stable for two years. G.M. explained he did not want to put himself back into
the situation with Mother when she was homeless, using drugs, and involved in domestic
violence. G.M. stated he was doing well in his new environment, getting all A’s in
school, and beginning to feel he could have a normal life. SSA explained to G.M. that
visitation and contacts with Mother were court ordered. G.M. said he understood that but
reiterated he was refusing contact with Mother.
G.M.’s therapist confirmed to SSA that G.M. had expressed his feelings
about contacts with and reunification with Mother. The therapist stated that she
supported G.M.’s decision not to have contact with Mother at that time. She further
stated that whereas G.M. had been previously guarded and afraid to speak up, “G[.M.]
has begun to have a voice for himself and is able to trust people including his current
caregivers.” The therapist stated that continued contact with Mother would be
emotionally damaging to G.M.
The assigned social worker informed Mother of G.M.’s refusal to have
visits or contact with her. Mother said that “while she was extremely upset by this, she
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understands why [G.M.] would feel this way.” The social worker informed Mother that
reunification services, however, would continue until the court ordered otherwise.
V.
THE JUVENILE COURT TERMINATES REUNIFICATION SERVICES, SETS A PERMANENCY
HEARING, AND REVISES THE VISITATION ORDER WITHOUT OBJECTION.
In February 2016, in the 12-month status review report, SSA recommended
terminating reunification services and setting a permanency hearing. The report noted
that Mother was authorized to have six hours of supervised visitation with G.M. each
week. Their last visit was August 20, 2015, before Mother’s incarceration and G.M. had
since refused all visitation and other forms of contact with Mother. G.M. further
expressed he desired to remain in his placement under a permanent plan of legal
guardianship.
At the hearing, Mother’s counsel requested the opportunity to make a
statement for the record: “I just want the record to reflect mother was here. We did
discuss the case quite thoroughly with her. She understands the matter going to a
permanency planning hearing and that official reunification services are going to be
terminated. She accepts that and authorized my office to appear on her behalf.”
Mother’s counsel stated later: “As the court will notice on the third page of
the three-page stipulation, which my office submitted on,
[3]
it indicates that therapy to
remain and visits between the child and the mother only to take place in a therapeutic
setting with input by the child and therapist. [¶] I discussed this with mother. The young
man, who is an outstanding young man, is angry at his mother and hadn’t visited since
August. So I explained to the mother we could put mechanics into place that would leave
the door open for an ice breaker if the young man would see his way clear to it in a


3
The stipulation, which Mother’s counsel referred to and submitted on, stated in part:
“[T]herapy to remain and visits between child and the mother only to take place with
input of child & therapist and in a therap[e]utic setting.” The stipulation also requested
the court order Mother’s reunification services terminated and set a permanency hearing.
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therapeutic setting. [¶] In addition, I informed mother it would be proper for her to write
cards and letters and gifts and send them to the social worker in a chance, once again, to
establish a relationship with her son. I think the intent of line 35 would be in essence—
and it’s not clear here—I’d request that if the young man does want to see his mother in a
therapeutic setting that it would be in the nature of a co[n]joint counseling. And I
wouldn’t want the stipulation to be absent that authority. [¶] And I’ll give counsel an
opportunity to object, but I think if those mechanics are in place, it would be in the
child’s best interests. [¶] So I’d ask for the court to authorize co[n]joint therapy after the
child’s therapist concurs that the case can proceed in that direction.” No objections were
made to Mother’s counsel’s request that the juvenile court authorize conjoint therapy if
circumstances permitted.
The court terminated reunification services and set a permanency hearing.
As to visitation, the court announced the following was its indicated ruling: “The court
would approve the case plan and the visitation plan with the following amendment, that
therapy—the therapeutic intervention for the child is to remain, and that visits between
the mother and child are to take place with the input of the child and the therapist in a
therapeutic setting, and the court would specifically note that the court would also
authorize conjoint counseling and therapy between the mother and child as the therapist
would deem appropriate and advisable, and the court would authorize funding for such.
[¶] The court would also authorize S.S.A. to liberalize or restrict visitation or visitation
protocols generally as may be needed to meet the fluidity of circumstances. Should any
party be aggrieved by the exercise of such discretion, the matter can be moved before the
court ex parte. [¶] The court would also specifically authorize the expression of written
sentiments, cards, letters, provisions of appropriate gifts, to the social worker for—for
them to be passed on to the child and/or discussed in the therapeutic setting as would be
appropriate. [¶] And in fact, the court would direct that any therapeutic—cards or letters
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be discussed in a therapeutic setting with—with the child and the therapist.” (Italics
added.)
The court invited comments and/or argument from counsel regarding the
indicated ruling on visitation. Mother’s counsel stated: “We concur, Your Honor.”
VI.
THE JUVENILE COURT TERMINATES PARENTAL RIGHTS AND MOTHER APPEALS.
At the permanency hearing, the juvenile court found it likely G.M. would
be adopted and that adoption was in his best interest. The court terminated parental rights
as to Mother and R.S. and placed G.M. for adoption. Mother appealed.
DISCUSSION
I.
MOTHER FORFEITED HER ARGUMENT THE VISITATION ORDER WAS
ERRONEOUSLY MADE.
In her opening brief, Mother argues her “due process rights were violated
when her visitation with G[.M.] was denied in the crucial time period before the
section 366.26 hearing and that violation compromised her ability to establish the
beneficial parent-child bond exception and file a section 388 petition.” (Boldface &
underscoring omitted.) She further argues, “the court improperly allowed G[.M.] ‘veto’
power over his visitation with [Mother], resulting in [Mother]’s inability to litigate the
beneficial parent-child bond exception or file a section 388 petition.”
We do not need to address whether the juvenile court’s visitation order
contained error because Mother forfeited her right to challenge it when she submitted on
SSA’s recommendation and the court’s indicated ruling at the hearing at which the
visitation order was made and failed to object to it. Over 22 years ago, the appellate
court in In re Richard K. determined a parent’s submission on the social worker’s
recommendation constituted acquiescence in or yielding to the social worker’s
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recommended findings and orders, as distinguished from mere submission on the report
itself. (In re Richard K. (1994) 25 Cal.App.4th 580, 589.) “The mother’s submittal on
the recommendation dispels any challenge to and, in essence, endorses the court’s
issuance of the recommended findings and orders.” (Ibid.) “If, as occurred in this case,
the court in turn makes the recommended orders, the party who submits on the
recommendation should not be heard to complain. As a general rule, a party is precluded
from urging on appeal any point not raised in the trial court. Any other rule would permit
a party to play fast and loose with the administration of justice by deliberately standing
by without making an objection of which he is aware.” (Id. at pp. 589-590.) Thus, in In
re Richard K., the court held, “by submitting on the recommendation without introducing
any evidence or offering any argument, the parent waived her right to contest the juvenile
court’s disposition since it coincided with the social worker’s recommendation. He who
consents to an act is not wronged by it.” (Id. at p. 590.)
“‘Appellate courts are loath to reverse a judgment on grounds that the
opposing party did not have an opportunity to argue and the trial court did not have an
opportunity to consider. [Citation.] In our adversarial system, each party has the
obligation to raise any issue or infirmity that might subject the ensuing judgment to
attack.’” (Natkin v. California Unemployment Ins. Appeals Bd. (2013) 219 Cal.App.4th
997, 1011.) “‘“The purpose of this rule is to encourage parties to bring errors to the
attention of the trial court, so that they may be corrected.” [Citation.]’” (Ibid.) “Issues
presented on appeal must actually be litigated in the trial court—not simply mentioned in
passing.” (Ibid.) Therefore, a “party who fails to alert the trial court to an issue that has
been left unresolved forfeits the right to raise that issue on appeal.” (Araiza v. Younkin
(2010) 188 Cal.App.4th 1120, 1127.)
Here, the record is replete with examples of Mother acquiescing to the
effect of the visitation order she now challenges. SSA’s December 2015 ex parte
application stated that after a social worker informed Mother that G.M. refused to have
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contact with Mother, Mother responded that although she was extremely upset, she
understood. At the 12-month review hearing, at which Mother was present, her counsel
confirmed he, on Mother’s behalf, had stipulated to SSA’s recommendation that
visitation occur only in a therapeutic setting with input by G.M. and his therapist,
provided conjoint therapy be authorized by the court if the therapist “concurs that the
case can proceed in that direction.” The juvenile court thereafter issued its indicated
ruling “that visits between the mother and child are to take place with the input of the
child and the therapist in a therapeutic setting” and that conjoint counseling and therapy
were authorized as deemed appropriate and advisable by the therapist. In response to the
court’s invitation for comments or argument regarding the visitation order in the court’s
indicated ruling, Mother’s counsel stated, “[w]e concur, Your Honor.”
The court’s order also provided that SSA was authorized to liberalize or
restrict visitation as needed “to meet the fluidity of the circumstances” but “[s]hould any
party be aggrieved by the exercise of such discretion, the matter can be moved before the
court ex parte.” The record does not show Mother ever objected to the visitation
arrangement from the date of this order through the permanency hearing, much less took
advantage of the court’s invitation to apply ex parte to challenge it.
Nor did Mother argue at the permanency hearing that her right to visitation
had been wrongly impeded. At the hearing, her attorney informed the court that Mother
wished to testify, which consisted of the following:
“By [Mother’s counsel]:
“Q Good afternoon. I have a few questions for you today. That’s all I
would have. Number one, regarding your son G[.M.], he is age 15; correct?
“A That’s correct.
“Q All right. Now, is it correct that you’ve decided not to call him as a
witness in this matter because it was too stressful for him?
“A Absolutely.
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“Q And when was your last visit, approximately?
“A August 2015.
“Q You understand at this point in time that he does want to be adopted?
“A I do.
“Q Okay. Do you want what’s best for G[.M.]?
“A Absolutely.
“Q Are you living a clean and sober life at this time?
“A Yes, I am.
“Q Is this—do you hope that sometime in the future you and he might be
reconciled?
“A I wish it every day.
“Q And you love him?
“A With all my heart.
“Q Is it correct you understand the mistakes you’ve made in the past?
“A Yes.
“Q Okay. [¶] . . . [¶]
“By [Mother’s counsel]:
“Q Is part of the reason you’re here is you want him to know that you
haven’t given up on him?
“A Yes.
“Q Okay.
“A I will never give up on him.
“Q All right.
“[Mother’s counsel]: Thank you. I don’t have anything else.”
No other party had questions for Mother. Mother’s counsel rested his case
and submitted on the finding of G.M.’s adoptability. The juvenile court commended
Mother for putting G.M.’s welfare ahead of her desires and wishes.
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Mother’s concurrence through counsel to the court’s visitation order and
her failure to object to its effect at any time through to the permanency hearing are fatal
to her argument. There was no evidence that visitation could have occurred after the
12-month review hearing and before the permanency hearing, which would not cause
undue risk of harm to G.M.’s emotional well-being and the progress he had made in
therapy. Contrary to Mother’s argument, the effect of the court’s visitation order did not
give G.M. veto power over contact with Mother or wrongfully delegate discretion to
G.M.’s therapist regarding visitation. The court’s order to restrict visitation was
supported by G.M.’s therapist’s opinion that continued contact with Mother at that point
in time would be emotionally damaging to G.M. The record shows that Mother
understood and accepted that circumstance.
Mother argues her counsel provided ineffective assistance because he
“failed to bring to the court’s attention the Agency’s refusal to abide by the visitation
order made in February 2016 at the 12-month review hearing.” (Boldface &
underscoring omitted.) To prevail on a claim of ineffective assistance of counsel, Mother
must prove (1) her trial counsel’s representation was deficient, in that it fell below an
objective standard of reasonableness under prevailing professional standards; and (2) her
trial counsel’s deficient representation caused her prejudice. (Strickland v. Washington
(1984) 466 U.S. 668, 688, 694; In re Emilye A. (1992) 9 Cal.App.4th 1695, 1711.)
Mother argues she did not have a single visit with G.M. in the six-month
period after the 12-month review hearing and before the permanency hearing, and, thus,
her counsel was ineffective by failing to appear ex parte to demand visitation. The
juvenile court’s visitation order did not require that visits occur automatically, but upon
certain conditions, including they occur “with the input of the child and the therapist in a
therapeutic setting.” Nothing in the record shows that G.M. was emotionally ready to
resume contact with Mother in that time period. The record simply does not support
Mother’s contention that her counsel was ineffective for failing to demand visitation at
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that time. Furthermore, Mother was present at the 12-month review hearing and the
permanency hearing at each of which it appeared Mother’s counsel was carrying out her
wishes.
II.
SUBSTANTIAL EVIDENCE SUPPORTED THE JUVENILE COURT’S FINDING
ICWA DID NOT APPLY.
Mother also argues the juvenile court erred by finding ICWA did not apply
“because the notice sent to the Cherokee tribes did not contain the mandatory
biographical information . . . , and such information was likely available to the social
worker.” (Boldface & underscoring omitted.) “We review the trial court’s findings
whether proper notice was given under ICWA and whether ICWA applies to the
proceedings for substantial evidence. [Citation.]” (In re D.N. (2013) 218 Cal.App.4th
1246, 1251.)
Substantial evidence supported the juvenile court’s finding that ICWA did
not apply. The record shows SSA interviewed Mother’s father to follow up on the
possibility of G.M.’s American Indian heritage. Mother’s father said that his late mother
might have had Cherokee ancestry. SSA collected the information he provided and gave
notice to the Secretary of the Interior and the Sacramento area director of the Bureau of
Indian Affairs, using the ICWA-030 form. The form contained information about Mother
and R.S., including that Mother was born in Lexington, Kentucky, in 1964; Mother’s
father’s name, place and date of birth, and possible Cherokee heritage; and Mother’s
grandmother’s name, place and date of birth, place and date of death, and possible
Cherokee heritage. Mother does not contend that any other members of her family
should have been identified on the form.
The record contains green card receipts from the United Keetoowah Band
of Cherokee Indians, the Cherokee Nation of Oklahoma, Mother, the Bureau of Indian
Affairs, the Eastern Band of Cherokee Indians, and the Secretary of the Interior. SSA
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received a response letter from the United Keetoowah Band of Cherokee Indians, which
stated in full: “With the information you supplied us, a search of the United Keetoowah
Band of Cherokee Indians in Oklahoma enrollment records was conducted. There is no
evidence that supports the above referenced child(ren) is/are descendents from anyone on
the Keetoowah Roll, therefore[,] I.C.W. of the United Keetoowah Band of Cherokee
Indians in Oklahoma will not intervene in this case.”
Mother argues SSA should have provided additional information on the
ICWA-030 form, such as her father’s current address and any aliases he might have used.
The letter that SSA received from the United Keetoowah Band of Cherokee Indians in
Oklahoma did not suggest that insufficient information was provided for an enrollment
records search to be conducted. The letter stated that a search in fact had been conducted.
SSA was not asked to provide further information. There is nothing to suggest that SSA
failed to provide all the information it had gathered following a reasonable inquiry or that
further inquiry would have yielded additional pertinent information. We find no error.
DISPOSITION
The order is affirmed.
FYBEL, J.
WE CONCUR:
ARONSON, ACTING P. J.
THOMPSON, J.