J.h., a minor, by his next friend Belinda Kirk, mother of J.H., individually v. YOLANDA BALDOVINOSRE, Agency Director;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
J.H., a minor, by his next friend Belinda
Kirk, mother of J.H., individually and as
next friend and BELINDA A. KIRK,
Petitioners - Appellants,
v.
YOLANDA BALDOVINOSRE, Agency
Director; et al.,
Respondents - Appellees.
No. 12-15372
D.C. No. 5:10-cv-02507-LHK
MEMORANDUM*
BELINDA A. KIRK, individually and as
next friend for J.H., a minor,
Plaintiff - Appellant,
v.
COUNTY OF ALAMEDA; et al.,
Defendants - Appellees.
No. 12-16242
D.C. No. 5:10-cv-05797-LHK
FILED
JUL 28 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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In re: IN THE MATTER OF J.H., a minor,
BELINDA K., mother of J.H.,
Petitioner-cross-respondent -
Appellant,
v.
LORI JONES, Co-Director; et al.,
Respondents-cross-petitioners
- Appellees.
No. 12-16411
D.C. No. 5:12-cv-00802-LHK
Appeal from the United States District Court
for the Northern District of California
Lucy Koh, District Judge, Presiding
Submitted May 9, 2014 **
San Francisco, California
Before: D.W. NELSON, LEAVY, and THOMAS, Circuit Judges.
Belinda K. (“Belinda”), mother of J.H., an Indian child, appeals the district
court’s grant of summary judgment to appellees (“the County”) in her Indian Child
Welfare Act (“ICWA”) petition; the court’s grant of the County’s motion to
dismiss her 42 U.S.C. § 1983 action; and its decision to remand her removal action.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2

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Because the parties are familiar with the history of this case, we need not recount it
here. We affirm the district court.
I
Belinda argues the district court erred by basing its rejection of her ICWA
petition in part on hearsay declarations that violate her Sixth Amendment
confrontation rights. She argues that any California statutes that allow for the
admission of hearsay statements in juvenile proceedings violate the Sixth
Amendment, as well. We disagree.
First, as the district court correctly noted in its denial of Belinda’s motion for
reconsideration, Belinda waived this issue by failing to object to these declarations
below. Pfingston v. Ronan Eng’g Co., 284 F.3d 999, 1003-04 (9th Cir. 2002)
(noting that this court will generally “not review issues raised for the first time on
appeal,” including new evidentiary arguments on appeal from a summary judgment
order); Novato Fire Prot. Dist. v. United States, 181 F.3d 1135, 1141 n.6 (9th Cir.
1999) (noting that a district court has discretion not to consider an issue first raised
in a motion for reconsideration and that, similarly, failing to raise an issue at the
summary judgment stage, but raising it in a reconsideration motion, waives any
right to bring the argument on appeal).
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Moreover, to the extent Belinda bases her challenge in this civil action on
the Sixth Amendment, “[t]he protections provided by the Sixth Amendment are
explicitly confined to criminal prosecutions.” Austin v. United States, 509 U.S.
602, 608 (1993) (internal quotation marks omitted).
Belinda also argues that the district court erred in rejecting her ineffective
assistance of counsel claim. Specifically, she contends that when the court applied
the two prongs of Strickland v. Washington, 466 U.S. 668 (1984), it erred in failing
to apply the presumption of prejudice found in United States v. Cronic, 466 U.S.
648 (1984).
The district court did not err in its conclusion regarding Cronic. Assuming
without deciding that the presumption in Cronic applies in a juvenile dependency
proceeding, counsel’s performance was not “so egregiously prejudicial” that the
adversarial process broke down such that the prejudice presumption should apply.
United States v. Swanson, 943 F.2d 1070, 1072 (9th Cir. 1991). Because the
district court did not err in its reliance on certain declarations and in its assessment
of Belinda’s ineffective assistance argument, we affirm the district court as to her
ICWA claim.
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II
Although the caption of her consolidated brief indicates she is also appealing
the district court’s dismissal of her § 1983 action and remand of her removal
action, Belinda’s brief contains no argument as to these appeals. As a result, we
will not consider them and affirm the district court. Indep. Towers of Wash. v.
Washington, 350 F.3d 925, 929 (9th Cir. 2003) (“Our circuit has repeatedly
admonished that we cannot manufacture arguments for an appellant and therefore
we will not consider any claims that were not actually argued in appellant’s
opening brief.” (internal quotation marks omitted)).
AFFIRMED.
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