Filed 6/21/23 In re A.B. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re A.B. et al., Persons Coming Under
the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES, E080333
Plaintiff and Respondent, (Super.Ct.No. SWJ2200251)
v. OPINION
C.Z.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Michael J. Rushton,
Judge. Affirmed.
Marissa Coffey, under appointment by the Court of Appeal, for Defendant and
Appellant.
Minh C. Tran, County Counsel, Teresa K.B. Beecham and Julie K. Jarvi, Deputy
County Counsel for Plaintiff and Respondent.
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Defendant and appellant C.Z. (Mother) and R.N.1 (Father; collectively, Parents)
are the parents of D.N. (male, born May 2022; hereafter minor). Mother appeals from the
juvenile court’s finding that the Indian2 Child Welfare Act of 1978 (ICWA) did not apply
to minor. For the reasons set forth post, we affirm the juvenile court’s orders and
findings.
FACTUAL AND PROCEDURAL HISTORY3
On May 22, 2022, the Riverside County Department of Public Social Services (the
Department) received an immediate response referral with allegations of general neglect.
Mother gave birth to minor in May 2022, at 29 weeks and five days gestation; he
weighed one pound and 10.6 ounces. Minor was in the Neonatal Intensive Care Unit
(NICU) and was to remain in the hospital for six to eight weeks.
A social worker went to the hospital and learned that Mother had tested positive
for amphetamine and methamphetamine at delivery. When the social worker spoke with
Mother at the hospital, she told the social worker that “she has no Native American
ancestry.”
On May 25, 2022, a court issued a protective custody warrant to remove minor.
1 Father is not a party to this appeal.
2 “[B]ecause ICWA uses the term ‘Indian,’ we do the same for consistency, even
though we recognize that other terms, such as ‘Native American’ or ‘indigenous,’ are
preferred by many.” (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1.)
3 We will concentrate on the facts and procedural history that pertain to ICWA.
2
On May 26, 2022, the Department filed a petition on behalf of minor and A.B.4
pursuant to Welfare and Institutions Code5 section 300, subdivisions (b)(1) and (g).
According to the ICWA-010(A) attached to the section 300 petition, the social worker
noted that she asked Parents about minor’s Indian status and they gave her “no reason to
believe the child is or may be an Indian child.”
At the detention hearing on May 27, 2022, the juvenile court quashed the
previously issued protective custody warrant. Moreover, the court found that Father was
an alleged father pending a DNA test. The court also found that a sufficient inquiry was
made regarding whether minor may have Indian ancestry. The court found that ICWA
did not apply to the proceedings. The court then ordered Parents to disclose “the names,
residency, and any known identifying information of any maternal or paternal relatives to
[minor].” The court detained minor and found that he came within section 300,
subdivisions (b) and (g).
On May 27, 2022, on the ICWA-020 forms, both Mother and Father declared they
did not have Native American ancestry.
In the jurisdiction and disposition report filed on June 22, 2022, the social worker
noted that ICWA “may apply” because on June 20, 2022, Father reported that “he may
4 A.B. is not part of this appeal.
5 All further statutory references are to the Welfare and Institutions Code unless
otherwise specified.
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have Native American ancestry, specifically, [“Blackfoot”]6Indian, through his paternal
grandmother who is now deceased. However, he is unaware if any family members were
registered with the tribe.” The report also noted that minor remained in the NICU and his
discharge date was unknown.
In an addendum report filed on July 26, 2022, the social worker stated that minor
was placed with the maternal grandmother on August 1, 2022. The social worker’s
attempts to contact Father were unsuccessful; his phone no longer worked. Moreover,
Father missed his paternity test.
At the contested jurisdiction hearing on October 17, 2022, the juvenile court found
that ICWA did not apply and minor was not an Indian child. The juvenile court struck
the g-1 allegation; found true the section 300, subdivision (b), allegations; adjudged
minor as dependent of the court, removed minor from Parents’ care, and provided Mother
with reunification services. The court also found Father to be an alleged father, and that
he was not entitled to reunification services.
On December 8, 2022, Mother filed a timely notice of appeal.
DISCUSSION
Mother contends that “the juvenile court erred in finding that the ICWA did not
apply, requiring a conditional affirmance of the jurisdictional/dispositional judgment and
remand for proper inquiry and/or noticing under the ICWA.”
6 We place “Blackfoot” in quotation marks because “there is frequently confusion
between the Blackfeet tribe, which is federally recognized, and the related Blackfoot tribe
which is found in Canada and thus not entitled to notice of dependency proceedings.” (In
re L.S. (2014) 230 Cal.App.4th 1183, 1198.)
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A. LEGAL BACKGROUND
Under ICWA, the juvenile court and CFS have an “ ‘an affirmative and continuing
duty to inquire’ whether a child in a dependency proceeding ‘is or may be an Indian
child.’ ” (In re Ricky R. (2022) 82 Cal.App.5th 671, 678, quoting § 224.2, subd. (a).)
“The duty to inquire consists of two phases—the duty of initial inquiry and the duty of
further inquiry.” (Ibid.)
Initially, the county welfare department must ask the “child, parents, legal
guardian, Indian custodian, extended family members, others who have an interest in the
child, and the party reporting child abuse or neglect, whether the child is, or may be, an
Indian child and where the child, the parents, or Indian custodian is domiciled.” (§ 224.2,
subd. (b).) At the parties’ first appearance before the juvenile court, the court must ask
“each participant present in the hearing whether the participant knows or has reason to
know that the child is an Indian child” (§ 224.2, subd. (c), italics added), and “[o]rder the
parent . . . to complete Parental Notification of Indian Status ([Cal. Judicial Council]
form ICWA-020).” (Cal. Rules of Court, rule 5.481(a)(2)(C).)
Thereafter, when there exists a reason to believe that an Indian child is involved,
the social worker must “make further inquiry regarding the possible Indian status of the
child.” (§ 224.2, subd. (e).)
“On appeal, we review the juvenile court’s ICWA findings for substantial
evidence. [Citations.] But where the facts are undisputed, we independently determine
whether ICWA’s requirements have been satisfied.” (In re D.S. (2020) 46 Cal.App.5th
1041, 1051.)
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B. INITIAL INQUIRY UNDER ICWA
Under section 224.2, subdivision (b), the county welfare department must ask the
“child, parents, legal guardian, Indian custodian, extended family members, . . . , whether
the child is, or may be, an Indian child.” (§ 224.2, subd. (b).)
Here, as provided ante, minor was not “placed into the temporary custody of a
county welfare department pursuant to section 306.” (§ 224.2, subd. (b).) Instead, minor
was taken into protective custody via a “Protective Custody Warrant Removal” (all caps
and boldface omitted) under section 340.
In In re Robert F. (2023) 90 Cal.App.5th 492 (Robert F.), this court held that
“[s]ubdivision (b) of section 224.2 requires a county welfare department to ask extended
family members about a child’s Indian status only if the department has taken the child
into temporary custody under section 306.” Moreover, on May 17, 2023, this court again
held that “CFS must ask extended family members and others . . . only if that child has
been placed into CFS’s temporary custody pursuant to section 306.” (In re Ja.O. (2023)
91 Cal.App.5th 672, 667-668.) This court went on to state that “[t]he expanded duty of
initial inquiry under subdivision (b) of section 224.2 . . . does not apply” when a child is
taken into protective custody pursuant to a warrant under section 340, subdivision (b).
(Id. at p. 679.)
In this case, because minor was detained after the Department obtained a detention
warrant, not under the authority of section 306, the expanded duty of initial inquiry under
section 224.2, subdivision (b), does not apply. (In re Ja.O., supra, 91 Cal.App.5th at p.
679.)
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In Mother’s reply brief, Mother concedes that “[u]nder In re Robert F., the
Department was not obligated to make inquiry of extended relatives regarding the
family’s American Indian heritage given that [the child] was taken into protective
custody via a warrant.”
C. FURTHER INQUIRY UNDER ICWA
On appeal, Mother contends that the Department failed to conduct a further
inquiry into Father’s claim that he may have Native American heritage under section
224.2, subdivision (e). In the jurisdiction and disposition report, the social worker noted
that ICWA may apply, and Father “reported he may have Native American ancestry,
specifically, [“]Blackfoot[”] Indian, through his paternal grandmother who is now
deceased.”
Section 224.2, subdivision (e)(1), states that there is a “reason to believe” an
Indian child is involved in a proceeding when “the court, social worker, or probation
officer has information suggesting that either the parent of the child or the child is a
member or may be eligible for membership in an Indian tribe.”
However, in this case, a further inquiry was not required because Father was an
alleged father; he had not signed the birth certificate and his counsel requested that the
court find Father to be an “alleged” father of minor. To date, Father had failed to submit
a paternity test to determine if he is minor’s father.
As an alleged father, Father does not quality as a “parent” for purposes of ICWA.
ICWA defines a parent as “ ‘any biological parent or parents of an Indian child or any
Indian person who has lawfully adopted an Indian child . . . . It does not include the
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unwed father where paternity has not been acknowledged or established.’ ” (In re C.A.
(2018) 24 Cal.App.5th 511, 520.)
Moreover, “[a]n alleged father may or may not have any biological connection to
the child. Until biological paternity is established, an alleged father’s claims of Indian
heritage do not trigger any ICWA notice requirement because, absent a biological
connection, the child cannot claim Indian heritage through the alleged father. . . . [U]ntil
biological paternity is established for an alleged father who claims Indian heritage,
neither the court nor the social worker knows or has reason to know that an Indian child
is involved and notice requirements are not activated.” (In re E.G. (2009) 170
Cal.App.4th 1530, 1533.)
In this case, Mother agrees with the Department that Father is an alleged father,
not a presumed or biological father. Therefore, the notice provisions under ICWA does
not apply to him at this time. Hence, no further inquiry under ICWA was required.
DISPOSITION
The juvenile court’s findings and orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
McKINSTER
Acting P. J.
FIELDS
J.
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