Filed 8/19/22 In re C.S. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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 THREE

In re C.S., a Person Coming Under the 

Juvenile Court Law.

_____________________________________

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN AND 

FAMILY SERVICES,

Plaintiff and Respondent,

v.

ANDREA S.,

Defendant and Appellant.

B318139

(Los Angeles County

Super. Ct. No. 19LJJP00495A)

APPEAL from an order of the Superior Court of 

Los Angeles County, Stephanie M. Davis, Commissioner. 

Affirmed.

Jesse McGowan, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, 

Assistant County Counsel, Stephen Watson, Deputy County 

Counsel for Plaintiff and Respondent.
2

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Andrea S. (mother) appeals from an order terminating 

parental rights to her son, C.S. Mother contends the Los Angeles 

County Department of Children and Family Services (DCFS) 

failed to adequately investigate the possible Indian ancestry of 

alleged father Kenneth R. in the manner required by the Indian 

Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) and 

related state law. We find no error, and thus we will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I. Petition and detention; mother’s failure to reunify.

C.S. was born in July 2019 and was detained and placed in 

foster care when he was five days old. On July 23, 2019, DCFS 

filed a petition alleging that C.S. was a juvenile court dependent 

pursuant to Welfare and Institutions Code1 section 300, 

subdivision (b) because mother had a history of substance abuse, 

was a current abuser of marijuana, and had a history of mental 

and emotional problems, including diagnoses of schizoaffective 

disorder, anxiety, depression, disorganized thoughts, paranoia, 

and auditory and visual hallucinations.

On September 30, 2019, the juvenile court sustained the 

allegations of the petition and declared C.S. a juvenile court 

dependent. The court ordered C.S. removed from mother and 

granted mother reunification services and monitored visits.

1 All subsequent undesignated statutory references are to 

the Welfare and Institutions Code.
3

On December 9, 2020, the juvenile court terminated 

mother’s reunification services and set a hearing to consider 

terminating parental rights.

II. Parentage and ICWA inquiries.

A father was not present at C.S.’s birth and was not named 

on C.S.’s birth certificate. While in the hospital, mother said she 

“preferred not to say who the Father is” and would ask for a 

paternity test if anyone claimed to be C.S.’s father. Mother’s 

adult daughter, Alexis, said she believed C.S.’s father was 

Kenneth R., but when mother was asked about Kenneth, she said 

only that she did not want him around because he had hit her. A 

children’s social worker (CSW) attempted to reach Kenneth at his 

last known phone number, but the woman who answered the 

phone said no one by that name lived there.

At a July 24, 2019 detention hearing, mother filled out a 

parentage questionnaire in which she identified Kenneth as the 

probable father, but said she and Kenneth were not married and 

had not lived together. Mother said Kenneth had not signed 

C.S.’s birth certificate or other paperwork naming him as C.S.’s 

father, had not held himself out as C.S.’s father, had not received 

C.S. into his home, had not helped support C.S. financially, and 

had not taken a paternity test. Mother said she was married to 

Fred S., from whom she had separated in about 2011 but had 

never divorced. Mother also filled out an ICWA-020 form in 

which she stated she had no Indian ancestry as far as she knew.

Based on mother’s disclosures, the court deferred a finding 

of paternity pending “the appearance of the father.” The court 

further found it did not have reason to know C.S. was an Indian 

child or that ICWA applied through mother’s family. Mother was 
4

instructed to keep the court aware of any new information 

relating to C.S.’s possible ICWA status.

In late July 2019, DCFS conducted a due diligence search 

for Kenneth and identified five possible addresses, eight 

telephone numbers, and one email address. A CSW tried 

unsuccessfully to reach Kenneth at each of the eight phone 

numbers, mailed contact letters to the addresses, and sent an

email to the email address. The CSW also spoke to mother’s 

estranged husband, Fred S., who said he had not talked to 

mother in years.

Kenneth contacted a CSW on August 14, 2019. He was 

homeless but provided an address where he could receive mail. 

He said he would like a paternity test because he “think[s]” C.S.

is his child. He admitted being “mentally unstable” and smoking 

marijuana regularly. With regard to ICWA, he said, “I have 

Native American Heritage, Cherokee was not found to be 

eligible.” DCFS attempted to serve Kenneth at the address 

provided; notice was returned as unclaimed.

At the September 30, 2019 jurisdiction/disposition hearing, 

the court found Kenneth and Fred to be “alleged only, noncustodial” fathers, and therefore not entitled to reunification 

services.

Kenneth did not contact DCFS again for nearly two years 

and never appeared at a hearing. On May 1, 2021, Kenneth 

called the CSW to request photos of C.S. The CSW encouraged 

Kenneth to appear at the July 7, 2021 hearing, noting that he 

could request photos then. Kenneth responded that he was

“currently on the run because I have a warrant for my arrest in 

Los Angeles County.” He was living in Northern California with 
5

the mother of his older children, who was “not too happy” that he 

was C.S.’s alleged father.

On July 7, 2021, the juvenile court terminated the parental 

rights of “Andrea [S.], Fred [S.], Kenneth [R.] . . . and anyone else 

that claims to be a parent to this child.” Mother timely appealed

from the order terminating parental rights.

DISCUSSION

Mother’s sole contention on appeal is that DCFS failed to 

discharge its duty of inquiry under ICWA because it did not 

investigate Kenneth’s claim of Cherokee ancestry or provide 

informal notice of the dependency proceeding to the Cherokee 

tribes. For the reasons that follow, mother’s claim lacks merit.

ICWA was enacted “ ‘to protect the best interests of Indian 

children and to promote the stability and security of Indian tribes 

and families by the establishment of minimum Federal standards 

for the removal of Indian children from their families and the 

placement of such children in foster or adoptive homes which will 

reflect the unique values of Indian culture . . . .’ [Citation.]” 

(In re Isaiah W. (2016) 1 Cal.5th 1, 8 (Isaiah W.); see 25 U.S.C. 

§ 1902.) The statute applies to “child custody proceeding[s]”––

that is, to actions that may result “in the termination of the 

parent-child relationship.” (25 U.S.C. § 1903(1)(ii).)

“Juvenile courts and child protective agencies have ‘an 

affirmative and continuing duty to inquire’ whether a dependent 

child is or may be an Indian child.” (In re Michael V. (2016) 

3 Cal.App.5th 225, 233; see also Isaiah W., supra, 1 Cal.5th at 

pp. 9–11; § 224.2, subd. (a).) An “Indian child” is “any unmarried 

person who is under age eighteen and is either (a) a member of 

an Indian tribe or (b) is eligible for membership in an Indian 

tribe and is the biological child of a member of an Indian tribe.” 
6

(25 U.S.C. § 1903(4); see also § 224.1, subd. (a) [adopting federal 

definition of “Indian child”].) 

Because Mother has denied that she has Indian ancestry

and because she makes no claim of error as to the investigation of 

her own ancestry, ICWA can apply only through C.S.’s father. 

The question for us, therefore, is whether there was sufficient 

evidence that Kenneth is C.S.’s father to require an investigation 

of his claimed Indian ancestry. 

ICWA’s definition of “parent” includes “any biological 

parent or parents,” but expressly excludes unwed fathers “where 

paternity has not been acknowledged or established.” (25 U.S.C. 

§ 1903(9); see also § 224.1, subd. (c) [adopting federal 

definition].)

2 The statute does not specify how paternity may be 

“acknowledged or established” for purposes of applying ICWA, 

however––and while the Bureau of Indian Affairs (BIA) has 

acknowledged this omission, it declined to adopt a federal 

standard when it issued ICWA regulations in 2016. Instead, the 

BIA’s comments accompanying the final regulations explained as 

follows: “The final rule mirrors the statutory definition and does 

not provide a Federal standard for acknowledgment or 

establishment of paternity. The Supreme Court and subsequent 

case law has already articulated a constitutional standard 

regarding the rights of unwed fathers, see Stanley v. Illinois, 

405 U.S. 645 (1972); Bruce L. v. W.E., 247 P.3d 966, 978–979 

2 In full, 25 United States Code section 1903(9) provides: 

“ ‘[P]arent’ means any biological parent or parents of an Indian 

child or any Indian person who has lawfully adopted an Indian 

child, including adoptions under tribal law or custom. It does not 

include the unwed father where paternity has not been 

acknowledged or established.”
7

(Alaska 2011) (collecting cases)—that an unwed father who 

‘manifests an interest in developing a relationship with [his] child 

cannot constitutionally be denied parental status based solely on 

the failure to comply with the technical requirements for 

establishing paternity.’ Bruce L., 247 P.3d at 978-79. Many 

State courts have held that, for ICWA purposes, an unwed father 

must make reasonable efforts to establish paternity, but need not 

strictly comply with State laws. Id. At this time, the 

Department does not see a need to establish an ICWA-specific 

Federal definition for this term.” (Indian Child Welfare Act 

Proceedings, 81 Fed.Reg. 38796 (June 14, 2016).)

There is no suggestion in the record––and mother does not 

contend––that Kenneth has “manifest[ed] an interest in 

developing a relationship with” C.S. such that he cannot 

constitutionally be denied parental status. To the contrary, it 

appears undisputed that Kenneth did not support mother during 

her pregnancy, was not present at C.S.’s birth, and has never 

appeared in the dependency action to seek visitation with or 

custody of C.S. Indeed, it appears Kenneth has never met C.S. or 

tried to do so. For all of these reasons, Kenneth does not have a 

constitutionally protected interest in a relationship with C.S. 

Nor has Kenneth acknowledged or established paternity 

under state law. (In re Daniel M. (2003) 110 Cal.App.4th 703, 

708 [because ICWA does not provide a standard for the 

acknowledgment or establishment of paternity, “courts have 

resolved the issue under state law”]; Office of Public Advocacy v. 

Superior Court (Alaska 2020) 462 P.3d 1000, 1006 & fn. 37 [citing 

In re Daniel M.].) The framework for paternity determinations in 

California is set out in several provisions of the Welfare and 

Institutions Code and Family Code. As relevant here, these 
8

provisions state that paternity may be established or 

acknowledged as follows:

––Through the entry of a judgment of paternity by a court 

(Fam. Code, § 7636; § 316.2, subd. (a)(1));

––By a voluntary declaration of parentage signed by an 

unmarried mother and a person identified by the mother “as 

either the only possible genetic parent other than the woman who 

gave birth or the intended parent of a child conceived through 

assisted reproduction” (Fam. Code, §§ 7571, subd. (a), 7573–7581; 

§ 316.2, subd. (a)(5));

––By the identification of a man as a genetic parent 

through genetic testing, if the identification is not successfully 

challenged (Fam. Code, §§ 7554, subd. (a), 7555; § 316.2, subd. 

(a)(6));

––By legal presumption: Where a man and a child’s birth 

mother married or attempted to marry, or a man “receive[d] the 

child into [his] home and openly [held] out the child as [his]

natural child,” he will be presumed to be the child’s natural 

parent, subject to rebuttal “in an appropriate action . . . by clear 

and convincing evidence” (Fam. Code, § 7611, subds. (a)–(d), 

7612, subd. (a); § 316.2, subds. (a)(2)–(4), (7).)

––By an alleged father “[a]dmit[ting] parentage in a 

pleading, when making an appearance, or during a hearing,” if 

the court “accepts the admission . . . and . . . determines that the 

person is a genetic parent of the child” (Fam. Code, § 7554, 

subd. (a); § 316.2, subd. (a)(5)).

In the present case, Kenneth did not acknowledge or 

establish paternity in any of the ways prescribed by statute. He

did not seek a judgment of paternity, sign a voluntary declaration 

of paternity, or submit to genetic testing. He is not married to 
9

mother and he never received C.S. into his home or held C.S. out 

as his child. Further, Kenneth has not admitted parentage in a 

pleading, when making an appearance, or during a hearing. To 

the contrary, he has never made an appearance of any kind in 

this action despite being served with notice.

Notwithstanding Kenneth’s failure to meet any of the 

statutory conditions for acknowledging or establishing paternity, 

mother contends Kenneth’s claims of Cherokee ancestry triggered 

ICWA’s inquiry and notice requirements because Kenneth

allegedly “acknowledged” his paternity to the mother of his older 

children. However, mother cites no authority, and we are not 

aware of any, for the proposition that an informal 

acknowledgement of paternity to a third party makes Kenneth a 

“parent” for ICWA purposes.

3

Mother further contends that we should not look to state 

law to define what it means to “acknowledge” or “establish” 

paternity for ICWA purposes because “the United States 

Supreme Court [has] specifically rejected the argument that a 

man did not qualify as a ‘parent’ under 25 U.S.C. § 1903(9) 

because he did not meet the definition for acknowledging or 

establishing paternity under [state] law.” Not so: In Adoptive 

Couple v. Baby Girl (2013) 570 U.S. 637, 647, footnote 4, on which 

mother relies, the Supreme Court specifically declined to decide 

whether the father was a “parent.” The court reached this 

3 Indeed, even were mother correct about the legal standard, 

the record does not support mother’s assertion that Kenneth 

acknowledged paternity to the mother of his older children. 

While Kenneth told a CSW he had told his children’s mother that 

he was C.S.’s “alleged father,” nothing in his statement suggests 

he admitted being C.S.’s biological father.
10

conclusion, moreover, because it found that even if the biological 

father were a “parent,” the provisions of ICWA governing 

termination of parental rights would not apply because he “had 

never had legal or physical custody of Baby Girl” (id. at p. 650)––

a conclusion that, if applicable here, would require us to find that 

Kenneth’s alleged biological paternity of C.S. is wholly irrelevant 

to the ICWA inquiry.

DISPOSITION

The order terminating parental rights is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL 

REPORTS

EDMON, P. J.

We concur:

LAVIN, J.

EGERTON, J.