Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. JD225103, JD227502
ROBIE, J.
Appellant, the father of the minors, appeals from the juvenile court’s order granting a permanent restraining order against him. (Welf. & Inst. Code, §§ 213.5, subds. (a) & (d), 395.) Appellant contends the issuance of a restraining order as to him, but not the minors’ mother, was unsupported by substantial evidence. He also maintains that notice was insufficient under the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) We conclude both of these claims are without merit.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2006, the Sacramento County Department of Health and Human Services (the department) filed a dependency petition regarding one-month-old M. W., alleging that his parents had a history of domestic violence during the preceding year, with incidents that included appellant “punching, hitting, shoving, slapping, yelling [at], choking and threatening” the mother. The petition alleged that despite appellant’s “history of ongoing and repeated physical violence” and the existence of a restraining order protecting M. W. and her from him, the mother continued to live with him. In addition, the mother was alleged to have an anger management problem, based on an incident in which she “was observed to suddenly pull the car off the road[,] almost causing an automobile accident[, after which] she proceeded to attack [appellant], pulling at his clothing, pushing him into a brick wall[,] while [he] was holding [M. W.] in a car seat.”
The jurisdictional report contained a summary of numerous previous law enforcement reports concerning incidents of domestic violence perpetrated by appellant against the mother, as well as appellant’s criminal record, which included prior misdemeanor convictions for violating a domestic violence restraining order.
Prior to the detention hearing, appellant reported that the paternal great-grandmother had “Blackfoot history,” and notice to the Blackfeet Tribe was ordered. Subsequently, the paternal grandmother reported “there was Navajo on her husband’s side and she believed there was Blackfeet and Cherokee on her mother’s side of the family.” The ICWA notice was sent by registered mail to Navajo, Cherokee, and Blackfeet tribes, as well as the Bureau of Indian Affairs. Shortly thereafter, a letter was sent to the tribes by registered mail with the correct spelling of appellant’s middle name and his current address.
At the jurisdictional hearing in January 2007, the juvenile court sustained the allegations in the petition and ordered reunification services. The court found the minor was not an Indian child but set the matter for an ICWA compliance hearing. Subsequently, letters from each of the tribes were filed with the court stating that M. W. was not an Indian child in relationship to the tribe. At the ICWA compliance hearing, the juvenile court found that the ICWA notice requirements had been met.
According to a report for the six-month review, appellant had cooperated with services until he was incarcerated in May 2007, after which he declined to participate in further services or supervised visitation. The mother, who was pregnant, was progressing in services and was no longer living with appellant. Meanwhile, the minor had been placed with the maternal grandparents. The social worker recommended return of M. W. to the mother and additional reunification services for appellant.
According to a later report, appellant was convicted of infliction of corporal injury on a cohabitant and possession of cocaine for sale in March 2007.
At the review hearing in July 2007, the juvenile court adopted the social worker’s recommendations and returned M. W. to the mother.
Appellant was back in custody shortly after the review hearing with charges pending for receiving stolen property. At a hearing in October 2007, appellant’s reunification services were terminated.
The social worker made an unannounced visit to the mother’s home in November 2007 and found appellant unattended with M. W. and his two-month-old sibling Ma. W. The mother was required to return home immediately, and appellant agreed to leave the residence and contact the social worker to arrange visitation.
The social worker recommended continued dependency jurisdiction and couples counseling to assist appellant and the mother with healthy communication. In January 2008, the juvenile court adopted the recommendations of the social worker.
In May 2008, protective custody warrants were issued as to the minors based on applications by the department alleging that a supplemental petition had been filed regarding M. W. and an original petition regarding Ma. W. According to the applications, appellant reported that he had been living with the mother since January 2008 and providing daily care for the minors, contrary to the mother’s report that she was living with the maternal grandparents and would not continue in a relationship with appellant. Appellant reported he had not seen M. W. in a week because the mother “‘got mad and decided to leave....’” The mother’s landlord was contacted and verified that appellant was always present when he visited the home, and the paternal grandmother acknowledged that appellant and the mother had been living together.
Neither petition is contained in the record on appeal.
The mother reported that appellant had recently “become ‘jealous and controlling’” and “would call her phone ‘1000 times a day.’” According to the mother, prior to the filing of the applications, she was at a park with the minors when appellant showed up unexpectedly and grabbed M. W. When the mother attempted to call for help, appellant told her he was going to kill her. The mother left in her car and appellant followed her, pulling his vehicle in front of hers then reversing, twice ramming her vehicle. Appellant followed the mother to the police station and threw a large metal screw at her car window.
Based on this incident, an emergency protective order was issued against appellant, prohibiting him from having any contact with the mother and the minors. The mother filed an application for a restraining order in the juvenile court.
The minors and their half sibling were placed with the maternal grandparents. Meanwhile, appellant completed a “Parental Notification of Indian Status” form in which he stated he had no Indian ancestry to his knowledge. He made the same representation at the detention hearing.
At the detention hearing, appellant objected to the restraining order, contending the mother could not show she was in imminent danger. Appellant also argued that “a no-contact order between the parties” or a mutual restraining order might be appropriate. The juvenile court granted the mother a temporary restraining order and set a hearing on whether to issue a permanent restraining order. The court denied appellant’s request for a restraining order, stating: “I don’t have the same facts that I do as to [appellant].” The court also found there was no evidence of Indian heritage.
The maternal grandfather reported that appellant repeatedly violated the restraining order, that he had been arrested shortly after the previous hearing for slashing the mother’s tires, and that he threatened the maternal grandfather and his family on numerous occasions. Additionally, he reported that appellant drove by their home “on a regular basis” and had gone by the children’s day care center on one occasion.
Appellant was in custody at the next hearing, and based on his custodial status, he argued there was no basis for issuing a restraining order against him. He also argued that, as the mother previously had allowed him liberal contact with the minors despite the existence of court orders prohibiting such contact, there was no reason to believe she would follow a restraining order.
The juvenile court granted the restraining order for three years, noting that appellant could be released at any time. The matter was continued for a jurisdictional hearing.
DISCUSSION
I The Restraining Order Was Proper
Appellant argues that the restraining order “was unsupported” because it “was not a mutual order.” We reject this claim.
In dependency proceedings, the juvenile court may issue ex parte orders “(1) enjoining any person from molesting, attacking, striking, sexually assaulting, stalking, or battering the child or any other child in the household; (2) excluding any person from the dwelling of the person who has care, custody, and control of the child; and (3) enjoining any person from behavior, including contacting, threatening, or disturbing the peace of the child, that the court determines is necessary to effectuate orders under paragraph (1) or (2). A court may also issue an ex parte order enjoining any person from contacting, threatening, molesting, attacking, striking, sexually assaulting, stalking, battering, or disturbing the peace of any parent, legal guardian, or current caretaker of the child, regardless of whether the child resides with that parent, legal guardian, or current caretaker....” (§ 213.5, subd. (a).)
The granting of a restraining order is directly appealable. (In re Cassandra B. (2004) 125 Cal.App.4th 199, 208.)
Appellant maintains the juvenile court should have issued a no-contact order between the mother and him or a mutual restraining order because “[t]he domestic violence was clearly not one-sided,” the mother had previously “violated court orders,” and “[h]istory indicated there was no reason mother would follow a new restraining order as she had not followed previous restraining orders.” Appellant fails to provide any factual support for his conclusory claim that “[t]he domestic violence was clearly not one-sided” other than to point to the event that precipitated the filing of the petition, which occurred more than a year and one-half earlier. At the hearing on the restraining order, appellant did not present any factual support for the issuance of such an order against the mother. In sum, the record simply does not support appellant’s claim that the mother had an “equal propensity to perpetrate domestic violence.”
And the fact that the mother previously violated court orders (presumably, by allowing appellant contact with the minors) or that there was some basis for concern that she would not enforce the current restraining order does not provide support for appellant’s argument that a mutual restraining order was mandated; such conduct is not prohibited under section 213.5 and, thus, would not provide grounds for the issuance of a restraining order against the mother. (See In re Cassandra B., supra, 125 Cal.App.4th at p. 211.)
Appellant also claims he was prejudiced by the restraining order, although he does not argue there was insufficient evidence to issue a restraining order against him. As prejudice is relevant only if error has occurred, we do not address this argument.
II The ICWA Issue Is Not Before The Court
Appellant also claims notice was defective under the ICWA because the department did not provide proof to the juvenile court that the tribes were properly renoticed when appellant provided the correct spelling of his middle name and his most current address. For a variety of reasons, we reject this argument.
With regard to M. W., appellant cannot demonstrate any prejudice. Shortly after the hearing in question, it was determined that appellant was not M. W.’s biological father. The ICWA defines an “Indian child” as “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.” (25 U.S.C. § 1903(4).) And the ICWA defines “parent” as the biological parent of a child or an individual who has legally adopted the child. (25 U.S.C. § 1903(9).) The absence of a biological tie between appellant and M. W. forecloses the possibility of the minor being an Indian child based on his relationship with appellant. (In re E.G. (2009) 170 Cal.App.4th 1530, 1534.) Similarly, appellant requested paternity testing as to Ma. W., but it had not been determined whether he was her biological father.
Furthermore, whereas “[t]he substantive provisions of the ICWA apply to the minor’s placement in adoption and foster care and to other hearings, such as termination of parental rights, which affect the minor’s status,” the ICWA “do[es] not apply to related issues affecting the minor such as paternity, child support or... a ruling on a petition for modification which affects only the information available to the department in making its decisions.” (In re Holly B. (2009) 172 Cal.App.4th 1261, 1266.) The issuance of a restraining order does not implicate the ICWA. Thus, the ICWA issues are not cognizable on appeal from a hearing at which a restraining order was granted.
Finally, as to Ma. W., the juvenile court’s ICWA finding was not appealable from the hearing in question for another reason. “[T]he dispositional order is the adjudication of dependency and is the first appealable order in the dependency process.” (In re Sheila B. (1993) 19 Cal.App.4th 187, 196.) The jurisdictional and dispositional hearings had not yet taken place in Ma. W.’s matter and, thus, no judgment had been entered. For this reason, too, appellant’s ICWA claim is not subject to review in this proceeding.
DISPOSITION
The juvenile court’s order is affirmed.
We concur: RAYE, Acting P. J., HULL, J.