Filed 8 / 16 /21 In re Jaylen F. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ord ered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT
DIVISION THREE

In re JAYLEN F.

, A Person Coming Under the Juvenile Court Law. B 311399

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES

,
Plaintiff and Respondent

,

v.

T. G

. , Defendant and Appellant

. Los Angeles County Super. Ct. No.
1 8 CCJP 0 0 780 B

APPEAL from an order of the Superior Court of
L os Angeles County, Nichelle Blackwell

, Temporary Judge

. Affirmed

. Linda J. Vogel , under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro

- Silva , County Counsel, Kim Nemoy

, Assistant County Counsel, and Jessica S. Mitchell

, Deputy County Counsel, for Plaintiff and Respondent.2 INT RODUCTION

T. G. (mother ) ap peals from the juvenile court’s order terminating her parental ri ghts to nine

- year old Jaylen F. under
Welfare and Institutions Code 1 section 366.26. She does not
contest the merits of the court’s de cision. Instead, mother argues
the Department of Children and Family Services ( Dep artment) did not satisfy its duty of further inquiry under the Indian Child Welfare Act of 1978 ( 25 U.S.C. § 1901 et seq. ; ICWA) because it failed to ask her maternal great aunt about Jaylen’s possible Native American ancestry. We affirm.

BACKGROUND

An abridged statement of facts is presented because this appeal is limited to a single issue regarding compliance with
ICWA. Mother has four children: Teanna born in 2002; Dylan born in 2007; Aaliyah born in 2008; and Jaylen born in 2012. All four
children have differe nt fathers. J. F. (father) is Jaylen’s father. Only Jaylen is the subject of this appeal; father did not challeng e the termination of his parental rights to Jaylen.

1. Prior Dependency Proceedings
Since 2004, m other has been involved in numerous dependency proceedings pertaining to Teanna, Dylan, and Aaliyah based on substantiated allegations of drug abuse, physical ab use, emotional abuse, caretaker absence, mental
health problems, and general neglect

. For example, in 2004

1 All u ndesignated statutory references are to the Welfare and Institutions Code.3

Teanna was detained from mother and declared a dependent of
the court due to mother’s drug use at the time of the ch ild’s birth
and mother’s severe a nger management problems

. As another example, in 2 010 Dylan and Aaliyah were detained from mother
and declared dependents of the court due to m other’s auditory hallucinations and psychiatric hospitalization. Ultimately,

m oth er’s reunification efforts with these children were not
successful. T he court ordered Teanna into a permanen t plan of legal guardianship

. Mother’s parental rights to Dylan were
terminated and mother never reunified with Aaliyah

.
2. Dependency Proceedings Involving Jaylen and Compliance with ICWA
In May 2014, Jaylen was detained from mother. The following month, the court declared Jaylen a dependent. In August 2015, the court terminated jurisdiction over Jaylen with a custody ord er granting sole legal and physical custody to mo ther. In February 2017, Jaylen was detained from mother and father. Two months later, Jaylen was returned to his parents’ custody and jurisd iction was terminated. On February 4, 2018, the family came to the Department’s attention again after mother was arr ested for trying to go uge out father’s eyes and smother him with a blanket while Jaylen and Aaliyah were nearby. In response to mother’s arrest, t he Department initiated this action by filing a petition under section 300, subdivisions (a) and (b) on behalf of Jaylen and Aaliyah. According to the ICWA

- 010(A) form s attached to the petition , on February 5, 2018 mother told a Department social worker that Jaylen and Aaliyah have no known Indian ancestry. The February 7, 2018 detention report confirms that IC WA does not apply, and states that w hen mother was asked about Ind ian4

ancestry she indicated that “there is no ICWA status on the family.” Further, based on the Department’s review of the
CWS/CM S database, on August 16, 2010 another juvenile court
found that ICWA did not apply to mother. At the February 8, 2018 detention hearing, mother and father appeared and were appointed counsel. Mother’s counsel stated, “Your Honor, I believe ICWA findings were made already previously for the chi ldren Aaliyah and Jaylen. I wasn’t sure if
the court re quired them but I can fill [ the ICWA

- 020 form s ] out after the hearing.” The court replied it needed the for m s filled out again for mother. The f ollowing discussion then took place
between the court and mother : Court: “For mother, do you have any Native American Indian ancestry, ma’am?”
Mother: “ Yes, I do. ”
Court: “ What is the tribe? ”
Mother: “ I haven’t [done] my research yet and got on
ancestry.com. ”
Court: “ Oh, how do you know? ”
Mother: “ History of my grandparents and grandmother. ”
Court: “ What is the name of the tribe? ”
Mother: “ I just told you I don’t know. I can’t tell you specifically. ”
Court: “ Tribes are entitled to r eceive notice when children

are detained, so we need to have a name of a tribe in order to have notice. Do you have contact information? ”
Mother: “ I’ll definitely get it for you. ”
Mother’s counsel informed the court he could provide
mother with the ICWA

- 020 form to fill out. Mother replied, “Do I got it in my blood? We need that?” The cou rt responded that “at5

this time” it would defer ICWA findin gs as to Jaylen regarding
mother and noted father had no Indian h eritage. While the court was making its detention findings, mother stated, “I’m walking
out.” The court ordered the ch ildren detained under the Department’s supervision with monitored visitation for the
parents. T he court also ordered the Department to “further interview the mother regarding the ICWA issue.”
After the February 8, 2018 hearing , f ather and mother filed
thei r ICWA

- 020 forms. Father checked the box next to “I have no
Indian ancest ry as far as I know.” Mother checked the box next to “I am or may be a member of, or eligible for membership in, a federally rec ognized Indian tribe.” Mother did not , however,
identif y a tribe or provide the name and cont act in formation of any relative

. In addition, mother did not check the box indicating that one or more of her parents, grandparents, or other lineal ancestors is or was a member of a federally recognized tribe.
O n Marc h 27, 2018, a dependency investigator ( DI) called
mother to discuss her claim of possible Indian ancestry. The DI began the telephone interview by asking mother about her claim of possible Indian ancestry to which mother replied she had
Native American anc estry. When asked if she knew the nam e of the tribe, mother stated there was supposed to be an investigati on regarding her heritage and it was not her job to do the investigation. After t he DI tried to explain the process of investigating a parent’s claim of Nati ve American ancestry,
mother denied knowing what tribe she was affiliated with. The
DI then asked m other if she could provide the Department with the names of any relatives and their telephone numbers for purposes of its further investig ation into h er claim. At first,

m other said she had the names and telephone numbers of those6

relatives. But w hen the DI asked mother to provide the relative s’ information, mother stated “ n ot now.” Mother and father appeared with counsel at a June 13,

2018 hearing

. During t he hearing, the Department informed the

court the investigation as to mother’s claim of possible Native American heritage was still pending. T he Depar tment explained that although it tried to follow up with mother to obtain more
informati on about a partic ular tribe and any relatives that could assist its investigation, mother stated she did not know if she
could provide the information to the Department

. During the June 13, 2018 hearing, t he court asked mother’s

cou nsel whether he had ICW A information “ [b] ecause my understanding of this is that the mother is makin g contrary statements.” Mother’s counsel responded that mother indicated the social worker never approached her or n ever asked her for any information. The court replied, “All rig ht. I’m going to make a finding that this child [Aaliyah] is not an Indian child and neither is the child Jaylen. The mother filed an ICWA doc ument [on] February 17, 2017 in [a prior] case when it was first here before it closed and she clearly marked the part of the box D, stating that she has no [Indian] ancestry, as far as she know s

. Now I see that she did submit another ICWA form on February 8, 2018, a year later, checking the box that she may be a member or eligible for membership in a tribe. Yet, none of that information was ever disclosed in 2017. And a finding was made in 2017 that
the mother d enied Indian heritage.” The court added it “will not allow parents to play fast and loose with the court by making contradictory statements in order to delay proceedings or create undue havoc on the proceedings because then [the] doctrine of disentitlement will come into play .” The court stated it would7

“maintain the previous order and findings made on February 17, 2017, based on mother’s ICWA statement, which she signed under penalty of perjury under the laws of the State of California that she has no Indian heritage.”
The court also determined the Department “is not required to give any further notice, because the mother has already stated
she has no In dian heritage and she made that statement under penalty of perjury” and , therefore, the Department “need not further investigate this matter.” The court emphasized that if any investigation were to be done, it would be a perjury investigation regarding mot her telling the truth. The court’s June 13, 2018 minute order states that it “ does not have a reason to
know that [Jaylen] is an Indian Child, as defined under ICWA, and does not order notice to any tribe or the BIA. Parents are to keep the Department, the ir Attorney and the Court aware of any new information relating to possible ICWA status. ”
At the August 1, 2018 jurisdiction and d isposition hearing, the court found jurisdiction over Jaylen and Aaliyah based upon
several counts asserted in the first amend ed petition. As to mother, the court sustained count a

- 1 (history of violent altercations between mother and father), counts a

- 2, b

- 2, and j

- 1 (mother’s physical abuse of Aaliyah), and count c

- 1 (mother’s emotional abuse of Aaliyah). The court found that m other’s testimony “is completely without merit and lacks credibility.” The court declared the children dependents of the court and found the bypass provisions of section 361.5 applied because mother had inflicted severe physical abuse on Aaliyah, Jaylen wi tnesse d the physical abuse, mother failed to reunify with Te anna and Dylan,
and mother’s parental rights over Dylan had been severed. The

court also observed that despite the Department ’s extensive8

efforts over 14 years to assist mother in providing her children
with a safe home

, those efforts had not helped. A ll t he review hearing reports after August 1, 2018 stated that ICWA did not apply. By January 2019 Jaylen was living in a foster home

. On February 12, 2019, a social worker spoke with mother’s maternal
great aunt , Mary J., about having visits with Jaylen. S he was
unable to visit with Jaylen at that time , however, because she was in the process of relocating

. The record does not indicate whether the social worker asked the great aunt if mother or Jaylen had Native American ancestry.
In August 2019 Jaylen was placed in the foster home of Ms.
L. and Mr. C. And i n September 2019 mother’s great aunt
withdrew her Resource Family Approval ( RFA ) appli cation due to her inability to obtain a criminal waiver. Following the
withdrawal of her RFA application , the great aunt stopped visiting Jaylen and no longer had any contact with the child. Shortly thereafter , t he Department recommended Jaylen receive permanent placement services while receivin g adoptive planning in his current placement with Ms. L. and Mr. C. Jaylen continued doing well in the ir home and Ms. L

. and Mr. C. rema ined committed to adopting him. He got along well with their family
and did well in school

. Due to COVID

- 19 restrictions , m other had
inconsistent monitored visits with Jaylen ; her most recent visit
was in November 2020

. After mult iple continuances, the court held the contested section 366.26 hearing on March 22, 2021. At the beginning of the hearing , mother’s counsel inform ed the court that m other, who
was present, suggested she wanted to discharge him and
represent herself because she considered him racist,9

unprofessional, “and a host other things. ” The court responded
that m other had been very recalcitrant in the past, counsel had been very thorough, and this was “simply a nother ruse” on

m other’s part to delay the termination of her parental rights. The court emphasized that mother “has repeatedly engaged in efforts that tend to sabotage Jaylen’s placement.”
Durin g the hearing, mother accused the Department of not liking her and being racist. As for the court, mother said “the judge needs to be investigated because she’s lying under her own oath in the United States, California, in the judicial system.” Regarding m other’s purported Indian heritage, mother reminded the court it “wouldn’t believe a word I said. Two years ago you said you [were] going to find me unbelievable because I told you I had Indian in my heritage

. ” At the end of the hearing the court found by c lear a nd convincing evidence that Jaylen was adoptable, no exception to adoption applied, and terminated
mother’s and father’s parental rights. T he court also designated Ms. L. and Mr. C. as Jaylen’s prospective adoptive parents.
Mother filed a timely noti ce of appeal.

DISCUSSION

M other contends the order terminating her parental rights

must be reversed because the Department should have further inquired of mother’s great aunt about Jaylen’ s p ossible Indian heritage

. We disagree.

1. Applicable Law and Standard of Review

“ The section 366.26 hearing is a critical late stage in a dependency proceeding. Th e child has been under juvenile court jurisdiction for an extended period following the dispositional order, and the court has held on e or more review hearings to10

consider a return to parental custody. [Citation.] At the section

366.26 hearing, the focus shifts away from family reunification
and toward the selection and implementation of a permanent plan for the child. [Citation.]

... If a doption is likely, the court is required to terminate parental rights, unless specified
circumstances compel a finding that termination would be
detrimental to the child. ” ( In re S.B. (2009) 46 Cal.4th 529, 532 .)
“ICWA reflects ‘ a congressional determination to protect
Indian children and to promote the stability and security of
Indian tribes and families by establishing minimum federal
standards that a state court

... must follow before removing an India n child from his or her family .’ [Citation.] Both ICWA and
the Welfare a nd Institutions Code define 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 bio logi cal child of a member of an Indian
tribe.’ ” ( In re D.F. (2020) 55 Cal.App.5th 558, 565

, fn. omitted ( D.F. ).) A juvenile court has a n affirmative and continuing duty to determine whether ICWA applies to a child’s dependency proceedings. (§ 224.2, subd. (a) ; Cal. Rules of Court, rule 5.481(a) .) Although the record must show the court considered the issue, the court’s finding about whether ICWA applies may be

expr ess or implied. ( In re Asia L. (2003) 107 Cal.App.4th 498, 506.)
The duties imposed by I CWA on t he juvenile court and the
county welfare agency can be separated into three phases: (1) a duty to inquire, (2) a duty of further inquiry, and (3) a duty to provide ICWA notice. ( D.F., supra , 55 Cal.App.5th at p. 5 6 6 .) The
initial duty to inquire “ includes, but is not limited to, as king the11

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 b e, an Indian child and where the child, the parents, or Indian
custodian is domiciled.” (§ 224.2, subd. (b).) In addition to the initial duty of inquiry, a duty of further inquiry arises if the court
or social worker “ has reason to believe that an Indian c hi ld is involved in a proceeding.” ( Id

. , subd. (e).) This duty of further inquiry includes interviewing parents and extended family members to gather certain inf ormation, contacting the Bureau of
Indian Affairs and State Department of Social Services for

a ssistance in identifying the tribes in which the child might be a
member or be el igible for membership, and “[c]ontacting the tribe or tribes and any other person [who] may reasonably be expected
to have information regarding the child’ s membership,
citi ze nship status, or eligibility.” ( Id. , subd. (e)(1)

‒ (2 ); see Cal. Rules of Court, rule 5.481(a)(4) [same requirements].) O nce the
court or social worker “ knows or has reason to know ” t hat an Indian child is involved in the dependency proceedings,
California law requires notice pursuant to ICWA be given to the parent, legal guardian, Indian custodian, and the child’ s tribe. (§ 224.3, subd. (a); see Cal. Rules of Court, rule 5 .481(c)(1) [notice is required “ [i]f it is known or there is reason to know [that] an
Indian child is involved in a proceeding listed in rule 5.480” ].)
When the facts are undisputed, the appellate court independently reviews whether the requirements of ICWA have
been satisfied. ( In re A .M. (2020) 47 Cal.App.5th 3 03, 314 .) The appellate c ourt reviews the juvenile court’ s ICWA findings under
the substantial evidence test and determ ines whether the juvenile court’s order is supported by “ reasonable, cred ible12

evidence of solid value.” ( Ibid. ) The juvenile court’ s orders and findings must be upheld if any substantial evidence, contradicted

or uncontradicted, supports them, and all conflicts in the
evidence must be resolved in favor of affirmance. ( Ibid. )

2. The juvenile c ourt and the Department satisfied their
ICWA inquiry obligations

. At the February 8, 2018 detention hearing

, mother told the
court she had Native Am erican ancestry but could not identify a
tribe or the name and contact information of any relatives who
coul d provide that information

. In addition, on her ICWA

- 020
form mother checked the box next to “I am or may be a member of, or eligible for membership in, a federally recognized Indian
tribe” but did not identify a tribe or provide the name and contact information of any relative. Based on mother’s statements, the court deferred making ICWA findings and ordered the Department to interview mother regarding ICWA. By doing so, the court concluded, in effect, that the information provided by
mother had triggered the duty of further inquiry. Citing In re Austin J. (2020) 47 Cal.App.5th 870, the Department argues mother’ s vague and evasive statement s that
she may have Indian ancestry did not trigger a duty of fur ther inquiry. In Austin J.

, the Court of Appeal concluded that

statements by the moth er, both orally and on her ICWA

- 020
form

, that she may have Cherokee ancestry, and similar

statements by the maternal aunt, did not trigger the duty of
further inquiry. ( I

d. a t p p

. 888

– 889.) The court held: “ [T]he fact
disclosed throu gh the social worker’ s initial inquiry regarding the possibility that the children are Indian children

— that Mother

may have Cherokee ancestry

— is insufficient by itself to provide a

reason to be lieve that either the children or their parents are13

members of, or eligible for membership in, an Indian tribe. Therefore, the statute imposed no duty to make further inq uiry.” ( Id. at p. 889.)
In In re T.G. (2020) 58 Cal.App .5th 275 the Court of Appeal disagreed with Austin J

. ’ s conclusion that a mere possibility of
Indian ancestry was not enough to trigger the duty of further inquiry. ( T.G., at p. 294.) The T.G. court concluded the phrase
“reason to believe” must be interpr eted broa dly such that a parent’ s affirmative statement of Indian ancestry alone
constitutes a reason to believe an Indian child may be involved
and triggers the duty of further inquiry. ( Id. at pp. 294

– 297.) We need not weigh in on the conflict between Austin J. a nd
T.G. because the juvenile court in this case directed the Department to conduct an IC W A inquiry and, we conclude, the Department satisfied its duty of further inquiry. The first time anyone suggested mother or Jaylen had Indian ancestry was mother’s off

- handed comment at the February 2018 detention hearing that mother thought she had Native American Indian ancestry based on her grandparents’ background. But that comment was followed by mother’s
statement that sh e did not know the name of the tribe and would provide the court with contact information at another time. And
mother’s subsequently filed ICWA

- 020 form provid ed no facts to support her claim of possible Indian ancestry. For his part , f ather reported havin g no known Indian ancestry. On March 27, 2018, a Department investigator called mother to discuss her claim of possible Indian ancestry. When asked if she knew the name of the tribe, mother did not know
what tribe she was affiliated with and stated it was not her job to do the investigation. The investigator then asked mother if she14

could provide the Department with the names of any relatives and their telephone numbers for purposes of its further investigation into her claim. Mother initially indicated she had the names and telephone numbers of relatives. W hen pressed by the investigator to provide the names and telephone numbers of
th ose relatives, however, mother stated “ ‘ n ot now. ’ ” Moreover, d uring th e June 13, 2018 hearing

, the Department informed the court that although it tried to follow up with mother to obtain more information about a particular tribe and any relatives that could assist its investigation

, mother did not know if she could provide the information to the Department.
Mother and her att orney attended the June 13 hearing, and neither suggested mother had any additional information on possible Indian anc estry

. There is also no indication in the record
that mother provide d the Department additional information about her possible Indian heri tage at a subsequent hearing

, or during a subsequent conversation with a Department social worker or investigator

. To be sure, mother contends that at some point after the June 13, 2018 hearing, the Department had reason to know or believe Jaylen was an Indian child and it failed to ask mother’s great aunt about the child’s possible Native American ancestry. We have several responses to this argument. First, as mother acknowledges, great aunts are not considered “extended family members” under ICWA. Thus, the duty to further inquire under ICWA did not extend to mother’s great aunt and, in any event,
there is no bas is to conclude she had a ny information about mother’s or Jaylen’s possible Indian ancestry. (See In re D.S. (2020) 46 Cal.App.5th 1041, 1053 ; 25 U.S.C. § 1903(2); § 224.1, subd. (c).)15 Second, on June 13, 2018 the court made an express finding
that mother’s claim of Indian ancestr y was not credible and this finding is supported by substantial evidence

. (S ee In re N.M. (2008) 161 Cal.App.4th 253, 261

– 262, 267 [notice not required
where juvenile court found the mother’ s claims of tribal
affiliation not credible].) T he juvenile co urt case file contained the

2010 finding that ICWA was not applicable , as well as mother’ s February 17, 2017 representation in another dependency case and February 5, 2018 representation in this case that mother and Jaylen have no Indian ancestry. Mother presents n o reason why
the court could not reasonably rely on this evid ence to make a finding ICWA does not apply. Instead, s he focuses on the absence of evidence that, after June 13, 2018, the Department made any further inquiry regarding her renewed claim of Indian ancestry.
Viewed either as a substantial evidence issue or as a duty of inquiry issue, m other has shown no error. The court’s i mplicit finding made at the March 2021 section 366.26 hearing that ICWA does not apply remains supported by the court’s prior June

2018 finding a nd mother’s prior representations . At most, by
March 2021 there was a conf lict in the evidence co ncerning mother’s or Jaylen’s possible Indian heritage . Certainly, the court could reasonably find mother’s vague assertion of possible Indian
ancestry not credible when made wit h no supporting new
information a nd when mother had previously admi tted having no Indian ancestry. Thus, s ubstantial evidence supports the implicit finding there was no reason to know or believe Jaylen is or may
be an Indian child when the court terminated mother’s parental rights in March 2021

. 2

2 Because the information available to the Department after its further16 DISPOSITION

The order is affirmed

.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, Acting P. J.

WE CONCUR:

EGERTON , J.

HILL, J. *

inquiry did not meet any of the statutory reason

- to

- know criteria of section 224.2, s ubdivision (d), the duty to give formal ICWA notice under section 224.3 never arose.

* Judge of the Santa Barbara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.