In re SKYLER H.,















Filed 7/28/10









CERTIFIED FOR
PUBLICATION



COURT OF APPEAL, FOURTH APPELLATE
DISTRICT



DIVISION ONE



STATE OF CALIFORNIA






>

In re SKYLER H., a Person Coming Under the Juvenile Court Law.
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY et al., Plaintiff and Respondents, v. JENNIFER H., Defendant and Appellant.	D056307 (Super. Ct. No. J514948)

APPEAL from orders of
the Superior Court
of San Diego
County, Gary M. Bubis, Judge.
Affirmed.

Andrea R. St. Julian,
under appointment by the Court of Appeal, for Defendant and Appellant.

John J. Sansone, County Counsel, John E. Phillips, Chief Deputy County
Counsel, Katharine R. Bird, Deputy County Counsel, for Plaintiff and Respondent
San Diego County Health and Human Services Agency.

Patricia K. Saucier, under appointment by the Court of
Appeal, for Respondent Kenneth I.

Valerie N. Lankford,
under appointment by the Court of Appeal, for Minor.



Jennifer H. appeals
orders terminating parental rights
under Welfare and Institutions Code section 366.26.[1] She also appeals an order summarily denying
her petition for modification under section 388. Jennifer asserts the court did not comply
with the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA or federal
act). We affirm.

INTRODUCTION

While the standard for ICWA notice is low, it is not
without reasonable limits. This case
raises the issue whether a child's specific but attenuated Indian heritage
invokes ICWA notice requirements under section 224.3, subdivision (b), which
describes circumstances that may
provide reason to know the child is an Indian child. We hold the trial court has discretion to
consider the totality of the information presented concerning the child's
family circumstances to determine whether it meets the threshold required for
ICWA notice--"the court knows or has reason to know the child is an Indian
child." (§ 224.2.) We further hold ICWA notice is not required
unless the totality of the family's circumstances indicate there is a low but
reasonable probability the child is an Indian child. Here, we conclude the case need not be
remanded for ICWA notice because the family's specific but attenuated Indian
heritage does not provide reason to know the child is an Indian child.

We further conclude that
the trial court did not abuse its discretion when it found that the parent did
not show a prima facie case of changed
circumstances and best interests of the child, and summarily denied her
petition for modification under section 388.
In addition, we conclude there is substantial evidence to support the
court's finding the beneficial parent-child relationship exception did not
apply.

FACTUAL AND PROCEDURAL BACKGROUND

Skyler H., now age 11,
is the daughter of Jennifer H. and Kenneth I. (together, the parents). When Skyler was a baby, Kenneth placed her in
the care of her paternal grandmother (Grandmother) because Jennifer was
"running the streets with [Skyler]."
In April 2003, when Skyler was three years old, the San Diego County
Health and Human Services Agency (the Agency) filed a petition alleging a
paternal uncle hit Skyler and she was exposed to violent confrontations between the paternal
uncle and her older half sister, Amber.
(§ 300, subd. (b).) Amber
said Jennifer "hardly ever" visited Skyler, perhaps once every two
months.

Kenneth had a criminal history dating from 1989,
primarily for drug violations. He was
incarcerated when the proceedings began.


The Agency located Jennifer in local custody. She was convicted in 2002 for threatening to
commit a crime resulting in death or great bodily injury. In 1996 Jennifer was convicted of receiving stolen property.

The court recognized
Grandmother as Skyler's de facto parent and placed Skyler in her home.

In August 2003 the court
ordered a plan of reunification services for Jennifer. Within a short time, Jennifer was
noncompliant with her substance abuse treatment program. By December she had not participated in
services, visited Skyler or contacted the social worker in more than two
months.

In February 2004
Jennifer was remanded to the custody of the California Department of Corrections
(CDC) for two years for violating the terms of her probation.

Grandmother did not
believe either parent would stay out of jail long enough to provide a home for
Skyler. In July 2004, at the 12-month
status review hearing, the court identified a permanent plan of legal guardianship
for Skyler with Grandmother. In January
2005 the court appointed Grandmother guardian and terminated jurisdiction.

In October 2008 the
Agency filed a petition alleging Grandmother had left Skyler with Kenneth and
allowed her to reside in filthy conditions.
Skyler was begging the neighbors for food and money, and she was dirty
and unkempt. Kenneth was using
methamphetamine. He assaulted his
girlfriend and held a shotgun to her head in front of Skyler and his baby
daughter. After Skyler was detained, she
was diagnosed with a kidney infection.

Jennifer was in local custody. She had been arrested in April 2008 and was
convicted on charges of possession of narcotics, reckless driving and
possession of a hypodermic needle/syringe.
She admitted she had used methamphetamine since she was 16 years
old. Jennifer last saw Skyler in January
2008, when she had Skyler in her care for a week. Jennifer told the social worker she wanted to
stop using drugs and have Skyler back in her life. In September Jennifer entered the Pregnant
and Parenting Inmates Program, which provided substance abuse treatment and
health education for pregnant,
postpartum or parenting women.

Kenneth was arrested in
October 2008 for smuggling Mexican nationals into the United
States.
He was incarcerated until February 2009.

At a special hearing, the social reported that the
maternal grandmother, Mrs. H., stated her great-grandfather was a
"full-blooded" Cherokee who had lived in Arkansas. Mrs. H. did not know the specific tribe. She believed he had "signed the family's
rights away to get any benefits from the tribe." Each year, Mrs. H. attended an intertribal
pow-wow on Father's Day, and participated in one of the dances. However, neither she nor any other family
member was enrolled in any tribe, had lived on an Indian reservation or in an
Indian community, or had received any services or benefits available to
Indians. The court found that Skyler was
not an Indian child within the meaning of ICWA.

In December 2008 the court terminated Grandmother's
guardianship and selected a permanent plan of long-term foster care for
Skyler. The court granted the parents
reasonable supervised visitation.
Skyler's baby half sister was also placed with the same family.

In May 2009, at the
Agency's request, the court referred the matter for a section 366.26
hearing. Skyler's foster parents were
interested in adopting her.

Several days before the
scheduled 366.26 hearing, Jennifer filed a section 388 petition asking the court
to place Skyler with her or, alternatively, allow her to have an opportunity to
reunify with Skyler. Jennifer averred
she had completed a drug treatment program, an anger management program and two
parenting classes. She was discharged
from parole in June 2009, and had remained drug free. Jennifer shared a residence with a female
roommate. She consistently visited
Skyler, who seemed happy to see her.

The section 366.26
hearing was held on November 16, 2009. The court summarily denied Jennifer's section
388 petition.

The social worker
reported that Skyler, who was almost 10 years old, was "a joy of a
child." She was resilient,
high-spirited, engaging, polite and sweet.
Skyler was focused on school and her friends, and did not act out. The social worker testified she had talked to
Skyler about adoption. Skyler did not
want to live under guardianship because it had not worked for her in the
past. She was a very bright child and
understood her parents would not have any legal rights to her. Skyler had a good understanding of adoption
and wanted to be adopted by her foster care parents. She was happy where she was living. The social worker believed she loved her foster
parents and family.

Skyler visited Jennifer
and Kenneth separately. She was
affectionate with each parent. Jennifer
praised and complimented Skyler, and treated her lovingly. At one visit, Skyler asked Jennifer to pick
her up and carry her for a few minutes, which Jennifer did. At times Skyler was animated and stayed close
to Jennifer. At other visits, she was
reserved and less responsive. Skyler was
cheerful after visiting Kenneth. Skyler
liked visiting her parents. She said she
would be sad but it would be "ok" if she could not visit them. The social worker believed it "would be
good" if Skyler could occasionally visit Jennifer.

The court found that
there was strong evidence there would be no barriers to Skyler's adoption by
her foster care parents. The court said
Skyler knew her parents and loved them, as did most abused children. However, Skyler longed for stability, and
adoption would meet her needs. The court
terminated Jennifer's and Kenneth's parental rights.

DISCUSSION

Jennifer raises three
claims of error on appeal. She contends
the trial court erred when it concluded Skyler was not an Indian child and the
matter should be remanded to the trial court with directions to comply with
ICWA notice requirements. Jennifer
argues she established a prima facie case of changed circumstances and best
interests to merit a hearing on her section 388 petition, and requests this
court reverse the order terminating parental rights and remand for a hearing
under section 388. Jennifer also asserts
reversal of the order terminating parental rights is required because the
court's finding the beneficial parent-child relationship exception did not
apply is not supported by substantial evidence.

Kenneth did not file a notice of appeal, but joins with
Jennifer's brief. He contends if this
court reverses the order terminating Jennifer's parental rights, his parental
rights must also be reinstated.

I

ICWA

Skyler's great-great-great-grandfather was
"full-blooded Cherokee" and her maternal grandmother, Mrs. H.,
participated in an annual Indian pow-wow.
Jennifer argues these facts give the court reason to know the child is
an Indian child, requiring notice under sections 224.2 and 224.3, subdivision
(d). We do not agree. We conclude the family's circumstances do not
provide sufficient reason to know Skyler is a member of, or is eligible for
membership in, an Indian tribe, as defined in 25 United States Code
section 1903(4) and applicable case law.
The trial court did not err when it found that ICWA did not apply.

In this part, we discuss the goals of ICWA and its
implementation in section 224 et seq. (state ICWA act or state act). We examine section 224.3, subdivision (b),
which is the threshold statute for ICWA notice under state law, and compare its
terms to the recommendations found in section B.1, "Determination That
Child Is an Indian," of the Bureau of Indian Affairs (BIA) Guidelines for
State Courts,[2]
clarifying this court's decision in Damian
C. (2009) 178 Cal.App.4th 192, 196 (Damian C.). We discuss the
definition of an "Indian child" and the meaning of "reason to
know." After reviewing prior case
law addressing ICWA notice requirements, we evaluate the facts of this case in
view of our conclusion that while the standard for ICWA notice is low, notice
is not required unless there is a reasonable probability the child is an Indian
child. Finally, within the context of
the dependency system, we consider the needs of a dependent child, whether
Indian or non-Indian, for a safe, permanent home. We are mindful of the appropriate use of
judicial resources, including the resources of the social service agency in its
capacity as an arm of the court.

Issues of law are reviewed de novo. (Imperial
Merchant Services, Inc. v. Hunt (2009) 47 Cal.4th 381, 387 ( >Hunt).)

The United States Congress enacted ICWA to respond to a
crisis occurring in Indian tribes in which large numbers of Indian children
were removed from their families for placement in non-Indian homes. (Mississippi
Band of Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 32 ( >Holyfield).) ICWA was intended to promote the stability
and security of Indian tribes and families by establishing minimum standards
for removal of Indian children from their families and placement of Indian
children in foster or adoptive homes reflecting the values of Indian culture. (25 U.S.C. § 1902; In re Jeremiah G. (2009) 172 Cal.App.4th 1514, 1520; In re
Kahlen W. (1991) 233 Cal.App.3d 1414, 1421 (Kahlen W.).)
ICWA applies when the state knows or has reason to know an Indian child
is involved, and seeks to place the child in foster care or terminate parental
rights in an involuntary proceeding. (25
U.S.C. § 1912(a).)

Effective January 1, 2007, the California Legislature
codified ICWA notice requirements in a comprehensive reorganization of statutes
related to the application of ICWA in section 224 et seq. (state ICWA act or
state act). (Damian C., supra, 178 Cal.App.4th at p. 196.) Adopting language from 25 United States Code
section 1912(a), the state ICWA notice provisions direct the court[3] to
provide notice to the parent or Indian custodian, and the tribe, of an Indian
child, if the court "knows or has reason to know that an Indian child is
involved" in the proceedings.
(§§ 224.2, subd. (a), 224.3, subd. (d); see >In re Shane G. (2008) 166 Cal.App.4th
1532, 1538 (Shane G.).) Notice requirements are intended to ensure
the child's Indian tribe will have the opportunity to intervene and assert its
rights in the proceedings. ( >Kahlen W., supra, 233 Cal.App.3d at
p. 1421.)

The decision whether a child is a member of, or eligible
for membership in, the tribe is the sole province of the tribe. (§ 224.3, subd. (c).) However, as we will discuss, before the tribe
makes that decision, the trial court must determine whether it has "reason
to know" the child is an Indian child, requiring notice to the tribe. Under section 224.3, subdivision (b), that
determination is committed to the sound discretion of the trial court.

This court has stated the Legislature, in enacting the
state ICWA act, intended the state notice provisions to be more expansive than
ICWA and to standardize the interpretation of ICWA provisions and inquiry and
noticing practice throughout the state.
(Damian C., supra, 178
Cal.App.4th at p. 197.) However, >Damian C. did not discuss the variance
in the notice requirements between the state ICWA act and the BIA
Guidelines. (§ 224.3, subd. (b);
Guidelines, supra, § B.1(c), p.
67585.)

State law must be liberally construed in favor of Indian
interests. (Holyfield, supra, 490 U.S. at p. 52, fn. 26.) In determining legislative intent, we first
look to the best indicator of legislative intent--the statutory language
itself. (Mejia v. Reed (2003) 31 Cal.4th 657, 663; Adoption of Kelsey S. (1992) 1 Cal.4th 816, 826.) The words must be construed with reference to
the entire system of law of which it is a part.
(Moore v. Panish (1982) 32
Cal.3d 535, 541.) Thus, section
224.3, subdivision (b), is viewed in the context of ICWA, the state act and the
dependency system. Keeping in mind the
primacy of Indian interests in ICWA notice, we ascertain the Legislature's
intent by looking to the words of the statute and giving them " 'their
usual and ordinary meaning.' " ( >Hunt, supra, 47 Cal.4th at p. 387,
quoting DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 601.) "If the statutory language permits more
than one reasonable interpretation, courts may consider other aids, such as the
statute's purpose, legislative history, and public policy." (Coalition of Concerned Communities, Inc.
v. City of Los Angeles
(2004) 34 Cal.4th 733, 737.)

While the state's notice provisions are broader than the
applicable federal statute (Damian C.,
supra, 178 Cal.App.4th at p. 197),
the statutory language in section 224.3, subdivision (b), which establishes the
threshold requirements for notice, is not as expansive as the BIA's
recommendations of the criteria to determine whether the child is an Indian
child. (25 U.S.C. § 1912(a);
Guidelines, supra, § B.1, p.
67585.) The plain language of section
224.3, subdivision (b), permits the conclusion the Legislature intended the
threshold for state ICWA notice to be more restrictive than the threshold
recommended by the Guidelines.
(§§ 224.2, 224.3, subds. (b), (d).)

The differences between the statutory language in state
ICWA notice requirements and section B.1 of the Guidelines are
instructive. First, the Guidelines
recommend the state court provide ICWA notice when it has " >reason to believe the child is an Indian
child."[4] (Guidelines, supra, § B.1, p. 67586.) As
we have discussed, the Legislature has adopted the more restrictive " >reason to know" language from the
federal statute.
(§§ 224.2. 224.3, subd. (d); 25 U.S.C. § 1912(a).) Second, the Guidelines list a number of
circumstances "under which a state court has reason to believe a child involved in an





involuntary child custody proceeding is an Indian child . . . ."[5] (Guidelines, § B.1(c), p. 67586.) If one or more of these circumstances exist,
the Guidelines state the court "shall
seek verification of the child's status from either the [BIA] or the child's
tribe." ( >Id. >, § B.1(a).) Thus, if a state follows the Guidelines, it
must take further action if one or more of the family's circumstances are
described in section B.1(c) of the Guidelines.






TO BE CONTINUED AS PART II….



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[1] Further statutory references are to the
Welfare and Institutions Code.