|
(Cite
as: 186 Cal.App.4th 1411, 112 Cal.Rptr.3d
892) |
Court
of Appeal, Fourth District, Division 1, 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.
No.
D056307.
July
28, 2010.
**894
Andrea R. St. Julian, San Diego, 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, San Diego, under appointment by the Court of Appeal, for
Minor.
BENKE,
Acting P.J.
*1417
Jennifer H. appeals orders terminating parental rights under Welfare and
Institutions Code section 366.26.FN1
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.
FN1.
Further statutory references are to the Welfare and Institutions
Code.
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 **895
section 224.3, subdivision (b), which describes circumstances that may
provide reason to *1418
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.
*1419
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. **896
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/
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.
*1420
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 **897
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 *1421
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
[1]
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,FN2
clarifying this court's decision in Damian
C.
(2009) 178 Cal.App.4th 192, 196, 100 Cal.Rptr.3d 110 (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**898
child. Finally, within the *1422
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.
FN2.
See Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg.
67584 (Nov. 26, 1979) (Guidelines). The Guidelines expressly provide they ?are
not intended to have binding legislative effect? on state courts. (Ibid.;
In
re S.B.
(2005) 130 Cal.App.4th 1148, 1157, 30 Cal.Rptr.3d 726.)
[2]
Issues of law are reviewed de novo. (Imperial
Merchant Services, Inc. v. Hunt
(2009) 47 Cal.4th 381, 387, 97 Cal.Rptr.3d 464, 212 P.3d 736 (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, 109 S.Ct. 1597, 104 L.Ed.2d 29 (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, 92 Cal.Rptr.3d 203; In
re Kahlen W.
(1991) 233 Cal.App.3d 1414, 1421, 285 Cal.Rptr. 507 (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, 100 Cal.Rptr.3d 110.) Adopting language from 25
United States Code section 1912(a), the state ICWA notice provisions direct the
court FN3
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, 83 Cal.Rptr.3d 513 (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, 285 Cal.Rptr. 507.)
FN3.
State law also imposes the obligation on the social worker and probation officer
to provide notice. (?? 224.2, subd. (a), 224.3, subds. (a), (d).)
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.
*1423
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, 100 Cal.Rptr.3d 110.) 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.)
[3][4][5]
State law must be liberally construed in favor of Indian interests.
(Holyfield,**899
supra,
490 U.S. at p. 52, fn. 26, 109 S.Ct. 1597.) 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, 3 Cal.Rptr.3d 390, 74 P.3d 166; Adoption
of Kelsey S.
(1992) 1 Cal.4th 816, 826, 4 Cal.Rptr.2d 615, 823 P.2d 1216.) 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, 186 Cal.Rptr. 475, 652 P.2d 32.) 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, 97 Cal.Rptr.3d 464, 212 P.3d 736, quoting DaFonte
v. Up-Right, Inc.
(1992) 2 Cal.4th 593, 601, 7 Cal.Rptr.2d 238, 828 P.2d 140.) ?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, 21 Cal.Rptr.3d 676, 101 P.3d 563.)
While
the state's notice provisions are broader than the applicable federal statute
(Damian
C., supra,
178 Cal.App.4th at p. 197, 100 Cal.Rptr.3d 110), 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.? FN4
(Guidelines, **900
supra,
? B.1, *1424
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....? FN5
(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.
FN4.
Prior to the 2007 state act, the First Appellate District, citing the
Guidelines, adopted ?reason
to believe
the child is an Indian child? as the threshold to determine whether ICWA notice
was required. (Guidelines, supra,
? B.1, at pp. 67584, 67586; In
re Junious M.
(1983) 144 Cal.App.3d 786, 788, 193 Cal.Rptr. 40.) This language has been
followed by other appellate courts. (See, e.g., In
re Desiree F.
(2000) 83 Cal.App.4th 460, 471, 99 Cal.Rptr.2d 688; In
re Joseph P.
(2006) 140 Cal.App.4th 1524, 1529-1530, 45 Cal.Rptr.3d 591; In
re Elizabeth W.
(2004) 120 Cal.App.4th 900, 906, 16 Cal.Rptr.3d 514; In
re Nikki R.
(2003) 106 Cal.App.4th 844, 853, 131 Cal.Rptr.2d 256; Kahlen
W., supra,
233 Cal.App.3d at p. 1422, 285 Cal.Rptr. 507.) Some reviewing courts have
continued to use ?reason to believe? as the threshold for ICWA notice. (See,
e.g., In
re Z.N.
(2009) 181 Cal.App.4th 282, 298, 104 Cal.Rptr.3d 247; In
re J.B.
(2009) 178 Cal.App.4th 751, 759, 100 Cal.Rptr.3d 679; In
re Alice M.
(2008) 161 Cal.App.4th 1189, 1195, 74 Cal.Rptr.3d 863.)
Under
the state ICWA act, notice provisions are invoked if the court has ?reason to
know? the child is an Indian child. (See also ?? 224.2, subd. (a), 224.3, subds.
(b), (c), (d).) We presume the Legislature was aware of the more flexible
standard in the Guidelines and prior appellate cases when it enacted legislation
concerning ICWA notice requirements. (Cf. People
v. Roberts
(2010) 184 Cal.App.4th 1149, 1180, 109 Cal.Rptr.3d 736, People
v. Strohl
(1976) 57 Cal.App.3d 347, 359-360, 129 Cal.Rptr. 224.) Further, the Judicial
Council adopted ?reason to know? in court rules concerning ICWA notice,
modifying an earlier rule that provided notice if the court had ?reason to
believe? the child was an Indian child. (Cal. Rules of Court, rules
5.481(a)(5)(A), (b)(1), 5.482(a)(1); 1439(f)(5), amended, eff. Jan. 1, 2007; see
In
re Aaron R.
(2005) 130 Cal.App.4th 697, 707, 29 Cal.Rptr.3d 921.) (Further rule references
are to the Cal. Rules of Court.) For these reasons, we believe the more
restrictive ?reason to know? standard in notice provisions under ICWA and the
state act applies when the court considers whether the family's circumstances
indicate the child is an Indian child.
FN5.
?These circumstances include when (1) a party, tribe, or agency informs the
court that the child is an Indian child; (2) a state-licensed agency involved in
child-protection services discovers information suggesting the child is an
Indian child; (3) the child gives the court reason to believe the child is an
Indian child; (4) the residence of the child, biological parent, or Indian
custodian is known to be a predominantly Indian community; and (5) an officer of
the court involved in the proceeding has knowledge the child may be an Indian
child. See Guidelines, 44 Fed.Reg. at 67,586, par. B.1(i)[c] through (v).?
(In
re T.A.
(2008) 378 Ill.App.3d 1083, 1090, 318 Ill.Dec. 408, 883 N.E.2d
639.)
The
Legislature, in enacting section 224.3, subdivision (b), did not adopt the
mandatory language recommended by the Guidelines. We presume the Legislature was
aware of the Guidelines when it enacted the state act. (Cf. People
v. Roberts, supra,
184 Cal.App.4th at p. 1180, 109 Cal.Rptr.3d 736, People
v. Strohl, supra,
57 Cal.App.3d at pp. 359-360, 129 Cal.Rptr. 224.) Rather, section 224.3,
subdivision (b), describes circumstances that may
provide reason to know the child is an *1425
Indian child. (? 224.3, subd. (b)(1)-(3); see also rule 5.481(a)(5).) These
circumstances include, but are not limited to, the following:
?(1)
A person having an interest in the child, including the child, an officer of the
court, a tribe, an Indian organization, a public or private agency, or a member
of the child's extended family provides information suggesting the child is a
member of a tribe or eligible for membership in a tribe or one or more of the
child's biological parents, grandparents, or great-grandparents are or were a
member of a tribe.
?(2)
The residence or domicile of the child, the child's parents, or Indian custodian
is in a predominantly Indian community.
?(3)
The child or the child's family has received services or benefits from a tribe
or services that are available to Indians from tribes or the federal government,
such as the Indian Health Service.? (? 224.3, subd. (b)(1)-(3).)
The
word ?may? indicates possibility or probability (Merriam-Webster's 11th New
Collegiate Dict. (2006) p. 767) and indicates the court has discretion to
evaluate the information concerning the family's circumstances under section
224.3, subdivision (b). If after inquiry FN6
the court or **901
social worker ?knows or has reason to know? an Indian child is involved, notice
must be sent to the child's parents, Indian custodian, if any, and the child's
tribe. (?? 224.2, 224.3, subds. (b), (d).) However, the inclusion of the word
?may? indicates that even if the family's circumstances are described to some
extent in section 224.3, subdivision (b), the court is not required to provide
notice under the state act if those circumstances do not provide ?reason to
know? the child is an ?Indian child.?
FN6.
For purposes of this discussion, we assume the court and social worker have met
their obligations under section 224.3, subdivision (a), to inquire whether a
child is or may be an Indian child, and have obtained, where available, all
pertinent information concerning the circumstances set forth in section 224.3,
subdivision (b), and any other circumstance that may be relevant to the possible
Indian status of the child.
The
meaning of the terms ?Indian child? and ?reason to know? are central to the
court's obligation to provide notice. In construing the extent of the court's
obligation under state law, we look to the words of the statutes to determine
legislative intent and to fulfill the purpose of the law. (Gooch
v. Hendrix
(1993) 5 Cal.4th 266, 282, 19 Cal.Rptr.2d 712, 851 P.2d 1321; In
re Heraclio A.
(1996) 42 Cal.App.4th 569, 574, 49 Cal.Rptr.2d 713) We give significance to
every word, phrase, sentence and part of an act in pursuing the legislative
purpose. (People
v. Canty
(2004) 32 Cal.4th 1266, 1276, 14 Cal.Rptr.3d 1, 90 P.3d 1168.)
Federal
law defines an ?Indian child? as ?any unmarried person who is under age eighteen
and is either (a) a member of a tribe or (b) is *1426
eligible for membership in an Indian tribe and is the biological child of a
member of an Indian tribe.? FN7
(25 U.S.C. ? 1903(4).) Membership requirements vary from tribe to tribe;
enrollment is not always required. (United
States v. Broncheau
(9th Cir.1979) 597 F.2d 1260, 1263; see In
re Arianna R.G.
(2003) 259 Wis.2d 563, 575, 657 N.W.2d 363.) Section 224.1, subdivision (a),
provides the terms used in the state act, including ?Indian child,? are defined
as specified in ICWA, unless the context in which the term is used requires
another definition. (? 224.2, subd. (a).) We can find no reason to depart from
the definition of ?Indian child? in 25 United States Code section 1903(4), as
clarified by applicable case law. (See, e.g., United
States v. Broncheau, supra,
at p. 1263; In
re B.R., supra,
176 Cal.App.4th at pp. 784-785, 97 Cal.Rptr.3d 890; In
re Antoinette S., supra,
104 Cal.App.4th at p. 1408, 129 Cal.Rptr.2d 15; In
re Arianna R.G., supra,
at p. 576, 657 N.W.2d 363, fns. 12 & 13.)
FN7.
The lack of a biological relationship to a tribal member does not preclude ICWA
notice. A tribe may make an exception for an adopted child of a member or
potential member of the tribe. (In
re B.R.
(2009) 176 Cal.App.4th 773, 784-785, 97 Cal.Rptr.3d 890; see In
re Antoinette S.
(2002) 104 Cal.App.4th 1401, 1408, 129 Cal.Rptr.2d 15.)
ICWA
and the applicable federal regulations do not define ?reason to know.?
(In
re S.B., supra,
130 Cal.App.4th at p. 1158, 30 Cal.Rptr.3d 726.) This permits the reasonable
inference the phrase is to be interpreted according to its ordinary meaning.
?Reason to know? is broadly defined as ?information from which a person of
ordinary intelligence ... would infer that the fact in question exists or that
there is a substantial enough chance of its existence that, if the person
exercises reasonable care, the person can assume the fact exists.? (Black's Law
Dict. (8th ed. 2004) p. 1381.) FN8
Under section 224.3, subdivision **902
(b), the fact at issue is the child's status as an Indian child. In this
context, ?chance? is defined as ?the degree of likelihood of such an outcome.?
(Merriam-Webster's 11th New Collegiate Dict., supra,
at p. 205.) Construing ?reason to know? in favor of Indian interests, we hold
the family's circumstances should indicate there is a ?substantial enough
chance,? or low but reasonable probability, the child is a member of, or
eligible for membership in, an Indian tribe. (25 U.S.C. ? 1903(2); ? 224.2,
subd. (a).)
FN8.
The definition of ?reason to know? adopted by the California Supreme Court in
tort cases is instructive. ?[A] ?reason to know? standard does not require proof
that a person must
have inferred the existence of the ultimate fact but only, under the
circumstances described above, that a person would
have inferred the existence of the ultimate fact or would
have regarded the existence of the ultimate fact as so highly probable as to
have behaved in conformity with that belief.? (Doe
v. City of Los Angeles
(2007) 42 Cal.4th 531, 547, 67 Cal.Rptr.3d 330, 169 P.3d 559 (italics in
original); John
B. v. Superior Court
(2006) 38 Cal.4th 1177, 1191, 45 Cal.Rptr.3d 316, 137 P.3d 153.)
Reviewing
courts, including this court, have recognized there must be sufficient
indication the child is an Indian child within the meaning of ICWA to invoke
notice requirements. (In
re Jeremiah G., supra,
172 Cal.App.4th at p. 1520, 92 Cal.Rptr.3d 203; Shane
G., supra,
166 Cal.App.4th at p. 1538, 83 Cal.Rptr.3d 513; In
re O.K.
(2003) 106 *1427
Cal.App.4th 152, 157, 130 Cal.Rptr.2d 276; see In
re Christopher I.
(2003) 106 Cal.App.4th 533, 567, 131 Cal.Rptr.2d 122.) Thus, a mere hint or
suggestion of Indian ancestry is no longer sufficient to require notice under
state law. (Contra, In
re Robert A.
(2007) 147 Cal.App.4th 982, 989, 55 Cal.Rptr.3d 74; In
re Nikki R., supra,
106 Cal.App.4th at p. 848, 131 Cal.Rptr.2d 256; In
re Antoinette S., supra,
104 Cal.App.4th at p. 1408, 129 Cal.Rptr.2d 15; Dwayne
P. v. Superior Court
(2002) 103 Cal.App.4th 247, 258, 126 Cal.Rptr.2d 639.) ?[B]oth the federal
regulations and the California Welfare & Institutions Code require more than
a bare suggestion that a child might be an Indian child.? (In
re Jeremiah G., supra,
at p. 1520, 92 Cal.Rptr.3d 203.)
The
opinions of the Supreme Courts of Wisconsin and Colorado concerning this issue
are relevant here. The Wisconsin Supreme Court stated the term ?Indian child? as
defined by ICWA means ?something more specific than merely having Native
American ancestors.? (In
re Arianna R.G., supra,
259 Wis.2d at p. 574, 657 N.W.2d 363.) The Colorado Supreme Court adopted a
totality of the circumstances test to determine whether ICWA notice is required.
It stated ?[p]recisely what constitutes ?reason to know? or ?reason to believe?
in any particular set of circumstances will necessarily evade meaningful
description. As in other contexts, reasonable grounds to believe must depend
upon the totality of the circumstances and include consideration of not only the
nature and specificity of available information but also the credibility of the
source of that information and the basis of the source's knowledge.?
(B.H.
v. People ex rel. X.H.
(Colo.2006) 138 P.3d 299, 303.)
[6]
The Indian status of the child does not have to be certain to invoke the notice
requirement. (Dwayne
P. v. Superior Court, supra,
103 Cal.App.4th 247, 126 Cal.Rptr.2d 639; In
re O.K., supra,
106 Cal.App.4th 152, 130 Cal.Rptr.2d 276.) However, while the threshold of
providing notice under state law is low, it is not without reasonable limits.
(Cf. In
the Interest of Z.H.
(Iowa App.2007) 740 N.W.2d 648, 653.) In view of the totality of the family's
circumstances, a child's specific but attenuated Indian heritage may not be
sufficient to provide reason to know an Indian child is involved. Where the
totality of the family's circumstances does not indicate there is a low but
reasonable probability the child is an Indian child, the court does not have
reason to know an Indian child is involved, and notice is not required. (Cf.
B.H.
v. People ex rel. X.H., supra,
138 P.3d at p. 303.) This is the case here.
Mrs.
H. provided specific and credible information about the family's Indian heritage
and her own continued participation in an annual intertribal cultural event.
While the information Mrs. H. provided about Skyler's great-great-great
grandfather**903
could be broadly construed to suggest Skyler's great-grandparent was a member of
a Cherokee tribe, an overbroad construction does not serve ICWA's goal to
promote the security and stability of *1428
Indian tribes (25 U.S.C. ? 1902) or the child's interest in a prompt resolution
of his or her custody status. (In
re A.M.
(2008) 164 Cal.App.4th 914, 925, 79 Cal.Rptr.3d 620.) Skyler is five generations
removed from the last family member known to be a member of an Indian tribe.
Jennifer stated she had Indian heritage but it was ?too little to know.? Mrs. H.
did not claim she or one of her parents was a tribal member. Under the totality
of these circumstances, it is not reasonably probable Skyler is an Indian child.
Thus, the court did not have reason to know Skyler is a member of, or eligible
for membership in, an Indian tribe, and notice is not required.
ICWA
and the state act do not contravene the goals of California's dependency scheme,
which is to reunify the family when safe for the child, and to provide the child
with a safe, permanent, stable home within the time limits defined by the
Legislature. (?? 300.2, 361.5, subd. (a); see ?? 366.21, 366.22, 366.26.) If the
dependent child is an Indian child, this home must ?reflect the unique values of
the child's tribal culture and is best able to assist the child in establishing,
developing, and maintaining a political, cultural, and social relationship with
the child's tribe and tribal community.? (? 224, subd. (1); see ?? 361.31,
361.7.) Where the child's family has not had a relationship with an Indian tribe
for many generations, as here, notice becomes a formality that does not serve
ICWA's goals or the child's best interests. We do not believe the Legislature
intended the courts to engage in ?empty formalities? that result in waste of
scarce judicial resources. (In
re G.L.
(2009) 177 Cal.App.4th 683, 696, 99 Cal.Rptr.3d 356, citing In
re E.W.
(2009) 170 Cal.App.4th 396, 402, 88 Cal.Rptr.3d 338; In
re Z.N., supra,
181 Cal.App.4th at pp. 300-301, 104 Cal.Rptr.3d 247.)
Interpreting
section 223.4, subdivision (b), to require notice where the family's Indian
heritage is specific but attenuated would delay permanency for a child such as
Skyler, who was first made a dependent of the juvenile court in 2003, and is
only now finding a safe, stable and permanent home. We conclude the
circumstances presented here do not provide the court reason to know Skyler is
an Indian child, and reversal for ICWA notice is not required. (Shane
G., supra,
166 Cal.App.4th at p. 1539, 83 Cal.Rptr.3d 513.)
II
SECTION
388
[7]
Jennifer contends the trial court erred when it arbitrarily denied an
evidentiary hearing on the merits of her section 388 petition. She argues the
petition stated a prima facie case of changed circumstances and the child's best
interests, and thus the court was required by law to hold a hearing. Jennifer
also argues the court considered the evidence presented in the *1429
Agency's court reports without affording her an opportunity to be heard and to
controvert the evidence against her.
Under
section 388, a party may petition the court to change, modify or set aside a
previous court order. The petitioning party has the burden of showing, by a
preponderance of the evidence, there is a change of circumstances or new
evidence, and the proposed modification is in the child's best interests. (?
388; In
re Jasmon O.
(1994) 8 Cal.4th 398 415, 33 Cal.Rptr.2d 85, 878 P.2d 1297; In
re Amber M.
(2002) 103 Cal.App.4th 681, 685, 127 Cal.Rptr.2d 19.)
[8][9]
The court must liberally construe the petition in favor of its sufficiency.
(In
re Marilyn H.
(1993) 5 Cal.4th 295, 309, 19 **904
Cal.Rptr.2d 544, 851 P.2d 826 (Marilyn
H.);
rule 5.570(a).) ?The parent need only make a prima facie showing to trigger the
right to proceed by way of a full hearing.? (Marilyn
H.,
at p. 310, 19 Cal.Rptr.2d 544, 851 P.2d 826; In
re Hashem H.
(1996) 45 Cal.App.4th 1791, 1798-1799, 53 Cal.Rptr.2d 294.) ?The prima facie
requirement is not met unless the facts alleged, if supported by evidence given
credit at the hearing, would sustain a favorable decision on the petition.?
(In
re Zachary G.
(1999) 77 Cal.App.4th 799, 806, 92 Cal.Rptr.2d 20 (Zachary
G.).)
When ?determining whether the petition makes the necessary showing, the court
may consider the entire factual and procedural history of the case.?
(In
re Justice P.
(2004) 123 Cal.App.4th 181, 189, 19 Cal.Rptr.3d 801; see In
re Jamika W.
(1997) 54 Cal.App.4th 1446, 1450-1451, 63 Cal.Rptr.2d 513.)
[10]
We review a summary denial of a hearing on a modification petition for abuse of
discretion. (Zachary
G., supra,
77 Cal.App.4th at p. 808, 92 Cal.Rptr.2d 20.)
[11]
Jennifer misconstrues the record when she argues the court violated her due
process rights to be heard when it accepted the evidence offered by the Agency.
The court is required to read and consider the Agency's reports when it selects
a permanency plan for a child. (? 366.26, subd. (b).) Jennifer filed her section
388 petition only two days before the scheduled section 366.26 hearing, and the
court did not address Jennifer's petition until the opening of the hearing. The
court's remarks clearly show it relied on the uncontroverted history of the
case, not on any new
evidence, when it determined whether Jennifer's petition stated a prima facie
case. The trial court may consider the entire factual and procedural history of
the dependency proceedings when it determines whether to grant a hearing on the
merits of a section 388 petition. (In
re Jasmon O., supra,
8 Cal.4th at p. 415, 33 Cal.Rptr.2d 85, 878 P.2d 1297.) Here, the court
considered Jennifer's failure to reunify with Skyler in the 2003 case,
Jennifer's criminal history and drug use, and the fact Skyler had not lived with
Jennifer for many years. These facts were not subject to challenge. We conclude
that Jennifer's due process rights to be heard and to challenge the evidence
against her were not violated.
[12]
*1430
The trial court's summary denial of the section 388 petition is fully supported
by the record. (Zachary
G., supra,
77 Cal.App.4th at p. 808, 92 Cal.Rptr.2d 20.) Jennifer averred she had
maintained her sobriety for six months after having used methamphetamine for
almost 20 years. The court drew the reasonable inference Jennifer's short period
of sobriety relative to her lengthy substance abuse history did not establish a
prima facie case of changed circumstances. Further, Jennifer did not show it was
in Skyler's best interests to postpone a permanency decision in the hope she
might reunify with Jennifer. Jennifer effectively abandoned Skyler when she was
a baby, and went for long periods of time without visiting her or being involved
in her life. She did not participate in reunification services in the 2003 case,
and had been periodically incarcerated since 2003. In view of these
circumstances, the court did not err when it summarily denied Jennifer's section
388 petition.
III
THE
BENEFICIAL PARENT-CHILD RELATIONSHIP EXCEPTION
[13]
Jennifer contends the trial court erred when it terminated her parental rights.
She argues termination of parental rights would be detrimental to Skyler because
they shared a beneficial parent-child relationship. (? 366.26, subd.
(c)(1)(B)(i).)
**905
[14] At a section 366.26 hearing, the trial court may select one of three
alternative permanency plans: adoption, guardianship, or long-term foster care.
(In
re Taya C.
(1991) 2 Cal.App.4th 1, 7, 2 Cal.Rptr.2d 810.) Unless the child is living with a
relative who is unwilling or unable to adopt the child, there is a strong
preference for adoption over alternative plans. (? 366.26, subd. (c)(1)(A);
San
Diego County Dept. of Social Services v. Superior Court
(1996) 13 Cal.4th 882, 888, 55 Cal.Rptr.2d 396, 919 P.2d 1329; Zachary
G., supra,
77 Cal.App.4th at pp. 808-809, 92 Cal.Rptr.2d 20.) If the court determines the
child is likely to be adopted, the burden shifts to the parent to show
termination of parental rights would be detrimental to the child under one of
the exceptions listed in section 366.26, subdivision (c)(1).
An
exception to termination of parental rights exists when ?[t]he parents have
maintained regular visitation and contact with the child and the child would
benefit from continuing the relationship.? (? 366.26, subd. (c)(1)(B)(i).)
?Benefit from continuing the relationship? means ?the [parent-child]
relationship promotes the well-being of the child to such a degree as to
outweigh the well-being the child would gain in a permanent home with new,
adoptive parents.? (In
re Autumn H.
(1994) 27 Cal.App.4th 567, 575, 32 Cal.Rptr.2d 535 (Autumn
H.).)
The exception does not require proof the child has a *1431
?primary attachment? to a parent or the parent has maintained day-to-day contact
with the child. (In
re S.B.
(2008) 164 Cal.App.4th 289, 299, 79 Cal.Rptr.3d 449; In
re Brandon C.
(1999) 71 Cal.App.4th 1530, 1534-1538, 84 Cal.Rptr.2d 505; In
re Casey D.
(1999) 70 Cal.App.4th 38, 51, 82 Cal.Rptr.2d 426.)
If
the parent has continued to regularly visit and contact the child, and the child
has maintained or developed a significant, positive, emotional attachment to the
parent, ?the court balances the strength and quality of the natural
parent/
We
determine whether there is substantial evidence to support the court's ruling by
reviewing the evidence most favorably to the prevailing party and indulging in
all legitimate and reasonable inferences to uphold the court's ruling.
(Autumn
H., supra,
27 Cal.App.4th at p. 576, 32 Cal.Rptr.2d 535; In
re S.B., supra,
164 Cal.App.4th at p. 298, 79 Cal.Rptr.3d 449.)
Jennifer
points to several of her more positive interactions with Skyler during her
supervised visitation and asks us to reweigh the evidence. The record shows
Skyler enjoyed visiting Jennifer. However, for the same reasons we have
previously discussed, ante,
at page 904, we conclude there is ample evidence to support the court's ruling.
When Skyler was a baby, Jennifer was ?running the streets? with her. Jennifer
did not consistently visit Skyler when she was in Grandmother's care. Jennifer
did not attempt to reunify with Skyler in the 2003 dependency proceedings. She
was periodically incarcerated during Skyler's guardianship. When the 2008
proceedings began, Kenneth stated Jennifer had not been involved with Skyler for
three years. Skyler was living in squalid, filthy conditions and was begging the
neighbors for food. Jennifer did not start visiting Skyler regularly until
**906
late 2008, when Skyler was nine years old. The record clearly establishes
Jennifer's lack of visitation and contact with Skyler, and the beneficial
parent-child relationship exception fails on that prong alone.
Further,
because of Jennifer's lack of consistent contact with Skyler, the trial court
could reasonably conclude Skyler did not view Jennifer as a parental figure. The
social worker, in her capacity as an expert witness, stated Skyler did not have
a beneficial parent-child relationship with either her mother or father. When
the social worker spoke to Skyler about the possibility she might not be able to
visit Jennifer if she were adopted, Skyler said, *1432
?Yeah, that's fine.? The social worker opined Skyler had some emotional bonds
with her birth family, but those bonds did not outweigh the benefits of
stability and permanency that adoption would provide. (Autumn
H., supra,
27 Cal.App.4th at p. 575, 32 Cal.Rptr.2d 535.)
Jennifer
did not meet either prong of the beneficial parent-child relationship exception
to termination of parental rights. Further, 11-year-old Skyler clearly
understood the concept of adoption and wanted to be adopted by her foster
family. Skyler's understanding and preference clearly support the finding she
would not be greatly harmed by termination of parental rights. (? 366.26, subd.
(c)(1); Autumn
H., supra,
27 Cal.App.4th at p. 575, 32 Cal.Rptr.2d 535.) The court's finding the exception
did not apply is fully supported by the record.
DISPOSITION
The
findings and orders are affirmed.
WE
CONCUR: HUFFMAN and AARON, JJ.