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In re Skyler H.

July 28, 2010


APPEAL from orders of the Superior Court of San Diego County, Gary M. Bubis, Judge. Affirmed. (Super. Ct. No. J514948).

The opinion of the court was delivered by: Benke, Acting P. J.


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.


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.


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 ...

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