In re T.B. CA2/6

Filed 12/3/15 In re T.B. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

In re T.B. III, a Person Coming Under the 2d Juv. No. B260826
Juvenile Court Law. (Consolidated with B262032 & B262711)
(Super. Ct. No. 14JV-00040)
(San Luis Obispo County)

SAN LUIS OBISPO COUNTY CHILD ORDER MODIFYING OPINION
PROTECTIVE SERVICES, [NO CHANGE IN JUDGMENT]

Plaintiff and Respondent,

v.

L.S. et al.,

Defendants and Appellants.

THE COURT:
The court on its own motion modifies the opinion filed herein on
December 1, 2015, to change the name of the Plaintiff and Respondent in this case
from "Santa Barbara County Child Protective Services" to "San Luis Obispo County
Child Protective Services."
Filed 12/1/15 In re T.B. CA2/6 (unmodified version)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

In re T.B. III, a Person Coming Under the 2d Juv. No. B260826
Juvenile Court Law. (Consolidated with B262032 & B262711)
(Super. Ct. No. 14JV-00040)
(San Luis Obispo County)

SANTA BARBARA COUNTY CHILD
PROTECTIVE SERVICES,

Plaintiff and Respondent,

v.

L.S. et al.,

Defendants and Appellants.

T.B. Jr. (father) appeals the juvenile court's order terminating parental
rights to his minor son T.B. III (T.B.) and selecting adoption as the child's permanent
plan. (Welf. & Inst. Code,1 § 366.26). T.B.'s paternal grandmother L.S.
(grandmother) appeals the denial of her section 388 petition requesting that T.B. be

1 All statutory references are to the Welfare and Institutions Code.
placed with her.2 Father contends the court failed to comply with the notice
requirements of the Indian Child Welfare Act (ICWA), (25 U.S.C. § 1901, et seq.).
Grandmother contends the court abused its discretion in denying her section 388
petition. We affirm.
FACTS AND PROCEDURAL HISTORY
Four days after T.B.'s birth in February10, 2014,3 the San Luis Obispo
County Department of Social Services (DSS) filed a section 300 petition alleging that
he had tested positive for amphetamines at birth and that his mother C.B. (mother)4
gave birth to him while under the influence of drugs and alcohol. Father was in jail at
the time for his second violation of a restraining order issued after he kicked mother in
the stomach while she was pregnant.
At the detention hearing, DSS reported that "[r]elative placements
identified by the parents were contacted, but voiced that they would need additional
time to make a decision." T.B. was placed in a foster home.
Both parents completed and signed a Parental Notification of Indian
Status (ICWA-020). Father indicated he may have Indian ancestry through the
Cherokee and/or Blackfeet tribes. Although mother had no knowledge of any Indian
ancestry, the maternal great-grandmother, who was also present at the hearing, stated

2 Grandmother also filed a notice of appeal from the order terminating parental
rights. On our own motion, we designated that appeal (B260826) as the lead case and
consolidated it with father's appeal from the same order (B262032) and grandmother's
appeal from the order denying her section 388 petition (B262711). In our
consolidation order, we also directed the parties the address in their briefs whether
grandmother had standing to challenge the order terminating parental rights. In her
briefing, grandmother stated that she was limiting her appeal to the order denying her
section 388 petition, and thereby effectively abandoned her appeal from the parental
termination order.

3 Unless otherwise specified, all further year references are to the year 2014.
4 Mother is not a party to this appeal.
2
that both she and her husband were "part American Indian." She identified her
husband's tribal affiliation as Comanche and her own as Nez Perce, but she "[did]n't
have any verification of that." She did not know if her husband's Indian heritage came
from his birth state of Texas and offered that "[w]e are both a very small portion of it."
The maternal great-grandmother believed that her Indian heritage came from her
maternal grandfather and gave his name and state of birth. She added that she had
"some genealogy papers" and would "look in earnest for that." No additional
information was produced, but she completed an ICWA-020 form indicating that T.B.
may have Comanche and Nez Perce ancestry.
At the conclusion of the detention hearing, T.B. was ordered detained
and the matter was set for a combined jurisdiction and disposition hearing. In its
report for that hearing, DSS stated that "[r]elative placements will continue to be
assessed. On February 18, 2014, [the maternal grandmother] reported she could not be
a placement but may be interested in concurrent planning. [¶] On March 10, 2014,
[grandmother] reported she may want to care for [T.B.] and had made plans to discuss
[sic] with her significant other. It is unclear at this time if historical factors or
concurrent circumstances may prevent [grandmother] from being assessed as an
appropriate placement, but the Department will move forward with assessment if
requested by [grandmother]. . . ." The maternal grandmother said her family did not
want T.B's permanency to be delayed any further and wanted him to be "placed with
prospective adoptive parents."
Mother and father were apparently still living together in violation of the
restraining order and that neither of them had visited T.B. since his removal. DSS
nevertheless recommended that mother be offered reunification services and that father
be offered services if he were found to be T.B.'s presumed father rather than merely an
alleged father.
At the conclusion of the jurisdiction and disposition hearing, mother was
awarded supervised weekly visitation and was ordered to comply with DSS's

3
recommended case plan. The court also awarded visitation for grandmother, who was
present at the hearing and offered that she had recently left a voicemail message with
the social worker "about wanting to take the baby . . . ." No services or visitation were
offered to father because he had yet to establish he was the presumed father of T.B.
The three-month review hearing was set for June, and the six-month review hearing
was set for September. In April, father was declared T.B.'s presumed father.
In May, the social worker made an early-evening unannounced visit at
grandmother's home after receiving information that excessive alcohol was being
consumed there. Grandmother answered the door and said she and her boyfriend were
sleeping. Grandmother had a "slight odor" of alcohol. She allowed the social worker
to enter the house and offered that she "ha[d] nothing to hide." The social worker
entered the house and met grandmother's boyfriend, who had a flushed face. The
social worker found three cases of beer in a refrigerator in the garage along with
numerous empty beer cans in a recycling bin. Grandmother claimed that the beer and
empty cans were there because they had a barbeque the previous night.
The social worker's report of her visit at grandmother's house was
included in DSS's report for the three-month review hearing. It was also reported that
grandmother was shaking and had slurred speech on more than one of her interactions
with the social worker. DSS also continued to receive reports of alcohol abuse by
grandmother, her live-in boyfriend, and her teenage daughter. Grandmother had
requested that T.B. be placed with her and had initiated the process for resource family
approval (RFA) (§§ 361.2, subd. (e)(4), 16519.5) through foster care licensing with
DSS, but her application was yet to be completed and DSS remained concerned about
the grandmother's ability to attend to T.B.'s special needs. Moreover, grandmother had
only visited T.B. once during the entire three-month review period.
DSS also reported that friends of the maternal grandmother (the
prospective adoptive parents) had identified themselves as a potential nonrelated
extended family member (NREFM) placement for T.B. Although mother and father

4
had not visited T.B. since his detention or participated in services, DSS recommended
that they both be offered services for an additional three months.
In early June, DSS mailed ICWA 030 notices of the three-month
review hearing to the United Band of Cherokee Indians in Oklahoma, the Eastern
Band of Cherokee Indians, the United Keetowooah Band of Cherokee, the Comanche
Nation, the Blackfeet Tribe of Montana, and the Nez Perce Tribe of Idaho. The
notices included the parents' names, addresses and dates of birth, the names and
dates and places of birth of grandmother, the maternal grandfather, and the maternal
great-grandmother and great-grandfather, and the name and place of death of the
paternal great-grandmother. The return receipts from all six tribes were filed with the
court prior to the three-month review hearing. DSS also filed the responses of five of
the tribes indicating that T.B. was neither a member nor eligible to become a member
of their tribe. The Nez Perce tribe did not respond.
At the conclusion of the three-month review hearing, the court found that
the ICWA notice requirements had been satisfied and that the ICWA did not apply.
The court then adopted DSS's recommendations and set the matter for a six-month
status review hearing three days prior to the six-month review hearing in September.
In July, grandmother filed a de facto parent request (JV-295) as to T.B.
In a supporting declaration, grandmother stated she was visiting with T.B. for an hour
every other week and claimed she and her boyfriend had "completed all of the
requirements needed to attain legal custody of" the child. She also claimed that she
and her daughter had overheard the two social workers assigned to the case discussing
a plan to cast grandmother as an alcoholic as a result of her prior DUI conviction and
have a third party adopt T.B. in exchange for "a finders [sic] fee of $10,000.000 in
cash . . . ."
The court set a hearing on grandmother's de facto parent request and
ordered DSS to submit a written response. DSS opposed the request on the ground it
contained inaccurate information and because grandmother's "contact and relationship

5
with the minor does not rise to the level of De Facto Parent status as there have been
less than 10 visits total at one house [with] each visit supervised by the current foster
parent." DSS also noted that grandmother and her boyfriend had requested that T.B.
be placed with them, but they could not be formally assessed because they had yet to
complete the requirements for such a placement.
Both social workers filed declarations in opposition to grandmother's de
facto parent request. One recounted a February telephone conversation with
grandmother in which grandmother said she did not want to be considered for relative
placement but "may be interested in concurrent planning." Grandmother sounded
intoxicated when she made a call to the after-hours social worker six days later. When
the social worker confronted grandmother with this, she denied being intoxicated and
claimed she was merely crying. Both social workers denied there was a scheme to
"sell" T.B., but acknowledged they had referred to grandmother's alcohol abuse during
a conversation in the hall prior to the jurisdiction and disposition hearing in March. It
was also noted that grandmother was only an alleged grandmother at the time and that
other relatives and an NREFM had expressed an interest in having T.B. placed with
them.
In conjunction with the hearing on grandmother's request for de facto
parent status, DSS filed another report indicating that it had completed a placement
assessment for grandmother but was "unable to approve [grandmother] and her partner
as a placement option for [T.B.]" The report stated that grandmother had received a
certified letter informing her of this and had signed the return receipt. DSS also
disputed numerous factual assertions in grandmother's response.
At the conclusion of the hearing, the court found that grandmother did
not qualify for de facto parent status and denied her request.
In its report for the six-month status hearing, DSS recommended that
reunification services be terminated as to both parents, whose whereabouts were
unknown, and that the matter be set for a section 366.26 hearing. The report stated

6
that T.B. was transitioning into the home of his prospective adoptive parents, who
were "willing to maintain family bonds if they were to provide permanency to [T.B.]"
Although grandmother had initiated the RFA process, she and her boyfriend had yet to
complete that process. DSS also stated that "[a]lthough the RFA process has not been
completed, the Department has assessed [grandmother and her boyfriend] for
placement. Considering [T.B.]'s physical, psychological, educational, medical, and
emotional needs, the Department does not believe it is in [T.B.]'s best interests to be
placed in the care of [grandmother]. The Department has conducted a thorough
assessment and background check of both [grandmother] and [grandmother's
boyfriend] and due to issues found in those processes, this placement cannot be
approved by the Department." Grandmother had also missed or rescheduled
visits with T.B. and told the foster parent she planned to "get the social worker in
trouble . . . ."
At the six-month review hearing, father's counsel asked if he could
question the social worker regarding DSS's decision to deny placement with
grandmother. The social worker testified that although grandmother had informed her
that she was no longer living with her boyfriend, grandmother's "[c]hild welfare and
criminal history" precluded DSS from approving T.B.'s placement with her. In light of
that information and other relevant factors, DSS decided not to seek a criminal records
exemption (§ 361.4, subd. (d)(2)). In response to questioning by the court,
grandmother said that some of the information in the DSS report was true while "some
of it wasn't" and claimed she had "not been in any kind of trouble with the law" except
for her DUI conviction in 2000. She also asked the court to "further review" the
placement determination and noted that she "currently run[s] two businesses" and
"take[s] care of [her] daughter." The court noted that the issue of placement was not
before the court and advised grandmother to confer with father's counsel "about the
different options and how you can potentially bring the issue that you want before the
court."

7
 At the conclusion of the hearing, the court terminated reunification
services for both parents and set the matter for a section 366.26 hearing. Two days
later, grandmother filed a section 388 petition on form JV-180 requesting that court
change its prior order and place T.B. with her. She claimed that circumstances had
changed in that her adult son and his partner had moved out of her house and that she
wanted T.B. to be placed with her so they could "start a bond" and "[b]ecause it would
be healthier for [T.B.] to grow up within his biological family . . . ."
The court ordered DSS to file a response and set the matter for a hearing.
At that hearing, DSS argued that grandmother' motion was facially insufficient and
reiterated that she had been rejected as a placement for T.B. The social worker
testified that after father was declared the presumed father she "had [grandmother]
complete the assessment over the phone and that was passed on to licensing who starts
the RFA . . . ." Contrary to grandmother's claim, she had yet to complete the RFA
process. T.B. had moved into his prospective adoptive home a month earlier.
Moreover, during her visits grandmother never inquired about T.B.'s substantial
medical needs and had to be told how to interact with him. DSS also offered the letter
sent to grandmother informing her that her request that T.B. be placed with her had
been rejected due to, among other things, her prior DUI conviction and "ongoing
concerns as to alcohol use in [her] home . . . ."
Grandmother testified at the hearing that she had turned in all the
required paperwork for RFA the previous September. She also claimed that she rarely
drank alcohol and that the party at her house took place shortly before the social
worker made her unannounced visit.
The court accepted an offer of proof that grandmother's RFA application
remained incomplete and that DSS had received a community complaint that "there
were copious amounts of alcohol in [grandmother's] home (and) that the family drinks
every night." It was also established in an offer of proof that grandmother had been
given preferential placement consideration after father was declared the presumed

8
father, and that grandmother's background check (which included a DUI conviction
and recent reports of alcohol abuse and potential domestic violence) led DSS to
conclude that T.B.'s placement with her would not be in his best interests.
After taking the matter under submission, the court denied grandmother's
section 388 petition on the grounds that she had failed to establish either a change in
circumstances or that placing T.B. with her would be in the child's best interests. The
court found that DSS had complied with relative placement preference requirements
set forth in subdivision (a) of section 361.3, and addressed factors relevant to its
determination that grandmother was not a suitable placement for T.B. Although the
court was not pleased with the fact that the social workers had discussed grandmother's
purported alcohol problems in the hallway such that grandmother was able to hear
them, it noted that instead of heeding that knowledge grandmother hosted a barbeque
at which a great deal of alcohol was consumed. The court also criticized DSS for its
delay in notifying grandmother of its placement decision, yet noted that grandmother
had received such notice and did not request a stay of the court's placement order.
Father appeared for the first time in this case at the February 2015
section 366.26 hearing. Moreover, he only appeared to state through his attorney that
he wanted grandmother to adopt T.B. At the conclusion of the hearing, the court
found that T.B. was likely to be adopted and terminated parental rights.
DISCUSSION
Grandmother's Appeal
Grandmother contends the court abused its discretion in denying her
section 388 modification petition. We conclude otherwise.
As relevant here, section 388 provides that any person with an interest in
a dependency proceeding may petition for a hearing to change or set aside an order on
the ground of changed circumstances. (Id. at subd. (a)(1).) The petitioning party bears
the burden of proving by a preponderance of the evidence that circumstances have

9
changed and that the requested change would be in the child's best interests. (Id. at
subd. (b); In re D.B. (2013) 217 Cal.App.4th 1080, 1089.)
"A ruling on a section 388 petition is 'committed to the sound discretion
of the juvenile court, and the trial court's ruling should not be disturbed on appeal
unless an abuse of discretion is clearly established. [Citations.]' [Citation.] Thus, we
may not reverse unless the juvenile court exceeded the bounds of reason, and we have
no authority to substitute our decision for that of the lower court where two or more
inferences can reasonably be deduced from the facts. [Citation.]" (In re D.B., supra,
217 Cal.App.4th at pp. 1088-1089.)
The court did not abuse its discretion in finding that grandmother failed
to meet her burden of proving changed circumstances or that placement of T.B. with
her would be in the child's best interests. Indeed, grandmother does not assert
otherwise. Instead, she claims the court "construed" her section 388 petition "as a
section 361.3 relative request for placement." Although the court addressed that
request, it did not relieve grandmother of her burden of proof under section 388.
Moreover, grandmother's arguments regarding her rights to preferential
placement consideration under section 361.3 are unavailing. That statute provides that
relatives of a child removed from the physical custody of his or her parents pursuant to
section 361 who request that the child be placed with them are given preferential
consideration. (§ 361.3, subd. (a).) In determining whether such a placement is
appropriate, the social worker and court shall consider numerous factors, including and
most importantly the best interests of the child. (Ibid.) The statute does not mean,
however, that placement with a relative must be preferred over a non-relative
placement. Rather, the relative is only entitled to preferential consideration for
placement. Our Supreme Court has stated that "the court is not to presume that a child
should be placed with a relative, but is to determine whether such a placement is
appropriate, taking into account the suitability of the relative's home and the best
interest of the child. [Citation.]" (In re Stephanie M. (1994) 7 Cal.4th 295, 321.)

10
 Here, the record demonstrates that DSS considered grandmother as a
possible relative placement for T.B., but were unable to approve that placement due to
her prior DUI conviction and the evidence that excessive alcohol continued to be
consumed in her home. T.B. could not be placed in her home without a grant of a
criminal records exemption (exemption) by the State Department of Social Services or
its county designee (agency). (§ 361.4, subd. (d)(2).) Grandmother provided no basis
for DSS or the court to conclude that such an exemption was warranted. Over the
course of six pages of the reporter's transcript, the court complied with its duty to
address the reasons why grandmother's relative placement request had been denied.
Although the court took issue with certain aspects of DSS's handling of the case, it
ultimately found the agency had complied with section 361.3 in denying
grandmother's relative placement request, and that she had received proper notice of
that decision. We review that ruling for an abuse of discretion (In re Stephanie M.,
supra, 7 Cal.4th at pp. 319-320.), and conclude there was no such abuse here.
Grandmother claims that DSS failed to comply with the notice and
assessment procedures for a relative placement request as provided in sections 309,
subdivision (e)(1), and section 361.3. As we have noted, the reasons for denying
grandmother's placement request are clear from the evidence and discussion at the
hearing and support the court's decision. Moreover, grandmother was present at all of
the relevant hearings and had ample notice of DSS's placement decision. Because it is
not reasonably probable that any failure to fully comply with the relevant notice and
assessment requirements would have resulted in T.B.'s placement with grandmother,
any such error was harmless. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1137,
disapproved on another point in Renee J. v. Superior Court (2001) 26 Cal.4th 735,
748, fn. 6.)5

5 In light of our conclusion, we need not address DSS's contention that
grandmother, who represented herself below in propria persona, forfeited her right to
assert these claims on appeal by failing to raise them below.
11
 Father's Appeal
Father contends the order terminating parental rights must be reversed
because the juvenile court erred in determining the ICWA did not apply. We disagree.
The ICWA protects the interests of Indian children and promotes the
stability and security of Indian tribes by establishing minimum standards for, and
permitting tribal participation in, dependency actions. (25 U.S.C. § 1901 et seq.) "The
ICWA presumes it is in the best interests of the child to retain tribal ties and cultural
heritage and in the interest of the tribe to preserve its future generations, a most
important resource. [Citation.]" (In re Desiree F. (2000) 83 Cal.App.4th 460, 469.)
The juvenile court and social services agencies have a duty to inquire at the outset of
the proceedings whether a child subject thereto is, or may be, an Indian child. (Id. at p.
470.)
The duty to provide notice under the ICWA arises when "the court
knows or has reason to know that an Indian child is involved. . . ." (25 U.S.C.
1912(a).) An "Indian child" is one who is either a "member of an Indian tribe or . . .
eligible for membership in an Indian tribe and is the biological child of a member of an
Indian tribe." (Id. at § 1903(4).) "The notice[s] . . . must contain enough information
to be meaningful. [Citation.] The notice must include: if known, (1) the Indian child's
name, birthplace, and birthdate; (2) the name of the tribe in which the Indian child is
enrolled or may be eligible for enrollment; (3) names and addresses of the child's
parents, grandparents, great grandparents, and other identifying information; and (4) a
copy of the dependency petition. [Citation.]" (In re Francisco W. (2006) 139
Cal.App.4th 695, 703.) "It is essential to provide the Indian tribe with all available
information about the child's ancestors, especially the one with the alleged Indian
heritage. [Citation.]" (Ibid.; In re C.D. (2003) 110 Cal.App.4th 214, 224-225.)
We review compliance with the ICWA under the harmless error
standard. (In re E.W. (2009) 170 Cal.App.4th 396, 402-403.) Notice is sufficient if

12
there was substantial compliance with the applicable provisions of the ICWA. (In re
Christopher I. (2003) 106 Cal.App.4th 533, 566.)
Father claims the notice should have included more specific information
regarding the names, addresses, and birth dates of T.B.'s ancestors with possible Indian
heritage. Father fails, however, to explain how including more information may have
led the tribes to respond differently. "'[T]echnical compliance with the [ICWA's]
notice requirements may not be required where there has been substantial compliance.'
[Citation.]" (In re I.W. (2009) 180 Cal.App.4th 1517, 1531.) "The purpose of the
ICWA notice provisions is to enable the tribe or the [Bureau of Indian Affairs] to
investigate and determine whether the child is in fact an Indian child. [Citation.]
Notice given under ICWA must therefore contain enough information to permit the
tribe to conduct a meaningful review of its records to determine the child's eligibility
for membership. [Citations.]" (In re Cheyanne F. (2008) 164 Cal.App.4th 571, 576.)
The information provided here was sufficient for all of the tribes to make such a
determination. Any alleged deficiency in failing to include more specific information
was thus harmless. (In re E.W., supra, 170 Cal.App.4th at pp. 402-403.)6

6 Prior to oral argument, counsel for DSS informed us that "[u]pon further
investigation, the Nez Perce tribe's tribal agent requested to review the notices and we
are honoring that request. This request, in our opinion, necessitates a limited reversal
for re-noticing purposes." A limited reversal is unnecessary. The juvenile court file,
of which we take judicial notice, indicates that on October 29, 2015, the Nez Perce
tribe sent a response to the second notice stating that "[i]n order to be enrolled in the
Nez Perce tribe an individual must have at least ¼ Nez Perce blood. Therefore, based
on the information provided, the above-named minor does not appear to be eligible for
enrollment in the Nez Perce Tribe. Therefore the Nez Perce Tribe will not be
intervening in this matter."

13
 The orders terminating father's parental rights and denying
grandmother's section 388 petition are affirmed.
NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P. J.

YEGAN, J.

14
 Linda D. Hurst, Judge

Superior Court County of San Luis Obispo

______________________________

Maryann M. Goode, under appointment by the Court of Appeal, for
Defendant and Appellant T.B. Jr.
Maureen L. Keaney, under appointment by the Court of Appeal, for
Defendant and Appellant L.S.
Rita L. Neal, County Counsel, Leslie H. Kraut, Deputy County Counsel,
for Plaintiff and Respondent.