Filed 2/26/14 In re T.M. CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

In re T.M., a Person Coming Under the Juvenile Court Law. 2d Juv. No. B249504 (Super. Ct. No. JV 48803) (San Luis Obispo County)
SAN LUIS OBISPO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent,

v. THOMAS M., Appellant.

Thomas M. appeals a June 14, 2013 order terminating his parental rights and freeing his son, T. M., for adoptio n. (Welf. & Inst. Code, § 366.26.) 1 Appellant
claims the trial court failed to comply with the notice requi rements of the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.). We affirm. Procedural History On August 24, 2012 , three-year old T. was plac ed in protective custody due to appellant's domestic violence and his mother's, Julie B., mental illness. Appellant was arrested for assaulting mother with a deadly weap on and inflicting corporal injury. T.

1 Al statutory references are to the Welfare and Institutions Code unless otherwise stated.2 saw appellant hit his mother in the head with a glass object, hold a knife to her throat, and pull her hair. Appellant had a long term substan ce abuse problem and prior arrests for domestic battery, false imprisonm ent with violence, and assau lt with a deadly weapon. Family services were provid ed from 2009 to 2011 without success. Mother had an extensive child welfare history, suffered fro m substance abuse, and was diagnosed with
Schizoaffective Disorder a nd a Personality Disorder Not Otherwise Specified with obsessive compulsive and dependent traits. After T. was placed in protective custody on August 24, 2012, he was
treated for Post Traumatic Stre ss Disorder. T. suffered ni ghtmares and angry outbursts that included hitting, hair pulli ng, and cursing. The mother and foster mother reported that T.'s behaviors mimicked the violence appe llant perpetrated T. would curse, say "I cut you," and engage in hair pulling. San Luis Obispo County Department of Social Services (DSS) filed a second amended petition for failure to protect (§ 300, subd. (b)), severe physical abuse (§ 300, subd. (e)), no provision for support (§ 330, subd. (g)), a nd cruelty (§ 300, subd. (i)). At the December 19, 2012 co mbined jurisdiction/disposition hearing, mother waived services. Appellant submitted on reports that appellant's phon e contacts aggravated T.'s behavioral and emotional problems. Appe llant had already been sentenced in the domestic violence case and a criminal pr otective order prohibited appellant from contacting the mother or T.
The trial court denied reunification se rvices and set the matter for a section 366.26 permanent placement heari ng. Appellant filed a notice of intent to file a writ petition but the matter was dismissed as abandone d. (B245903.) At the June 14, 2013 section 366.26 hearing, the trial court denied a 388 supplemental petition to reinstate services, fo und T. adoptable, and terminated parental rights. The trial court found that DSS co mplied with the ICWA notice requirements and that responses "have been r eceived from Eastern Band of Cherokee, Cherokee Nation,3 United Keetoowah Band tribes, and the Bureau of Indian Affair s. These tribes declined
intervention in this case and denied [T.'s] eligibility fo r enrollment."
ICWA Appellant argues that DSS failed to i nvestigate whether T. was of Indian heritage and give adequate ICWA notice. (See § 224.3, subd. (a); In re Alice M. (2008) 161 Cal.App.4th 1189, 1200-1201.) Before the detention hearing, mother filed an ICWA-020 form alleging that she had unknown Indian ancestry. At the August 29, 2012 detention hearing, mother stated that her fa ther was of Cherokee heritage and was born in
Oklahoma. Mother also claimed Indian he ritage through her grandmother. Appellant
denied American Indian ancest ry but filed an ICWA-020 form stating "I may have Indian ancestry. [¶] Name of tribe(s): unknown." DSS mailed notices to three federally recognized Cherokee tribes and the
Bureau of Indian Affairs. The tribes res ponded that T. is not of Indian descent. Appellant argues that DSS was require d to inquire further and interview extended family members. (See In re A.G. (2012) 204 Cal.App.4th 1390, 1396.) Alleged
deficiencies in an ICWA notice are harm less where the tribes receive notice and determine that the child is not registered or eligible to register as a tribe member. ( In re
E.W. (2009) 170 Cal.App.4th 396, 402-403.) " 'A tribe's determin ation that the child is or is not a member or eligible for membership in th e tribe is conclusive.' [Citation.]" ( Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 865. ) Appellant faults DSS for not questi oning the maternal uncle about T.'s Indian heritage. But that was done. We gran ted DSS's motion to augment the record with an October 30, 2013 ICWA report summarizing the ICWA notices and tribes' responses. The report states that Social Worker Anne Sederberg contacted the maternal uncle who
indicated there is no known IC WA ancestry in the family. Appellant claims that DSS had a dut y to further investigate but "ICWA does not require inquiry based on me re supposition. [Citation.]" ( In re K.M. (2009) 172 Cal.App.4th 115, 119.) Arguments about th e adequacy of the ICWA notice are moot because the tribes have already determined that T. is not an Indian child or eligible to be a4 tribe member. (§ 224.3, subd. (e)(1); see e.g., In re William K. (2008) 161 Cal.App.4th 1, 12; Alicia B. v. Superi or Court, supra, 116 Cal.App.4th at p. 865.) The alleged failure to provide the tribes more info rmation is harmless error. (C ont.Ed.Bar Cal. Juvenile Dependency Practice (2013) § 9.21, pp. 727-728; In re S.B. (2005) 130 Cal.App.4th 1148, 1162.)
Conclusion Appellant is trifling with the courts. ( In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1431.) "ICWA is not a 'get out of jail fre e' card dealt to parents of non-Indian children, allowing them to avoid a termination order by withholding secret knowledge . . . " ( Ibid. ) Stated another way, appellant is precluded from claiming that further ICWA inquiry is required. ( In re I. W. (2009) 180 Cal.App.4th 1517, 1532.)
" 'Parents unable to reunite with their child ren have already caused the children serious harm; the rules do not permit th em to cause additional unwa rranted delay and hardship, without any showing whatsoever that the interest protecte d by the ICWA are implicated in any way.' [Citation.]" ( Ibid .) The judgment is affirmed.
NOT TO BE PUBLISHED.

YEGAN, J. We concur:

GILBERT, P.J.

PERREN, J.5 Linda D. Hurst, Judge
Superior Court County of San Luis Obispo

________________ ______________

Roni Keller, under appointment by the Court of Appeal, for Appellant.

Rita L. Neal, County Co unsel, County of San Luis Obispo, Leslie . Kraut, Deputy County Counsel, for Res[ondent.