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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 adoption. (Welf. & Inst. Code, § 366.26.)1

 Appellant 

claims the trial court failed to comply with the notice requirements 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 placed 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 weapon 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 substance abuse problem and prior arrests for 

domestic battery, false imprisonment with violence, and assault with a deadly weapon. 

Family services were provided from 2009 to 2011 without success. Mother had an 

extensive child welfare history, suffered from substance abuse, and was diagnosed with 

Schizoaffective Disorder and 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 Stress Disorder. T. suffered nightmares and angry outbursts 

that included hitting, hair pulling, and cursing. The mother and foster mother reported 

that T.'s behaviors mimicked the violence appellant 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)), and cruelty (§ 300, subd. (i)). 

At the December 19, 2012 combined jurisdiction/disposition hearing, mother waived 

services. Appellant submitted on reports that appellant's phone contacts aggravated T.'s 

behavioral and emotional problems. Appellant had already been sentenced in the 

domestic violence case and a criminal protective order prohibited appellant from 

contacting the mother or T. 

 The trial court denied reunification services and set the matter for a section 

366.26 permanent placement hearing. Appellant filed a notice of intent to file a writ 

petition but the matter was dismissed as abandoned. (B245903.) 

 At the June 14, 2013 section 366.26 hearing, the trial court denied a 388 

supplemental petition to reinstate services, found T. adoptable, and terminated parental 

rights. The trial court found that DSS complied with the ICWA notice requirements and 

that responses "have been received from Eastern Band of Cherokee, Cherokee Nation, 
3

United Keetoowah Band tribes, and the Bureau of Indian Affairs. These tribes declined 

intervention in this case and denied [T.'s] eligibility for enrollment." 

ICWA 

 Appellant argues that DSS failed to investigate 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 father was of Cherokee heritage and was born in 

Oklahoma. Mother also claimed Indian heritage through her grandmother. Appellant 

denied American Indian ancestry 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 responded that T. is not of Indian descent. 

 Appellant argues that DSS was required 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 harmless 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 determination that the child is or 

is not a member or eligible for membership in the tribe is conclusive.' [Citation.]" 

(Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 865. ) 

 Appellant faults DSS for not questioning the maternal uncle about T.'s 

Indian heritage. But that was done. We granted 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 ICWA ancestry in the family. 

 Appellant claims that DSS had a duty to further investigate but "ICWA 

does not require inquiry based on mere supposition. [Citation.]" (In re K.M. (2009) 172 

Cal.App.4th 115, 119.) Arguments about the adequacy of the ICWA notice are moot 

because the tribes have already determined that T. is not an Indian child or eligible to be a 
4

tribe member. (§ 224.3, subd. (e)(1); see e.g., In re William K. (2008) 161 Cal.App.4th 1, 

12; Alicia B. v. Superior Court, supra, 116 Cal.App.4th at p. 865.) The alleged failure to 

provide the tribes more information is harmless error. (Cont.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 free' 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 children have already caused the children serious 

harm; the rules do not permit them to cause additional unwarranted delay and hardship, 

without any showing whatsoever that the interest protected 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 Counsel, County of San Luis Obispo, Leslie . Kraut, 

Deputy County Counsel, for Res[ondent.