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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Juvenile Cour t Law. 2d Juv. No. B260826 (Consolidated with B262032 & B262711 ) (Super. Ct. No. 14JV

- 00040) (San Luis Obispo County)

SAN LUIS OBISPO COUNTY CHILD PROTECTIVE SERVICES,
Plaintiff and Respondent,

v.

L.S. et al.,
Defendants and Appellants. OR DER MODIFYING OPINION [NO CHANGE IN JUDGMENT]

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 Servi ces" 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Juvenile Court Law. 2d Juv. No. B260826 (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 ord er 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. (gr andmother) appeals the denial of her section 388 petition requesting that T.B. be

1 All statutory references are to the Welfare and Institutions Code.2

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 c ontends 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 Fe bruary10 , 2014 , 3 the San Luis Obispo County Department of Social Services (DSS) filed a section 300 pet ition 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

. F ather was in jail at the time for h is second violation of a restr aining 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 additiona l
time to make a decision." T.B. was pla c ed in a foster home.

B oth parents c ompleted a nd signed a Parental Notification of Indian
Status (ICWA

- 020) . Father indicated he may have Indian ancestry through the
Cherokee and/or Blackfeet tri bes. Although m other had no knowledge of any Indian

ancestr y , the mater nal great

- g randmother
, who was also present at the hearing, stated

2 Grandmot her 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 state d 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.3

that both she and her husban d were "part American Indian." She identified her
husband 's tribal affiliation as Comanche and her own as Nez Perce , but she "[did]n't
ha ve any veri fication of that." She did not know if her husband's Indian heritage came
from his birth state of Texas an d 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 g randfather and gave his name and state of birth

. She added that she had "some genealogy papers" and wou ld "look in earnest for that." N o additional information was produced, but she complete d an ICWA

- 020 form indicating that T.B. may have Comanche and Ne z Perce ancestry.

At the conclusion of the detention hearing, T.B. was ordered d etained
and the matter was set for a combined j urisdiction and disposition hearing. In its report for th at hearing, DSS stated that "[r]elative placements will continue to be

as sessed. 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."

Mot her and father were apparently still living together in violation of the restraining order and that neither of them had v isited 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 t han me rely an alleged father.

At the conclusion of the jurisdiction and disposition hearing, mother was awarded supervised weekly visitation and was orde red to comply with DSS's4

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 o f 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 presume d 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. G randmother 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 of

fered tha t 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 t hree cases of beer in a refrigerator in the garage along with numerous empty beer cans in a recy cling 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 thr ee

- month review hearing. It was also reported that grandmother was shaking and had slurred spee ch on more than one of her interactions

w ith the social worker. DSS also continued to receive reports of alcohol abuse by grandmother, her live

- in boyfriend, and her teen age daughter. Grandm other had requested that T.B. be placed with her and had init i ated 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 concern ed about the grandmother's ability to a ttend 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 g randmother (the prospective adoptive paren ts) had identified themselves as a potential nonrelated extended family member (NRE F M) placement for T.B. Although mother and father5

had not visited T.B. since his detention or participated in services, DSS recommended
that they both be offered services f or 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
Nati on, the Blackfeet Tribe of Montana, and the Nez Perce Tribe of Idaho. The notices included the parents' names, addresses and date s of birth, the names and
dates and places of birth of grandmother, the maternal grandfather, and the maternal great

- grandmoth er and great

- grandfather, and the name and place of death of t he paternal great

- grandmother. The return receipts f rom all six tribes were filed with the

court p rior to the three

- month review hearing. DSS also filed the responses of five of
the tribes ind icating that T.B. was neither a member nor eligible to become a member
of their tribe. Th e 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 s he and her boyfriend had "completed all of the requirements needed to attain legal cust ody of" the child. She also claimed that she and her daughter had overheard the two social workers assigne d 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 $10,000.0 00 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 inacc urate information and because grandmother's "contact and relationsh ip6

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 th at T.B. be placed with the m , but they could not be formally assessed because they had yet to complete the req uirements for such a placement.

Both social workers filed declarations in opposition to grandmother's de facto parent request. One recounted a Fe bruary telephone conversation with grandmother in which grandmother said she did not want to be considered for relative placeme nt but "may be interested in concurrent planning." Grandmother sounded
intoxicated when she made a call to the after

- hours socia l worker six days later. When the social worker confronted grandmother with th is, she denied being intoxicated and

c laimed she was merely crying. Both social workers denied there was a scheme to "sell" T.B., but acknowledged they had referred to grandmot her'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 interes t 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 [grandmothe r] 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 asser tions 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 stated7

that T.B. was transitioning into the home of his prospective a doptive 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 bo yfriend] 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 th orough 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
visi ts with T.B. and to ld the foster parent she planned to "g et 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 d eny placement with grandmother. The social worker t estified 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 relev a nt 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 be en in a ny kind of trouble with the law" except
f or 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
"ta ke[s] care of [her] daughter." The cour t noted that the issue of placement was no t before the court and advised grandmother to confer with father's counsel "about the different options and how you can potentially bring the issue th at you want before the
court."8 At the conclusion of the hearing , the court terminated reunification services for both parents and set the matter for a section 366.26 hearing. T wo day s later , grandmother filed a section 388 petition on form JV

- 180 request ing 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 bi ological 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 soci al 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 ye t to complete t he 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 intera ct with him. DSS also offered the letter

sen t 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 sh e had turned in all the required paperwork for RFA the previous September. She also claimed that she rare ly 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 t he family drinks every night." It was also established in an of fer of proof that grandmother had been given preferential placement consideration after father was declared the presumed9

father, and that grandmother's background check (which included a DUI conviction and recent reports of alcohol abuse and potential dome stic 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 ch ange 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 h ear them, it n oted 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 grandmoth er 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 Februa ry 2015 section 366.26 hearing. Moreover, he only appeared to state through his attorney that he wanted gr andmother 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
Gran d mother contends the court abused its discretion in denying her
section 388 m odification petition

. We conclude otherwise.

As relevant here, section 388 provides that any p erson with an interest in a dependency proceeding may petition for a hearing to change or set aside an order on
the ground of c hanged circumstances. ( Id. at su bd. (a)(1).) The petitioning party bears the burden of proving by a preponderance of the evidence that circumstances have10

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 1 080, 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 t hat 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 pr o of under section 388.

Moreover, grandmother's arguments regarding her rights to preferential placement con sideration under section 361.3 are unavailing. That statute provides that
relat ives of a child removed from the physical custody of his or her pare nts pursuant to

s ection 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, in cluding 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 b est interest of the child. [Citat ion.] " ( In re Stephanie M. (1994) 7 Cal.4th 295, 321.)11 Here, the record demonstrates that DSS consider ed grandmother as a possible relative placement for T.B., but were unable to approve that placement due to
her prior D UI 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 warrant ed

. O ver the course of six pages of the reporter's transcript, the court complied with its duty to
address t he r easons wh y grandmother's relative placement request had been denied

. A lthough the court took issue with certain aspects of DSS's handling of the case, it ultimately found th e agency h ad complied with section 361.3 in denying grandmother's relative placement reques t, 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.

Gr andmother 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 discus sion 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 fail ure to fully comply with the rele vant 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.12 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 promot es 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 e nough 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 ad dresses of the child's parents, grandparents, great grandparents, and other i dentifying 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 tri be 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
standar d. ( In re E.W. (2009) 170 Cal.App.4th 396, 402

- 403.) Notice is sufficient if13

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 inclu ded more specific information regarding the names, address es , 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 respon d differently. "' [T]echnica l 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 [B ureau 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 determi ne the child's eligibility for membership . [Citation s .] " ( 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. An y 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 Perc e 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

- no ticing 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 Ne z Perce tribe an individual must have at least 1⁄4 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 interven ing in this matter."14 The orders terminating father's parental rights and denying grandmother's section 388 petition are affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We c oncur:

GILBERT, P. J.

YEGAN, J.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.