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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 Court 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.

ORDER 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 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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 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.
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 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.
3

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 
4

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 
5

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 
6

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 
7

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."
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. 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 
9

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 
10

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.)
11

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.
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 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 
13

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 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 

intervening 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 concur:

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.