Filed 7/18/14 In re K.B. CA5




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

In re K.B. et al., Persons Coming Under the
Juvenile Court Law.


STANISLAUS COUNTY COMMUNITY                                                            F068764
SERVICES AGENCY,
                                                                (Super. Ct. Nos. 516803, 516804, 516805)
         Plaintiff and Respondent,
                   v.
                                                                                   OPINION
DEANNA B.,
         Defendant and Appellant.

                                                   THE COURT*
         APPEAL from orders of the Superior Court of Stanislaus County. Ann Q.
Ameral, Judge.
         Marissa Coffey, under appointment by the Court of Appeal, for Defendant and
Appellant.
         John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County
Counsel, for Plaintiff and Respondent.
                                                        -ooOoo-


*        Before Levy, Acting P.J., Cornell, J., and Kane, J.
       Deanna B. (mother) appeals from the juvenile court’s dispositional orders
terminating its dependency jurisdiction as to her four-year-old daughter K.B., two-year-
old daughter, J.B., and 18-month-old son, J.B., Jr. and placing them with their father
Joseph B. Mother contends the juvenile court erroneously relied on Welfare and
Institutions Code section 361.21 to support its placement order. Mother also contends the
juvenile court erred in terminating its jurisdiction without determining whether the Indian
Child Welfare Act (ICWA; 25 U.S.C.S. § 1901 et seq.) applied. We affirm, concluding
mother forfeited the placement issue and the ICWA does not apply.
                    PROCEDURAL AND FACTUAL SUMMARY
       In September 2013, the Stanislaus County Community Services Agency (agency)
took then four-year-old K.B., two-year-old J.B., and 15-month-old J.B., Jr. into protective
custody after one of mother’s guests caused an explosion and fire in her apartment while
attempting to make hash oil. The agency placed the children in foster care.
       Mother identified Joseph B. as the children’s father, which he acknowledged. He
said he did not live with mother; however, he had the children at his home for extended
visits numerous times and provided financial support. He was aware mother drank
alcohol and suspected she used drugs. He said he drank beer on weekends and hard
liquor at celebrations. He submitted a “Parental Notification of Indian Status” (ICWA-
020) indicating that he may have Indian ancestry but did not identify a tribe.
       According to the agency’s records, Joseph and mother were involved in a
domestic violence incident in February 2012. Allegedly, Joseph slapped mother,
knocking her to the floor, choked her, dragged her to the front door and told her to leave.
She picked up K.B. and Joseph locked them out of the house. The agency deemed the


1     All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.


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allegation inconclusive because mother could not be found and Joseph denied any
physical violence.
       In late September 2013, the agency filed a dependency petition as to K.B., J.B.,
and J.B., Jr. alleging mother’s conduct brought the children within the juvenile court’s
jurisdiction. The agency also mailed notice of the dependency proceedings to the
Department of the Interior and the Bureau of Indian Affairs as required under the ICWA.
       The juvenile court ordered the children detained and set the matter for a
jurisdictional/dispositional hearing (combined hearing). The agency referred Joseph and
mother for parenting classes, a substance abuse assessment and services for domestic
violence.
       Joseph completed a substance abuse assessment and told the specialist he drank
beer on the weekends and hard alcohol on special occasions. However, he tested positive
for marijuana and alcohol. He admitted drinking alcohol that morning prior to his
appointment. The specialist referred him for inpatient substance abuse treatment.
       In October 2013, the agency filed a first amended petition adding allegations that
Joseph was negligent in failing to remove the children from mother’s custody despite his
suspicion that she was using drugs, that he tested positive for marijuana after denying its
use, and was abusive to mother during the February 2012 incident.
       The agency recommended the juvenile court adjudge the children its dependents,
remove them from parental custody, and provide mother and Joseph reunification
services.
       On October 28, 2013, the juvenile court convened the combined hearing and set it
for a contested hearing on November 25, 2013. The juvenile court also ordered the
agency to send out new ICWA notices.
       On October 30, 2013, the agency mailed notice of the proceedings to the
Department of the Interior and the Bureau of Indian Affairs.

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       On November 25, 2013, the juvenile court convened the contested combined
hearing. The juvenile court found that it was unknown whether the ICWA applied.
Mother’s attorney made an offer of proof accepted by the parties and the juvenile court
that mother objected to the juvenile court’s assumption of dependency jurisdiction and
believed the children’s interests would be best served by returning them to her custody.
However, if they could not be returned to her custody, she preferred that the agency place
them with Joseph rather than in foster care. She believed that was “her best choice as a
mother.” Joseph’s attorney also made an offer of proof that he objected to the juvenile
court’s assumption of jurisdiction and wanted to inform the court that he completed
substance abuse treatment and was attending Alcoholics/Narcotics Anonymous meetings.
       The juvenile court found that notice of the hearing was properly given and that it
was unknown if the ICWA applied. The court found the allegations in the first amended
petition true and adjudged the children its dependents under section 300, subdivision (b).
The court also found Joseph had proven he was able to safely care for the children.
Consequently, the court awarded him joint legal and sole physical custody of the children
and terminated its jurisdiction over them.
       This appeal ensued.
                                      DISCUSSION
I.     Mother Forfeited her Right to Challenge the Juvenile Court’s Order Placing
       the Children with Joseph. Nevertheless, We Would Affirm.
       Mother contends the juvenile court misapplied section 361.22 in granting Joseph
custody of the children. Section 361.2 governs placement of a child with a noncustodial
parent. Subdivision (a) of section 361.2 provides:

2      The juvenile court did not cite section 361.2 as authority for placing the children
with Joseph. However, section 361.2 authorizes placement with the noncustodial parent
and the parties presume by their arguments that the juvenile court relied on that statute.


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              “When a court orders removal of a child pursuant to Section 361, the
       court shall first determine whether there is a parent of the child, with whom
       the child was not residing at the time that the events or conditions arose that
       brought the child within the provisions of Section 300, who desires to
       assume custody of the child. If that parent requests custody, the court shall
       place the child with the parent unless it finds that placement with that
       parent would be detrimental to the safety, protection, or physical or
       emotional well-being of the child.”
       If the juvenile court places the child with a noncustodial parent, it may grant the
parent legal and physical custody of the child and terminate its jurisdiction over the child,
or maintain its jurisdiction and order reunification services for either or both parents.
(§ 361.2, subd. (b).)
       We conclude mother forfeited her right to challenge the juvenile court’s placement
decision by failing to challenge it at the combined hearing. As a general rule, a party
who does not raise an argument below forfeits the argument on appeal. (In re T.G.
(2013) 215 Cal.App.4th 1, 14.) In this case, mother did not object to the children’s
placement with Joseph. On the contrary, she agreed that it was the best solution for them.
Consequently, mother not only forfeited the right to challenge the children’s placement
but actually consented to it. Having done so, she cannot now claim error.
       However, even if mother had preserved the placement issue for our review, we
would find no error. In this case, the event that brought the children within the provisions
of section 300 was the explosion and fire which occurred while they were living with
mother. Since the children were not living with Joseph at the time of the fire and
explosion and since he requested custody, the juvenile court had no choice under section
361.2, subdivision (a) but to place them with Joseph unless it found by clear and
convincing evidence doing so would be detrimental to them. In this case, the juvenile
court determined that Joseph had sufficiently resolved any safety concerns and ordered
the children placed in his custody.


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       Mother contends the juvenile court erred in applying section 361.2, subdivision (a)
to Joseph because Joseph was an “offending” parent and the statute does not apply to an
“offending” parent. Joseph was “offending,” mother claims, by virtue of the allegations
found true as to him in the petition and his failure to show proof he completed or
participated in the services offered to him.
       The word “offending” is not used in the text of section 361.2. This term first
appeared in the case law in In re Marquis D. (1995) 38 Cal.App.4th 1813 where, in
discussing section 361.2, the court used the term “offending” to refer to the custodial
parent and “nonoffending” to refer to the noncustodial parent. (In re Marquis D., supra,
at p. 1823.) In subsequent decisions, the term “nonoffending noncustodial parent”
became synonymous with the parent “with whom the child was not residing at the time
that the events or conditions arose that brought the child within the provisions of Section
300.” (In re John M. (2013) 217 Cal.App.4th 410, 421-422 (John M.).)
       A split of authority exists among the appellate courts as to whether a parent must
be both “noncustodial” and “nonoffending” to be considered for placement under section
361.2. (See In re A.A. (2012) 203 Cal.App.4th 597, 608; In re Nickolas T. (2013) 217
Cal.App.4th 1492, 1504-1505; John M., supra, 217 Cal.App.4th at pp. 423-424.) Mother
urges this court to adopt the view that section 361.2 only applies to a noncustodial
“nonoffending” parent. We decline to do so.
       Even if mother had preserved the placement issue, the plain language of section
361.2, subdivision (a) is sufficiently clear as to Joseph to bring him within its provisions.
We reiterate: he is a parent with whom the children were not living when the event (fire
and explosion) arose that brought the children within the provisions of section 300 and he
requested custody of them.
       Finally, mother contends the juvenile court erred in not offering her reunification
services. Had the juvenile court retained its jurisdiction it could have provided mother

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reunification services under section 361.2, subdivision (b). However, it chose to place
the children with Joseph and terminate its jurisdiction which we would uphold.
Consequently, we need not address whether the juvenile court abused its discretion in not
ordering reunification services for mother.
II.    The Juvenile Court did not Err in Terminating its Jurisdiction Without
       Determining Whether the ICWA Applies Because it Does Not.
       Mother contends the juvenile court erred in terminating jurisdiction without first
determining whether the ICWA applied. We conclude the ICWA did not apply because
the children were being placed with Joseph rather than in foster care.
       The purpose of the ICWA is to preserve and protect Indian children, families and
tribes in the context of child dependency actions under state law. (25 U.S.C. § 1901 et
seq.) The ICWA sets forth various procedural safeguards, including a notice
requirement, to effectuate its goal. The ICWA requires: “[i]n any involuntary
proceeding in a State court, where the court knows or has reason to know that an Indian
child is involved, the party seeking the foster care placement of, or termination of
parental rights to, an Indian child shall notify the parent or Indian custodian and the
Indian child’s tribe … of the pending proceedings and of their right of intervention.” (25
U.S.C. § 1912(a).) “One of the primary purposes of giving notice to the tribe is to enable
it to determine whether the child involved in the proceedings is an Indian child.” (In re
H.A. (2002) 103 Cal.App.4th 1206, 1210.)
       Mother does not contend the agency failed to comply with the ICWA’s notice
requirements. Rather, she contends the juvenile court erred in not waiting for the
responses and determining whether the ICWA applied. We conclude the ICWA did not
apply irrespective of the responses the agency’s notices might elicit.
       By its own terms, the ICWA notice is only required where the agency seeks foster
care or termination of parental rights, “it does not require notice anytime a child of

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possible or actual Native American descent is involved in a dependency proceeding.” (In
re Alexis H. (2005) 132 Cal.App.4th 11, 14.)
      In this case, the agency sought neither foster care nor adoption for the children.
Rather, the agency sought placement of the children with their noncustodial parent.
Thus, the ICWA did not apply and the juvenile court did not err in terminating its
jurisdiction without making an ICWA determination.
      We find no error and affirm.
                                     DISPOSITION
      The juvenile court’s dispositional orders are affirmed.




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