Filed 7/2/21 J.M . v. Superior Court CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or

or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

J.M

. , et al.,

P etitioner

,

v.

THE SUPERIOR COURT OF

MARIN COUNTY

,

Respondent;

MARIN COUNTY HEALTH AND

HUMAN SERVICES

,

Real Part y in Interest

. A1 6 2235

( Marin County

Super. Ct. No. J V26977A )

In th ese juvenile writ proceeding s

, J.M. (father) and H.P . (mother) s eek

extraordinary relief from the juvenile court order setting a permanency

planning hearing for their son

, E.M

. , pursuant to section 366.26 of the

Welfare and Institutions Code. 1 T he parents contend there was insufficient

evidence to support the juvenile court ’ s finding s that the Marin County

Department of Children and Family Services (Department) provided

reasonable services and made active efforts to prevent the breakup of their

Indian family as required by the Indian Child Welfare Act of 1978 ( 25 U.S.C.

§ 1901 et seq. ; ICWA

)

. Seeing no error, we d eny the petition s

.

1 All statutory references are to the Welfare and Institutions Code

unless otherwise specified.2 I. BACKGROUND

A. Investigation and Detention

E.M. first came to the attention of the Department at the age of two

,

after a report alleg ing the minor was seen by hotel staff on June 8

,

2020 wandering alone in a parking lot and near high traffic areas of Corte

Madera. Father later admitted the minor left the hotel room while he was

sleeping. O n June 12, E.M. was again found wandering around the hotel

parkin g lot in Corte Madera , this time late at night , alone, naked, and in

distress. Mother was discovered passed out in a hotel room containing

heroin, cocaine, needles

, and other drug paraphernalia within reach of the

minor. Father was at work but returned to take custody of E.M. after m other

was arrested on child endangerment and possession charges

.

Father , an e lectrician at a local automobile manufacturer, told the

social worker he was unaware mother was using drugs and had not seen any

dru g paraphernalia around the hotel room. Father explained he had met

mother about four years ago while working in Alaska. After he relocated to

Hawaii for a job, mother joined him. Several months later, father discovered

that mother was using methamphetam ine. Mother participated in both

inpatient and outpatient drug treatment for six months and graduated from

the program about three years ago

. F ather believed she had remained sober

since then . E.M. was born approximately a year after mother completed

treatment.

The family moved to Oakland in early 2020 after father obtained

employment with a nonprofit organization. Father lost his job when the

nonprofit closed in March 2020 due to the COV ID

- 19 pandemic, and he was

unemployed until May 2020 when he was hired into his current position

working the night shift from 10 :00 p

. m

. to 6 :00 a

. m. The family’s finances3

deteriorated during this stressful period , and they found housing through

Project R oomkey, a state program that supports people with housing

instability caused by the pandemic

. Father denied an y history or current use

of drugs and stated he would do anything to keep E.M. safe. 2

Mother spoke with the social worker by telephone a nd stated that

father had asked her to leave the family home and that she understood she

should not care for E.M. alone. Mother report ed she had been sober for the

“ ‘past couple of years

. ’ ” The social worker offered to help her get into a

su bstance abuse treatment program. On June 15, 2020

, the social worker

spoke with father and a family friend who had agreed to watch E.M. while

father was working. On June 19, father confirmed that mother was living

outside the home and his friend was watc hing E.M. at night.

Both parents indicated they would sign a written safety plan prepared

by the social worker to ensure that E.M. was always supervised by a safe and

sober caregiver. Although the social worker e

- mailed the plan to the parents

on June 1 2 as agreed , they did not respond to the e

- mail or return a signed

agreement

. M other subsequently failed to respond to the social worker’s

numerous phone calls . F ather agreed to participate in a second in

- person

safety planning meeting scheduled for June 23

, but never returned the social

worker’s calls or voicemails when she called to confirm

.

T he Department received another report on June 25 , 2020 that E.M.

was found on mul tiple occasions wandering unsupervised in a different hotel

parking lot in Newark. A hotel guest had observed E.M. locked alone in a

parked car for approximately 30 minutes , and hotel staff had stopped the

minor from running into a busy intersection . Aft er law enforcement was

2 As described below, portions of father’s account are contradicted by

other reports later obtained by the Department.4

called, f ather stated he was sleeping during these incidents and thought E.M.

was sleeping with him. Father checked out of the hotel soon after speaking

with the police. From June 25 to June 29, father refused to meet with the

social worker or produce the minor, both parents failed to respond to the

social worker’s repeated phone calls and texts , and the whereabouts of the

family were unknown. The social worker attempted to contact the family

friend who had been helping care for E.M., but the number had been

disconnected.

On June 26, 2020, t he Department spoke with the maternal

grandmother and learned that mother had a long history of substance abuse.

M other’s t wo old e st children came to the attention of child welfare and tribal

authorities in Alaska as toddlers due to mother’s substance abuse and neglect

and were placed in the care of the maternal grandmother

. Mother’s third

child was also not in mother’s care due to substance abuse and neglect and

resided with his paternal grandparents.

According to the maternal grandmother, E.M. had been detained at

birth by Hawaii child welfare services after mother tested positive for a

controlled sub stance during delivery

. The minor was in foster care for

several months before mother entered a family residential substance abuse

treatment center in December 2017. The maternal grandmother stated that

father also ha d a history of substance abuse and de alt drugs in both Hawaii

and Alaska. A women’s shelter in Hawaii eventually flew mother and E.M. to

Alaska to separate them from father, but he found them and the y all

re located to California together. Mother reportedly relapsed in August 2019.

The maternal grandmother expressed interest in placement of E.M. and told

the social worker to contact the Orutsara r miut Native Counsel (ONC) so that

the tribe could coordinate the minor’s move to Alaska if he was detained

.5

T he Department contacted Mari e Dorris, the social services director for

the ONC

, on that same day to report E.M.’s possible detention. Ms. Dorris

stated that mother was an enrolled citizen of the ONC and that the minor,

while not registered, was eligible for membership. T his informa tion was

confirmed by the maternal grandparents , t he maternal grandfather being an

ONC council member

. On June 29, the Department spoke with Ms. Dorris

and another ONC representative, who agreed with E.M.’s detention and

participation in the court process. Although the tribe intended to take over

jurisdiction of the case, they could not immediately travel from Alaska to

transport the minor due to the COVID

- 19 pandemic. In the meantime, the

social worker offered to seek assistance from the Federated Indians of Graton

Rancheria for help in locating an ICWA

- compliant home as Marin County is

in Graton Rancheri a’s ancestral territory. On that same day , the social

worker provided father with a list of Native American services in the area,

including Tribal TANF of Sonoma and Marin and Sonoma County Indian

Health Services. A similar letter listing a n assortment o f Native American

resources was provided to mother several days later.

E.M. was finally located on June 29, 2020, after extensive efforts by the

social worker. Given the parents’ evasive behaviors and lack of

responsiveness with the Department

, a s well as the ongoing concern that the

minor was at imminent risk of serious physical harm while in their care

,

E.M. was placed into protective custody

. On July 1, the Department filed a

dependency petition, alleging that E.M. was a minor described by

sub divisions (b) (1) and (j) of section 300. The social worker facilitated a

virtual visit between E.M. and his parents that same da y

.

The minor was formally detained by the juvenile court on July 7, 2020.

At the detention hearing, father was elevated to presumed father and the6

court ordered services for the parents, including drug testing, substance

abuse treatment, and parenting education

. Ms. Dorris from the ONC

addressed the court regarding efforts to identify a relative placement , and the

juvenile co urt found there was reason to know E.M. was an Indian child.

Based on its review of the record, the juvenile court found that the

Department had made active efforts to provide remedial services and

rehabilitative programs designed to prevent the breakup o f the Indian family

,

but that those efforts were unsuccessful

.

B

. Jurisdiction and Disposition

In advance of the combined jurisdictional and dispositional hearing, the

Department filed reports inform ing t he court that E.M. was residing in an

ICWA

- compliant foster home. Mother had reportedly called the tribal

enrollment office to enroll E.M. as a me mber of the tribe and was awaiting a

response

. T he Department was in frequent communication with Ms. Dorris

from the ONC. It was exploring placement with an aunt in Alaska, which the

ONC approved. In addition, the Department was attempting to facilitate

phone/video communication between E.M. and his maternal grandmother,

aunts, and half siblings in Alaska with the help of the foster family and the

ONC.

The Department had also confirmed with child welfare services in

Hawaii that E.M. was taken into protective custody due to concerns

regarding mother’s long history of addiction and her positive test for

methamphetamine when the minor was born. Family reunification services

had been provided for both parents, including parenting education, drug

testin g, and substance abuse assessment and treatment. Mother entered and

completed treatment, E.M. was returned in January 2018, and the case was

closed in October 2018 after a period of family maintenance services. As for7

mother’s three older children, there were seven referrals to child welfare

services in Alaska dating back to 2010

, all related to alleged neglect due to

substance abuse. Allegations included neglect, mother’s abuse of OxyContin

and heroin, repeated public intoxication, and domestic violence

.

F ather reportedly had a criminal history in California dating back to

1986, including approximately 12 convictions from 9 separate counties.

F ather ’s most recent conviction was in 2012 for felony possession of a

controlled substance. Criminal histories were not obtained from other states

for either parent.

After numerous failed attempts to contact the parents by phone, text

message , and e

- mail, the social worker spoke with them on July 27, 2020 via

video chat. Mother indicated she had been sober since the day of her arrest

and was using methadone to help with withdrawal. She was open to entering

residential treatment if recommended by the Department. Father

emphasized that they would do anything they needed to do to get the minor

back. The social worker noted that the parents’ lack of consistent

communication with the Department made it difficult to fully assess the

family’s needs but that it would continue to make active efforts to refer

mother to “services that are culturally re levant, taking into account her

Native American heritage.” Indeed, although mother could have be en

bypassed for services given her long history of drug use and resistance to

prior treatment, the Department recommended that services be provided to

both par ents in an attempt to preserve the Indian family. This was also the

ONC’s preference.

The Department, after input from both parents and the tribe,

recommended a case plan for mother establishing goals of building a support

network, staying free of ille gal drugs, and showing her ability to live free of8

drug dependency. The case plan called for Mother to submit to weekly drug

testing

, participate in weekly visitation with E.M., and complet e a residential

drug treatment program and any recommended follow

- up care

. The

D epartment, in turn, was charged with assisting mother in accessing a drug

treatment program that was culturally relevant to her Native American

heritage and otherwise supportin g her in her service objectives. As for

father, the Department recommended a case plan with goals of consistently

and appropriately parenting E.M. and building a support system to help

ensure the minor’s safety at all times. Father was required to partic ipate in

virtual parenting classes , visit weekly with the minor, and drug test weekly.

The Department additionally filed an expert declaration from Percy

Tejada, which was provided by stipulation of the parties in lieu of oral

testimony. Mr. Tejada wa s unable to reach the parents but did speak with

Ms. Dorris at the ONC and several maternal relatives. Having review ed the

case, he opined that nothing in the removal, which was for E.M.’s protection,

transgressed “traditional and cultural community stand ards.” He further

opined that no other services could have been provided to prevent removal

and that the Department was providing continued active efforts as required

by the ICWA. Finally, he concluded that return of the minor to his parents

would cause the child to suffer serious emotional and/or physical damage.

The jurisdictional and dispositional hearing commenced on August 4,

2020. The juvenile court granted the ONC’s formal request to intervene. The

m a tter was then continued to August 18 to give the Department more time to

receive relevant documents from Alaska. A first amended petition was filed

on August 18, 2020, which clarified the allegation under subdivision (j) of

section 300 to state that mother’s two older children had been voluntarily

placed with the maternal grandmother in 2012 after child welfare services in9

Alaska had substantiated allegations of substance abuse and domestic

violence against mother in 2010 and 2012

.

At the continued hearing on August 18, 2020, Ms. Dorris appeared and

stated that the ONC agreed with the Department’s recommendations and

court findings. B oth parents submitted on the amended petition and the

juvenile court sustained the allegations, finding E.M. to be a minor described

by sections (b) and (j) of section 300. The juvenile court found that the

Department had provided affirmative, active, tho rough, and timely efforts to

prevent the breakup of the Indian family, but that the efforts were

unsuccessful. It also found by clear and convincing evidence that continued

custody of E.M. by the parents was likely to cause serious emotional or

physical d amage to the child.

E.M. was adjudged a juvenile court dependent and formally removed

from the custody of both parents. 3 Although the juvenile court found by clear

and convincing evidence that mother was a person described by

subdivision (b)(13) of se ction 361.5, it ordered reunification services for both

parents as recommended by the Department, concluding that reunification

would be in the best interests of the child. A court appointed special advocate

(CASA) was appointed for E.M. The parents were advised that, given E.M.’s

young age, if they failed to participate regularly and make substantive

progress in court

- ordered treatment, services might be terminated at th e six

3 Both parents ultimately submitted to di sposition. Although father

had objected to the drug testing order at the August 4 hearing, the juvenile

court expressed its tentative view that there was sufficient information in the

reports to justify drug testing for father. The social worker reported she had

offered t o refer father to testing closer to his work

, but he had stated he

would come to San Rafael. She stated she would be happy to revisit the issue

with him. At the continued hearing, father indicated he would submit and

try to find drug te sting closer to work.10

month mark. The court admonished both parents that if they wanted to

make prog ress they needed to respond to calls, make appointments, and “not

make everybody feel you are hiding something.” No appeal was taken by

either parent

.

C

. Contested Six

- month Review

The Department filed a six

- month review report in February 2021,

recommending that reunification services be terminated for both parents.

Although the parents visited consistently with E.M. and the visits generally

went well, neither parent had made progress on their reunification plan. The

Department had been in ongo ing contact with Ms. Dorris, the tribal

representative, throughout the reporting perio d

. The tribe had approved

placement with a maternal aunt in Alaska and a permanent plan of tribal

customary adoption or legal guardianship should reunification efforts f ail.

Of great concern was the parents’ lack of progress with their case plans

and failure to respond to the Department’s outreach . The social worker only

met with mother and father two times over the six

- month period, on

August 26

, and September 29 , 2020

. The parents also attended the first

virtual child and family team (CFT) meeting on October 12

, but missed the

remaining four CFT meetings

. The social worker spoke with father about his

case plan progress on October 30. Despite n umerous other attempts by the

social worker to reach the parents by phone or text message, the parents

were noncommunicative. When the social worker manage d to reach father on

two occasions in January 2021, he put her off and then did not follow through

w ith the planned contact. The maternal grandmother and aunts also

reported having difficulty reaching the parents, and Ms. Dorris, the tribal

representative, made several attempts to contact mother without success.

While father did not return the social worker’s calls and messages, he ke pt11

consistent contact with Department visitation staff regarding his visitation

with E.M.

The Department provided mother with a hard copy of her case plan on

August 26, 2020. On September 16, the social worker hand delivered a letter

to mother which described the case plan requirements and provid ed referrals

to three treatment programs appropriate for clients with Native American

Heritage. Copies of the letter were sent to the tribe and to mot her’s attorney.

When mother expressed interest in an Oakland recovery program, the social

worker obtained a release to speak with them. The social worker learned

that mother’s assessment was old

, and she would have to complete a new

assessment with the p rogram in order to be admitted and conveyed this

information to mother. At the September 29 , 2020 meeting, the social worker

explained to mother the steps she would need to take to enter the program,

including transferring her Medi

- Cal to Alameda County, and mother said she

would do so. When mother subsequently reported difficulty transferring her

Medi

- Cal, the social worker contacted a Marin County eligibility worker,

provided mother’s Oakland address, requested the Medi

- Cal transfer, and

told mother to follow up, which she agreed to do. A t the October 12 , 2020

CFT meeting, mother stated she was not yet signed up for treatment. The

social worker encouraged mother to contact the Alameda County Medi

- Cal

office and agreed to follow up with treatment progra ms on mother’s behalf.

After the ir meeting, mother did not respond to the social worker’s phone

calls, voicemails, or text messages

. 4

4 At the contested six

- month hearing on March 9, 2021, mother testified

that she was prepared to enter drug treatment in a program with an

available bed but needed to undergo a COVID

- 19 test and a TB (tuberculosis)

test prior to he r admission.12

As for drug testing, mother reported she was testing at her methadone

clinic and did not want to drug test at two separate locations. Mother agreed

to sign a release of information from her clinic but could not recall the clinic’s

name. The social worker attempted multiple times to obtain the name of the

methadone clinic from mother

, to no avail. By the September 29 , 2020

meeting, mother still could not provide the name and admitted she had

ceased treatment there the previous week. The social worker the n explained

to mother how to drug test through Quest Diagnostics and ensured that

mother had the appropriate paperwork. Although the Department requested

that mother drug test on multiple days from October 2020 through January

2021, it did not receive the results of any drug test

.

Father was also provided with a copy of his case plan . A letter hand

delivered on September 16, 2020 provided him with information on parenting

classes and explained the process for drug testing. The Department also

discussed the case plan with father at meetings on September 29 and

October 12. The Department sent text messages to f ather requesting that he

drug test on 16 different occasions during the reporting period. He tested

only seven times, an d only twice on the actual day requested by the

Department. Three of father’s drug tests were negative for all substances

,

and four were negative for alcohol but did not provide results for other

substances. At the contested review hearing, the social wo rker testified that

when father stated it was difficult for him to test on days he had visits with

E.M., she no longer requested testing on visit days. She also set up the

testing through Quest Diagnostics to give father more flexibility to test at

differ ent locations

.

The Department referred father to virtual parenting classes on

multiple occasions. Despite several calls, voicemails, and text messages, the13

Department received no word that father ever attended the classes. At the

contested hearing, the social worker testified that father never expressed

concern about the timing of the parenting class or indicated he could not

attend , although she explained that she could refer him to something else

.

Father identified his brother and sister

- in

- law as members of his support

network. At father’s request, the Department invited them and a Korean

translator to CFT meetings in November, December, and January, but

neither father n or his famil y members attended.

At the conclusion of the contested hearing, mother’s attorney argued

that the Department had undertaken only passive efforts to help the parents

and requested that reunification services be continued. Father’s counsel

made similar arguments and also claimed that father had substantially

c omplied with services. Minor’s counsel argued in favor of the Department’s

recommendation. A newly appointed tribal representative , Ms. Peters

, made

a s t atement

. After mention ing some additional services mother could

participate in, she suggested that t he parents be given additional

reunification time

. The juvenile court found that the Department had

provided reasonable services and active efforts, but that the parents had

failed to address the issues that led to E.M.’s removal. The court also found

th at it was unlikely the minor would be returned home in the next six

months. The court therefore adopted the proposed orders terminating

reunification services and setting the matter for a hearing pursuant to

section 366.26 so that a permanent out

- of

- home plan could be developed for

the minor. Th e s e timely petition s followed.14 II. DISCUSSION

A

. D ependency Framework

When a dependent child is removed from parent al custody, “ the

juvenile court ordinarily must order child welfare services for the minor and

the parent for the purpose of facilitating reunification of the family. (§ 361.5,

subd. (a).) For a child under three years of age at the time of removal, as

[E.M.] was, reunification services are presumptively limited to six months. ”

( Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 843 ( Tonya M. ).) This is

because the “ ‘ “ unique developmental needs of infants and toddlers ” ’

[citation] justifies a greater emphasis on establishing permanency and

stability earlier in the dependency process. ” ( M.V. v. Superior Court (2008)

167 Cal.App.4th 166, 175.)

As our high court has explaine d, for the parent of a child under three at

the time of removal, the statutory scheme for providing reunification services

establishes “ three distinct periods and three corresponding distinct escalating

standards. ” ( Tonya M.

, supra , 42 Cal.4th at p. 845.) In the first period

— a

phase from the jurisdictional hearing to the six

- month review hearing where

services are “ presumed ”

— “ services are afforded essentially as a matter of

righ t

. ” ( Ibid. ) In the second period

— a phase from the six

- month review

hearing t o the 12

- month review hearing where services are “possible”

— “a

heightened showing is required to continue services.” ( Ibid. ) Specifically, a

juvenile court must continue the case to the 12

- month hearing only if it finds

that “ there is a substantial probability that the child . . . may be returned to

his or her parent . . . within six months or that reasonable services have not

been provided

. ” ( § 366.21, subd. (e)(3) .) I n the third period

— a phase from

the 12

- month review hearing to the 1 8

- month review hearing where services

are “ disfavored ”

— services can be continued only under limited circumstances15

and only if the juvenile court is able to make a number of very specific

findings presaging reunification or if it finds that reasonable services have

not been provided

. ( Tonya M. , at p. 845 ; see § 366.21, subd. (g)(1)(A)

– (C) .)

Here, we are concerned with the findings made by the juvenile court at

the March 202 1 six

- month review. I f , at such a hearing, the court finds “ by

clear and convincing evidence that the parent failed to participate regularly

and make substantive progress in a court

- ordered treatment plan, ” the c ourt

has the discretion to schedule a permanency planning hearing for young

minors such as E.M. (§ 366.21, subd. (e)(3).) A s stated above, a juvenile

court must continue a case to the 12

- month review if it finds that “ there is a

substantial probability that the child . . . may be returned to his or her parent

. . . within six months or that reasonable services have not been provided .” (§

366.21, subd. (e)(3 ).) Moreover, when an Indian child is involved, a party

seeking possible termination of parental rights must also “provide evidence to

the court that active efforts have been made to provide remedial services and

rehabilitative programs designed to prevent the breakup of the Indian family

and that these efforts have pr oved unsuccessful.” (§ 361.7, subd. (a).) The

juvenile court ’s reasonable services and active efforts findings must be

supported by clear and convincing evidence. ( Tracy J. v. Superior Court

(2012) 202 Cal.App.4th 1415, 1424; In re Michael G. (1998) 63 Cal.App.4th

700, 712.)

At the six

- month hearing in this case, the juvenile court found by clear

and convincing evidence that reasonable services had been provide d and

concluded that active efforts had been made but found that the parent s failed

to participate regularly and make substantive progress in court

- ordered16

treatment

. 5 The court additionally found that there was n o substantial

probability that E.M. might be returned to parental custody w ithin six

months

. T he court therefore ter minated reunification services and set the

matter for a permanency planning hearing. B oth parents challenge the

juvenile court’s re asonable services and active efforts findings by these

petitions for extraordinary writ

.

B

. Reasonable Reunification Services and Active Efforts

Reunification services, which play a critical role in dependency

proceedings, must be tailored to the particular needs of the family

. ( § 361.5;

In re Alanna A. (2005) 135 Cal.App.4th 555, 563; David B. v. Superior Court

(2004) 123 Cal.App.4th 768, 793.) We evaluate the reasonableness of the

Department’ s reunification efforts according to the circumstances of each

case. ( Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164.) To

support a finding th at reasonable services were offered or provided, “ the

record should show that the supervising agency identified the problems

leading to the loss of custody, offered services designed to remedy those

pr oblems, maintained reasonable contact with the parents during the course

of the service plan, and made reasonable efforts to assist the parents in areas

where compliance proved difficult. ” ( In re Riva M. (1991) 235 Cal.App.3d

403, 414 ( Riva M. ) .) “ The standard is not whether the services provided were

the be st that might be provided in an ideal world, but whether the services

5 Although the juvenile court did no t clearly articulate the clear and

convincing standard when finding that active efforts had been made , we

presume the court correctly applied the law absen t any evidence to the

contrary. (See In re A.C. (2017) 13 Cal.App.5th 661, 673 ( A.C. ) [“ All

intendments and presumptions are made to support a trial court ’ s judgments,

orders, rulings, and other actions where the record is silent, and it is the

appellant ’ s burden on appeal to show those actions are erroneous. ”]

. )17

were reasonable under the circumstances. ” ( In re Misako R. (1991)

2 Cal.App.4th 538, 547.)

We are also guided by the requirements of the ICWA. The ICWA

implements a national policy to protect the best interests of Indian children

and promote the stability and security of Indian tribes and families by

establishing minimum federal standards for the removal of Indian children

from their homes and the placeme nt of these children in foster or adoptive

homes which take account of the unique values of Indian culture. ( In re

Isaiah W. (2016) 1 Cal.5th 1, 7

– 8

, citing 25 U.S.C. § 1902 .) As stated above,

under the ICWA and corresponding California law, “ [a]ny party seeking to

effect a

. . . termination of parental rights[ ] to an Indian child under State

law shall satisfy the court that active efforts have been made to provide

remedial services and rehabilitative pr ograms designed to prevent the

breakup of the Indian family and that these efforts have proved

unsuccessful. ” ( 25 U.S.C. § 1912(d); § 361.7, subd. (a) ; see also In re A.L.

(2015) 243 Cal.App.4th 628, 638; § 366.26. subd. (c)(2)(B)(i) .)

Pursuant to stat e statute

, “ [w] hat constitutes active efforts shall be

assessed on a case

- by

- case basis. The active efforts shall be made in a

manner that takes into account the prevailing social and cultural values,

conditions, and way of life of the Indian child ’ s tribe. Active efforts shall

utilize the available resources of the Indian child ’ s extended family, tribe,

tribal and other Indian social service agencies, and individual Indian

caregiver service providers. ” (§ 361.7, subd. (b).) California courts have

c haracterized active efforts as “ timely and affirmative steps

. . . taken to

accomplish the goal which Congress has set: to avoid the breakup of Indian

families whenever possible by providing services designed to remedy

problems which might lead to severanc e of the parent

- child relationship. ”18

(See Letitia V. v. Superior Court (2008) 81 Cal.App.4th 1009, 1016, citing

cases.)

In addition, s ection 224.1

, as amended effective January 2019

,

incorporate s a new ly adopted federal definition of “active efforts

. ” (§ 224.1,

subd. (f)

, as amended by Stats . 2018, ch. 833, § 3, eff. Jan. 1, 2019; 25 C.F.R.

§ 23.2.) Pursuant to that statute, active efforts mean s “affirmative, active,

thorough, and timely efforts intended primar ily to maintain or reunite an

Indian child with their family. If an agency is involved in an Indian child

custody proceeding, active efforts shall involve assisting the parent, parents,

or Indian custodian through the steps of a case plan and with accessi ng or

developing the resources necessary to satisfy the case plan. To the maximum

extent possible, active efforts shall be provided in a manner consistent with

the prevailing social and cultural conditions and way of life of the Indian

child’s tribe and s hall be conducted in partnership with the Indian child and

the Indian child’s parents, extended family members, Indian custodians, and

tribe. Active efforts shall be tailored to the facts and circumstances of the

case .

. . .” (§ 224.1 , subd. (f).)

Mirroring federal law, s ection 224.1 lists 11 nonexclusive examples of

active efforts that may be provided in a particular case: (1) c onducting a

comprehensive assessment of the circumstances of the Indian child’s family,

with a focus on safe reunification as the most desirable goal; (2) i dentifying

appropriate services and helping the parents overcome barriers, including

actively assisting the parents in obtaining those services; (3) i dentifying,

notifying, and inviting represent atives of the Indian child’s t ribe to

participate in providing support and services to the Indian child’s family and

in family team meetings, permanency planning, and resolution of placement

issues; (4) c onducting or causing to be conducted a diligent sear ch for the19

Indian child’s extended family members, and contacting and consulting with

extended family members to provide family structure and support for the

Indian child and the Indian child’s parents; (5) o ffering and employing all

available and cultural ly appropriate family preservation strategies and

facilitating the use of remedial and rehabilitative services provided by the

child’s t ribe; (6) t aking steps to keep siblings together whenever possible ;

(7) s upporting regular visits with parents or Indian custodians in the most

natural setting possible as well as trial home visits of the Indian child during

any period of removal, consistent with the need to ensure the health, safety,

and welfare of the child; (8) i dentifying community resources including

h ousing, financial assistance

, transportation, mental health and substance

abuse services

, and peer support services

, and actively assisting the Indian

child’s parents or, when appropriate, the child’s family, in utilizing and

accessing those resources; (9) m onitoring progress and participation in

services; (10) c onsidering alternative ways to address the needs of the Indian

child’s parents and, where appropriate, the family, if the optimum services do

not exist or are not available; and (11) p roviding po streunification services

and monitoring. ( See § 224.1

, subd. (f); 25 C.F.R. 23.2

. )

We review the juvenile court’s active efforts and reasonable services

factual findings for substantial evidence. ( C.F. v. Superior Court (2014)

230 Cal.App.4th 227, 239 ( C.F. ) .) “ The issue of sufficiency of the evidence in

dependency cases is governed by the same rules that apply to all appeals. If,

on the entire record, there is substantial evidence to support the findings of

the juvenile court, we uphold those fin dings. [Citation.] We do not pass on

the credibility of witnesses, attempt to resolve conflicts in the evidence or

evaluate the weight of the evidence. Rather, we draw all reasonable

inferences in support of the findings, view the record most favorably to the20

juvenile court ’ s order, and affirm the order even if other evidence supports a

contrary conclusion. ” ( In re Megan S. (2002) 104 Cal.App.4th 247, 250

– 251;

see Kevin R. v. Superior Court ( 2010) 191 Cal.App.4th 676, 688

– 689.)

“ [W]hen presented with a challenge to the sufficiency of the evidence

associated with a finding requiring clear and convincing evidence, [we] must

determine whether the record, viewed as a whole, contains substantial

evidence from which a reasonable trier o f fact could have made the finding of

high probability demanded by this standard of proof. ” ( Conservatorship of

O.B. (2020) 9 Cal.5th 989, 1005.) A petitioner in this court bear s the burden

of establishing that the juvenile court ’ s findings were not adeq uately

supported. ( Megan S.

, at p. 251.)

California precedent has long held that “ the standard s for determining

whethe r active efforts were made are ‘ essentially undifferentiable ’ from those

for assessing whether reasonable services under state law were provided. ”

( C.F.

, supra

, 230 Cal.App.4th at p. 239, citing In re Michael G.

, supra

,

63 Cal.App.4th at p. 714.) Here, however, both parents a ssert that newly

enacted section 224.1, subdivision (f)

, and the underlying federal regulation

on which it is based, impose s an “ active efforts ” obligation that exceeds th e

existing reasonable services standard

. We need not resolve the parents’

contention as we have no difficulty concluding on this record that substantial

evidence supports both the juvenile court’s reasonable services finding and its

finding that active efforts were made to prevent the breakup of this Indian

family

.

C

. Substantial Evide nce Supports the Court’s Findings

We conclude that ample evidence supports the juvenile court’s finding

that reasonable services were offered or provided to both mother and father

in this case. As stated above, to support a reasonable services finding “ the21

record should show that the supervising agency identif ied the problems

leading to the loss of custody, offered services designed to remedy those

pr oblems, maintained reasonable contact with the parents during the course

of the service plan, and made reasonable efforts to assist the parents in areas

where comp liance proved difficult. ” ( Riva M.

, supra

, 235 Cal.App.3d at

p. 414.) As our recitation of the facts makes clear, the Department conducted

a thorough investigation in this case, responding to and investigating the two

referrals and obtaining family information from the maternal relatives,

Alaska and Hawaii child welfare de partments

, and mother’s tribe. The

information collected revealed mother’s long

- term substance abuse problem

and father’s repeated failure to keep his very young child safe. It also

disclosed the possibility that father was not always truthful and might,

himself, be involved in drug use or sales. Under these circumstances

, the

services offered to the parents were clearly designed to remedy the problems

presented. Furthermore

, the social worker’s dogged efforts to keep in contact

with the parents and ass ist them with plan compliance were more than

reasonable and were hampered only by the parents’ failure to communicate

with the Department.

Although father complains that the social worker failed to refer him to

a parenting class that worked with his schedule, the social worker testified

that she told father she could refer him to a different class if necessary, but

he never indicated there wa s a problem. Father also complains that the

social worker should have lessened the drug testing requirement given his

demanding work schedule

, should have observed more than one visit with the

minor , and should have referred him to conjoint counseling, therapy, and/or a

support group for those living with an addict

. Further observation of the

parents’ visits with E.M. was unnecessary, however, because the visits were22

positive

, other staff adequately reported on the interactions , and the soci al

worker did not want to disrupt the parent

- child dynamic during visits any

more than was necessary

.

As for drug testing, the social worker tried to make this requirement as

flexible as possible, and we disagree with father that he had adequately

estab lished his sobriety with the few tests he did take. The juvenile court

expressly rejected father’s excuses for failing to engage in services. Finally,

the social worker explained that counseling was not initially ordered in the

case because the focus was on ensuring E.M.’s safety. Moreover

, the parent s ’

failure to remain in contact with the Department and engage in the services

already provided hampered the provision of services. As the social worker

explained, she never got to the point where she could reevaluate and

determine whether additional services might be beneficial to the parents

.

For the same reasons

, we reject m other ’s complain t that services were

unreasonable due to the social worker’s failure to observe more visits or refer

the parents to therapy. M other’s other claim

— that the social worker did

little to provide adequate referrals and support with respect to entering

residential treatment

— is belied by the record. W hen mother identified a

treatment program she was interested in, the social worker obtained a

release from mother, spoke to the program to see what steps mother needed

to take for admission, explained those steps to mother, and contacted the

eligibility worker directly when mother reported difficulty transferring her

M edi

- Cal. Yet mother failed to follow through or respond to the social

worker’s phone calls, voicemails

, and text messages

. As the Department

observe d in the proceedings below

, the parents “participated in the elements

of the case that they wanted to part icipate in, and they did not participate in

the elements of the case that they didn’t want to participate in.” The p arents’23

inability to participate in the services offered does not reflect a failure of the

Department to offer or provide reasonable servic es.

T he evidence regarding the Department’s active efforts in this case is

arguably more compelling. As discussed above, the Department conducted a

comprehensive assessment of the circumstances of the Indian child’s family

,

even without the parents’ cooperation , and recommended reunification efforts

for mother despite the fact that her history made her presumptively

ineligible. (§ 224.1 , subd. (f)(1 ).) The Department then identified appropriate

services and attempted to assist the parents in obtaining those services,

again to the extent it was able to do so given the parents’ refusal to

communicate and engage. ( Id. , subd. (f)(2) & (8) .) The Depart ment

immediately contacted the ONC when it learned of mother’s Indian heritage

and involved the tribe throughout the case. ( Id. , subd. (f)(3).) It contacted

and consulted with E.M.’s extended Indian family members to provide

support for the minor and his parents. ( Id. , subd. (f)(4).) It offered culturally

appropriate services. ( Id. , subd. (f)(5).) I t supported regular visitation not

only with the parents but with E.M.’s extended Indian family. ( Id.

,

subd. (f)(7).) Finally, the Department monitored the parents’ progress and

participation in services to the extent permitted by the parents. ( Id.

,

subd. (f)(9).) As the juvenile court observed after going through a similar

analysis, it could not “see where [the social worker] fell below prov iding

active efforts.” We agree.

In characterizing the Department’s efforts as passive rather than

active

, the parents raise many of the same arguments we reject ed above

concerning the provision of reasonable services

. The ir arguments fare no

better through the lens of the ICWA. As one court has described it:

“ ‘ Passive efforts are where a plan is drawn up and the client must develop24

his or her own resources towards bringing it to fruition. Active effort s

. . .

[are] where the state caseworker takes the client through the steps of the

plan rather than requiring that the plan be performed on its own. ” ( In re

K.B. ( 2009) 173 Cal.App.4th 1275, 1286.) It is abundantly clear that the

Department did more in this case than merely draw up a reunification plan

and leave the parents to use their own resources to bring it to fruition. We

see no error in the juvenile court’s reasonable services and active efforts

findings. 6

III. DISPOSITION

The petition s are denied on the mer its

. (See § 366.26, subd s

. ( l )(1)(C),

( l ) ( 4 ) (B).) Because the permanency planning hearing in this matter is set for

July 6 , 20 2 1 , this opinion is final as to this court immediately. (Cal. Rules of

Court , rule 8.490(b)(2)(A).)

6 In parts of her writ petition, mother appears to argue in passing that,

even if sufficient services were provided, the court nevertheless abused its

discretion in ordering a permanency planning hearing in this case. Since

mother failed to support this claim with rea soned argument and citations to

authority, she has forfeited it. ( A.C.

, supra

, 13 Cal.App. 5th at p. 67 2.)

Regardless, we see no abuse of discretion.25 S ANCHEZ

, J.

WE CONCUR:

H UMES

, P. J.

B ANKE

, J.

A 162235

J.M. v. Superior Court