1

Filed 12/16/14 T.G. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.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

T.G., Petitioner,

v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU et al., Real Parties in Interest. A143118
(Contra Costa County Super. Ct. Nos. J13

- 00956, J13

- 00957)

M EMORANDUM O PINION 1

Petitioner seeks further family reunification services and a stay of the scheduled hearing to approve a permanent plan for her children, R.C. and D.B. We deny writ relief. Active efforts were made to reunify petitioner and her children, but she did not meet
those efforts in kind.
B ACKGROUND Petitioner, T.G. (hereinafter mother)
, has had significant interactions with Children and Family Services departments in several counties dating back to 1991

. Her

1 We resolve this case by a memorandum opinion pursuant to California Standards of Judicial Administration, sections 8.1(1) , (3). (Cal.Stds.Jud.Admin., § 8.1(1), (3).)2

olde r children were removed from her care after she failed to reunify with them after

s everal years of servi ces. In August 2013, the Contra Costa D epartment of Children and Family Services (hereinafter County) filed juvenile dependency petition s concerning two of mother’s eight children, two

- year

- old R.C. and 11

- year

- old D.B. The C ounty alleged mother could not adequately supervise the youngsters because of an alcohol abuse problem and
because she had remain ed in a relationship plagued by domestic violence. Specifically,
mother reportedly kick ed D.B. while drunk, was seen by D.B. being “terrible” and getting into fights while drunk, struck her “boyfriend” during a dispute (for which she arrested)
, and expose d her children to her lif estyle of prostitution. The C ounty further alleged
mother had left R.C. and D.B. wi th a family friend for approximately three months without providing direct financial support after the first month

— she told the friend she
was “ ‘ going back to ho’ing ’ ” and “ ‘ going back to the streets
, ’ ” and eventually denied access to public money (inc luding SSI and CalWorks funds) that were meant for the
children. Based on mother’s membership in the Standing Rock Sioux tribe, the C ounty alleged R.C. and D.B. may be member s of, or eligible f or membership in, that tribe.
At the contested jurisdictional hearing on September 13, 2013 , the juve nile court
found the allegations of the dependency petitions, as amended , to be true

. At the contested dispositional hearing, in January 2014, the juvenile court found R.C. and D.B.
to be de pendent children and ordered reunification services for mother. Under the plan for services, mother was required to “enter and successfully complete individual counseling approved by the social worker, and receive a positive evaluation from therapist th at parent understands the factors contributing to [her] dependency [and] has successfully addres sed those issues.” She was also required to participate in counseling “to address trauma, loss and other emotional triggers that
contribute to her alcohol depe ndence.” Finally, she was required to participate in family counseling directed, in part, at enhancing communication skills and managing anger. According to a July 7, 2014 status review report, mother finally began an outpatient substance abuse treatme nt program at Ujima Wes t in February 2014

. Through3

Ujima West, mother was also “receiving individual therapy sessions .” On May 13, however, mother’s case manager at Ujima West reported m other had been out of contact since May 8. Dr. Frank, who had been supervising mother’s participati on in a domestic violence program, also reported mother’s absence. On May 27, he remarked mother is

“ ‘ very damaged ’ ” and “ ‘ needs a ton of work and really should be doing individual counseling. ’ ” In the meantime, f

rom December 2013 to March 2014, mother had had several
visits with R.C. B ut due to concerns about inappropriate behavior and R.C.’s tantrums following the visits, these visits were stopped. Starting in April 2014, an Alternative Family Services clinician arranged for mother and R.C. to meet in “therapeutic”
visitations . M other missed all four scheduled visits, even though all were scheduled in mother’s city of residence. N o further visits with R.C. were offered. D.B . refused
contact with mother.
Mother ’s whereabouts remained unknown for several month s u n til August 2014 , when she reemerged and contac t ed her social worker. Although s he no longer was in the
local area and f

ound contact with the C ounty to be too stressful
, she wanted to resume
reunification servi ces. About a week

- and

- a

- half later, m other returned to the area and to

treatment at Ujima West. On August 22 , the C ounty prepare d an updated case plan. It listed adoption as the goal for R.C. and D.B

. Noting the lengthy gap in mother’s treatment program at Ujima West, it also documented mother’s failure to make progress with individual or family therapy , and other requirements of her plan

. After several continuances, a review hearing took place on September 12
, 2014, nearly 12 months after the juvenile court took jurisdiction

. In a written update prepared for the hearing, the C ounty reported mother had been struggling at Ujima West since her

return . She had angry outbursts, was reacting impulsivel y, and was ignoring suggestions
fro m her counselor. The Ujima West program coordinator had stated , on August 29, mother “could benefit from a menta l health evaluation.” On September 11, mother tested

pos itive for alcohol.4

At the September 12 hearing, the juvenile court heard from mother . She testified
she had , just in August, begun to request visitation with R.C. and D.B. ; had, at some unspecified point, requested a psychological eval uation, but had not received one; and had not been given costs for traveling to visits with her children (even though the July 7,
2014 , report states the C ounty had been providing bus tickets, transportation stipends, and visitation transportation and scheduling ). After hearing argument and considering the various written reports, the court ascribed minimal credibility to mother, f ound reasonable services had been offered or provided
, and found “active efforts” had been made “to provide remedial services and rehabilitative programs design ed to prevent the breakup of the Indian family, and that these efforts were unsuccessful .” Further, it found there was not a substantial probability the children would be returned to mother, even
within an extended reunification time. It therefore termin ated reunification services and scheduled a hearing for January 7, 2015
, to determine the children’s perman ent placement. Mother promptly sought writ review.
D ISCUSSION In accord with the Federal Indian Child Welfare Act of 1978 (ICWA ; 25 U.S.C. § 1901 et seq. ), title 25 U nited S tates C ode section 1912(d), “[s]ection 361.7, subdivision (a), [of California’s Welfare and Institutions Code 2 ] requires ‘a party seeking . . . termination of parental rights over . . . an Indian child [to] provide evidenc e 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

. . . .’ ” ( C.F. v. Superior
Court (2014) 230 Cal.App.4th 227, 237 ( C.F. ), italics added; see A doptive Couple v. Baby Girl (2013) __ U.S.__ [ 133 S.Ct. 2552, 2562 ] .) Active efforts are “timely and
affirmative” efforts
, taking into consideration the relevant aspects of the Indian child’s tribe and available tribal resources. ( C.F. , supra , 230 Cal.Ap p.4th at pp 239

– 240 .)

2 All further statutory references are to the Welfare and Institutions Code unless indicated.5

Whether ICWA applies or not, “a court may not order a hearing pursuant to section 366.26” to terminate parental rights “ ‘unless there is clear and convincing
evidence that reasonable services have been provided or offered to the pa rent or legal guardian.’ ( § 366.21, subd. (g)(1), italics added.)” ( C.F. , supra , 230 Cal.App.4th at

p. 238 .) To be reasonable, services must be tailored to the facts of the particular case. ( Adoption of Hannah S. (2006) 142 Cal.App.4th 988, 998 ( Hannah S. ).) Under California law, there is often no significant difference between the “active efforts” required by ICWA and the “reasonable services” regularly required under
section 366.21. ( C.F. , supra , 230 Cal.App.4th at p. 238 ; Hannah S.
, supra , 142 Cal. App.4th at p. 998

. ) Though the juvenile court must make the separate finding of
active efforts
, “the standards in assessing whether ‘active efforts ’ were made to prevent the breakup of the Indian family, and whether reasonable services under state law wer e provided, are essentially undifferentiable.” ( In re Michael G. (1998) 63 Cal.App.4th 700, 714.) Indeed, California’s Welfare and Institutions Code has always required an

“ ‘ “effort . . . be made to provide suitable services, in spite of the difficulti es of doing so or the prospects of success.” ’ ” ( C.F. , supra , 230 Cal.App.4th at p. 238 ; In re Michael
G. , supra , 63 Cal.App.4th at p. 714.) Especially when a juvenile court’s finding on active efforts involves credibility determinations, as it did here, we review the finding for substantial evidence, meaning we review the record in a light most favorable to the trial court order and uphold the juvenile court’s findings unless no rational factfinder could reach the same conclusion. ( C.F. , supra , 230 Cal.App.4th at p. 239 .) 3
Mother claims there is no substantial evidence of active efforts, because the
C ounty failed to make visitation happen and because it left untreated the mental health

3 Even if our review were ind ependent, we would reach the same result in this case. (See In re K.B. (200 9) 173 Cal.App.4th 1275, 1286 [ citing authority from Alaska and suggesting when services rendered could be gleaned directly from record, “active efforts” would be a mixed question of law and fact reviewed independently]; but see C.F. , supra , 230 Cal.App.4th at p. 239 & fn. 8 [rejecting this approach as inconsistent with California’s dependency law].)6

issues underlying mother ’s unfitness as a parent. Mother notes Dr. Frank’s belief that
mother “ ‘ needs a ton of work and really should be doing individual counseling ’ ” ; the Ujima West coordinator’s statement that mother “could benefit from a mental health
evaluation ” ; and mother’s own testimony that she once, at some unspecified point, requested a psychological evaluation.
The evidence the juvenile court credited, however, supports the court’s finding of
active efforts. As to visitation, the evidence shows the C ount y provided transportation costs and went to lengths to set up four therapeutic visits with R.C., but mother rejected
those efforts. Even though D.B. refused to meet with mother, the evidence shows C ounty personnel met with D.B. to try and facilitate visit ation. That this was ultimately
unsuccessful does not mean the C ounty did not make active efforts. Nor was the C ounty required to meet mother’s eleventh

- hour request for visitation given the unlikelihood reunification could be accomplished within a reaso nable time frame. (See In re Misako
R. (1991) 2 Cal.App.4th 538, 547 [services adequate if “ reason able under the circumstances” and need not be perfect]; In re K.B. , supra , 173 Cal.App.4th at p. 1288 [ affirming conclusion of active efforts and holding active efforts does not require provision of services that would be futile]; see also In re Julie M. (1999) 69 Cal.App.4th 41, 4 7

– 4 8 [reasonable services provided when child opposed visits with mother and agency attempted to facilitate discussions between mother and child]; id

. at p. 48 [“By her own volition, she avoided the services she was provided

. ”].) As to mother’s mental health issues, t he various C ounty reports demonstrate
mother was in fact provided individual therapy sessions but unilaterally disc ontinued
them and , as Dr. Frank commented
, left services from May to August, during the heart of
her reunification period

. Thus, mother received individual therapy before she disengaged
from services
, and the therapy still could not help mother stay on track. As for the Ujima West coordinator’s statement, it was made just days before the September 12, 2014 review hearing. Based on the poor reports the juvenile court heard about mother’s return to Ujima West, the evidence supports the court ’s implicit
conclusion the recommendation or request for the psychological evaluation had simply7

come too late to get mother back on track in time to reunite with her children. Notably, the coordinator from Ujima West did not st ate a mental health evaluation was likely to lead to a timely correction of mother’s problems. (See In re K.B. , supra , 173 Cal.App.4th at p. 1288 [active efforts does not require services that would be futile].) In sum, m o ther was provided ample opportun ities to address her mental health needs but did not cooperate or meaningfully engage

. 4

D ISPOSITION
M other’s petition is denied on the merits. (§ 366.26, subd. ( l )(1)(C); Cal. Rules of Court, rule 8.452(h); In re Julie S. (1996) 48 Cal.App.4th 988, 990

– 991.) Her request for a stay of the January 7, 2015 , permanency hearing is denied. Our decision is final as to this court immediately. (Cal. Rules of Court, rule 8.490(b)(2)(A).)

4 We also note “offering services as to a later born child, after previous reunification efforts had failed, would be an idle act not required by ICWA” ( In re K.B. , supra , 173 Cal.App.4th a t p. 1284.) Mother’s previous loss of her eldest children and her unsuccessful interactions with Children and Family Services further support the juvenile court’s decision regarding the adequacy and likely success of efforts in this case.8 _________________________ Banke, J.

We concur:

_________________________ Humes, P. J.

_________________________ Margulies, J.