Opinion
A157108
03-04-2020
J.H., et al., Petitioners, v. THE SUPERIOR COURT OF DEL NORTE COUNTY, Respondent; DEL NORTE COUNTY DEPARTMENT OF HEALTH & HUMAN SERVICES, Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Del Norte County Super. Ct. Nos. JVSQ166126, JVSQ166127, JVSQ166128, JVSQ186077, JVSQ186078)
J.H. (Mother) is a member of the Yurok Tribe (the Tribe) and the mother of five children. Her three older children, L.L., M.T. and J.B.H., are enrolled members of the Tribe. The two younger children, G.A.H. and H.H., are enrolled members of the Tolowa Dee Ni Nation and also have Yurok ancestry. Mother and the Tribe petition under rule 8.452 of the California Rules of Court to vacate an order setting a selection and implementation hearing pursuant to Welfare and Institutions Code section 366.26. Both petitioners contend there was insufficient evidence to support the juvenile court's finding that the Del Norte County Department of Health & Human Services (the Department) made active efforts to prevent the breakup of the Indian family as required by the Indian Child Welfare Act of 1978 (25 U.S.C. § 912 et seq.; ICWA.) The Tribe also contends the expert testimony was insufficient to show that custody in Mother's home was likely to cause the children serious emotional or physical harm.
Further statutory references are to the Welfare and Institutions Code.
The order setting the section 366.26 hearing is supported by substantial evidence and complies with ICWA, so we deny both petitions on their merits.
BACKGROUND
Initial Petitions
In May 2016, the Department received a report of suspected child abuse from the Del Norte County Sheriff's Office. Mother's home smelled strongly of marijuana and there were drugs and paraphernalia in reach of the children. The children were placed in protective custody in foster care. Mother was arrested for child endangerment.
G.H., the father of the J.B.H., G.A.H, and H.H., was also arrested. The older children, M.T. and L.L., have different fathers. None of the fathers have filed a writ petition challenging the proceedings.
The Department filed a dependency petition alleging the parents failed to protect the children from harm, the children were suffering or risked suffering serious emotional harm due to their parents' conduct, the children had been left without any provision for support, and sibling abuse. Those allegations were sustained after a contested jurisdictional hearing.
Mother's case plan required her to work with United Indian Health Services (UIHS) or the county mental health department to address past trauma and develop healthy coping mechanisms. Mother was directed to work with the safety organized practice team to identify friends and family members to whom she could turn for help when she felt stressed or overwhelmed; refrain from using illegal drugs; refrain from using prescribed cannabis in the children's presence or the home; submit to random drug testing; and engage in a domestic violence program.
The Department's January 6, 2017, report for the six-month status review stated Mother "has displayed positive behavioral changes and has exhibited safe and appropriate parenting techniques when her children are in her care. The Department is hopeful that with an additional six months of services, [Mother] will be able to successfully parent her child . . . without the court's involvement." Mother was receiving mental health services through UIHS and felt she was benefitting from them. Her drug tests were clean for all controlled substances except marijuana. On January 20, 2017, L.L. and J.B.H. were returned to Mother's custody under a family maintenance plan, and wraparound services were added to the case plan.
In advance of the 12-month review hearing, the Department reported that Mother stopped participating in her parenting classes because she felt she no longer needed them after her fourth child was born in March 2017. Mother was participating in child family team (CFT) meetings and felt her life was stable. Mother had "demonstrated that she can utilize her support network when she needs it and is able to work as a team with her children's service providers. [Mother] has a strong sense of culture that also contributes to her ability to parent her children appropriately and to remain stable with her own metal health. [Mother] has continued to maintain housing that provides a safe and appropriate environment for her children and enjoys the opportunity to be a stay at home mother for her children." On July 7, 2017, the juvenile court ordered M.T. to be returned to Mother's custody.
According to the Department's December 28, 2017 status report, Mother was participating in her case plan "and has overall been able to provide a safe and stable home" for herself and her children, although she had been arrested for a domestic violence incident with her estranged husband and charges were pending. Mother met with her social worker and wraparound service providers regarding the incident and agreed to continue to do whatever was necessary to ensure the children's safety. The Department believed Mother was "able to identify toxic people in her life and she is now able to take the necessary steps to safeguard her daughter from being negatively impacted by any discord in the household; namely being able to call about her natural support to assist in times of crisis and preventing the need for outside agency to make such decisions. In addition, [Mother] has continued to build her support system and has continued to find her voice regarding her own desires related to her family and what is helping them remain successful. The Department is also encouraged by the fact that [Mother] continues to participate with her service providers through Wraparound and also encouraged that such services will continue to assist the family as the family exits court ordered services." The Department recommended that the court terminate family maintenance services and dismiss the dependency case.
A family maintenance review hearing was held on January 12, 2018. Mother was pregnant with her fifth child. The Tribe was neutral as to the Department's recommendation to dismiss the case and the children's counsel opposed it. The court expressed concern about the recent domestic violence incident, M.T.'s ongoing behavioral and educational issues, and Mother's continued involvement with her estranged husband. The court ordered the Department to prepare a new case plan offering Mother an additional six months of services and calendared a review hearing in three months in the expectation that it would terminate the dependency if Mother was doing well. On January 26, the court adopted the amended case plan that ordered Mother to continue to refrain from drug use and participate in the wrapround program and CFT meetings. Mother was also to work with her service providers and support network to prevent further domestic violence incidents.
The next review hearing was held on April 27, 2018, after Mother's fifth child was born. The Department recommended that the children live with Mother under a family maintenance plan. Mother had continued to participate in her case plan and extend her best efforts to maintain a safe and stable home. However, the family had been evicted and, after a temporary stay with a cousin, was living in a motel. Mother blamed the eviction on the owner's wish to rent the place to someone else, but the property manager said it was due to Mother's "failure to maintain the property and overall lack of cleanliness in the home." The social worker provided Mother with HUD (Housing and Urban Development) listings and promised to contact her with any other housing options as they became available.
A new suspected child abuse report of unsanitary living conditions, methamphetamine use by the parents, marijuana use by the two older children and further incidents of domestic violence was received but not substantiated.
The Department's status report stated it was "at a standstill to what further services can be offered to assist that family as the previous service[s] have been ineffective in making lasting changes to [the] underlying causes of the family's maladaptive behavioral patterns that appear to emerge under times of crisis." Those services included assistance with rent, utilities and the purchase of dumpsters; vouchers for food, diapers and wipes, headlice treatment, cleaning supplies, hygiene supplies and laundry service; car repairs; ongoing phone minute cards; bus passes; referrals for wraparound services, substance abuse services, CFT meetings, "PreCAPT" and mental health services, ongoing case management, home visits, and collaboration with service providers. The Department recommended that the court continue family maintenance services for three months until the next review hearing.
At the April 27 hearing, Mother reported the family was working with a 16-day homeless assistance program, had set up an appointment for a family stabilization program, and was starting to apply for HUD housing. The Department was investigating a report that the two oldest children were using marijuana. The court declined a request by the children's counsel to order drug testing for them, but cautioned that it would reconsider if Mother had a positive test "or anything else comes up . . . that other court orders are necessary."
On May 2, Mother tested positive for methamphetamine and marijuana. On May 9, she tested positive for marijuana. Based on the positive tests and a new referral, the three older children were drug tested and results were pending. Mother had spoken with a counselor at UIHS to develop a substance abuse treatment plan. The court recommended that she work with counselor Annie McLennan at UIHS, and warned that "I would expect mom to follow through."
On May 12, 2018, the Department learned that J.H., then age five, and M.T., then age seven, had tested positive for marijuana. On May 31, the Department filed original dependency petitions for G.A.H. and H.H., the two youngest children, alleging sibling abuse and failure to protect. By then Mother was working with drug counselor McLennan at UIHS.
The jurisdictional report for G.A.H. and H.H., dated June 20, 2018, indicated Mother had reengaged in substance abuse treatment with UIHS to address her relapse. She was willing to continue working with the Department but did not feel she needed mental health services because she was utilizing a medicine man through the Tribe. On June 22, 2018, the court sustained the petitions after a contested jurisdiction hearing.
The next status review hearing was held on July 27, 2018. The Department's report stated its hope that, with help, Mother could safely care for the children. "While the Department is impressed with the family's attempts to stabilize over the last two months there are still significant concerns that premature withdrawal of services could cause the family to struggle and subsequently re-enter. It is the Department's hope that with an additional six months of services, that the family will be able to benefit from Child Welfare Services (CWS) involvement and establish support systems that will maintain after CWS [is] no longer present." The Department was encouraged by Mother's initial engagement in services, but had "moderate concerns that [Mother] has a history [of] allowing such participation to lapse in times of stress and crisis." For that reason, it asked that Mother "show a steady and consistent participation in her services that will include: random drug testing, substance abuse services, mental health services, and wrapround services." The case plan required Mother to work with the Department to develop and implement a domestic violence relapse prevention plan, continue substance abuse and mental health treatment, and work with the wraparound program.
The next review report, filed October 18, 2018, described Mother as marginally compliant with her case plan. She had been asked to leave the home she was sharing with a cousin due to a conflict with another resident and had moved to a trailer park with the children. The Department continued to make weekly visits to the home and found it appropriate. On September 20, the Department received a report that Mother was drinking excessively and had verbally and physically abused the two older children. A social worker visited the home on October 10 and reported that Mother appeared to have consumed alcohol but did not seem unable to safely care for the children. The home was messy but not dangerous. "That being said, concerns were raised regarding [Mother's] overall ability to watch all five children; as three of the children were observed to be playing outside unattended and [Mother] was using alcohol as a means to cope with the present psychosocial stressors." Accordingly, the Department worked with mother to create a new action plan that included Mother reengaging with her mental health service providers at UIHS and continuing to submit to drug tests.
Section 387 Petition
On December 5, 2018, Mother again tested positive for methamphetamine. She had missed 11 random drug tests since her positive test in May. She had not attended any of her mental health appointments since July and the Department had received eight suspected child abuse and neglect reports. The family was being evicted from the trailer park due to Mother's failure to supervise the children, including on one recent occasion when a local sex offender reported to the sheriff's department that G.A.H. had wandered off.
The Department believed it could no longer ensure the children's safety in Mother's care. Its report summarized the history of previous efforts to avoid removing the children as follows. "The family has received extensive services through the department. In 2008, the family was offered voluntary family maintenance [services] to alleviate concerns of the Department. [Mother] ultimately refused services. The family came to the attention of the Department several times during this year, and services were offered, for counseling, parenting, and transportation but each time the services were declined. The family again was offered voluntary services and again they declined.
"In 2011 the family was brought to the court's attention due to ongoing substance abuse and domestic violence. The Department offered two parenting classes, PreCAPT services, case management, transportation, clothing, food vouchers, bus passes and ongoing counseling. [Mother] was successful and was ultimately reunited with her child. Since the closing of the original court involvement there has [sic] been numerous referrals, mainly surrounding[] domestic violence."
More recently the Department had provided assistance with "parenting, transportation, cleaning vouchers, case management and support network development. Additionally, public health nurses have offered services, including, case management, transportation, bus passes. Furthermore, there has been communication between the Department and Tribal Department, where the Tribal Social Services agreed to work with the family to help alleviate concerns of the Department and Tribal Social Services."
The Department recommended that Mother engage in a full substance abuse program with the county or UIHS and engage in a mental health assessment to address current and previous traumas related to her substance abuse and offered financial assistance such as cell phone minutes and gas vouchers to help Mother access services.
The children were detained in protective custody. On December 13, 2018, the Department petitioned under section 387 to change their placement to foster care. In a January 7, 2019 jurisdiction report, the Department expressed concerns about Mother's ongoing lack of participation in services, minimizing her concern about the children's positive tests for marijuana, and her efforts to disrupt and sabotage L.L.'s foster placement. Mother "appeared to be pleased that [G.A.H. and H.H.] only tested positive for THC." Her contact with the social worker was "hostile and minimum." She felt "harassed by social services" and wanted her case closed. Mother had not engaged in the mental health, drug testing or other required services required by her case plan or demonstrated an ability to provide a safe and stable home for the children. The court sustained the allegations of the new petitions.
Mother had a new boyfriend who had a history of domestic violence. J.H. appeared uncomfortable around the boyfriend and once refused to get off the school bus when he was waiting for her at the bus stop. M.T. and J.H. had significant untreated dental and medical problems. M.T. was in danger of prediabetes and there were concerns about J.H.'s weight, but Mother rejected referrals to a nutritionist. The children's dental care providers had been trying to get Mother to contact them for over a year. After the children were detained J.H. had five teeth pulled, two crowns, and four fillings. M.T. needed a temporary emergency filling, had a hole in one of his teeth, and was being referred for further treatment.
The February 4, 2019 disposition report for the three older children included a 17-page chart summarizing services provided to the family between May 2016 and January 2019. Those services included supervised visits; reminders of and offers to help Mother schedule and attend mental health appointments and engage in substance abuse services, transportation assistance in the form of bus passes, gas vouchers and rides, including rides to UIHS and other service providers; participation in CFT meetings; vouchers for laundry, cleaning, phone, diapers and food; and collaborations with the Tribe, ICWA social worker, UIHS and other service providers. A disposition report for the two younger children filed on February 6, 2019 reflected a similar and overlapping history of meetings, referrals, collaborations and other services.
Mother's long-standing substance abuse, mental health problems, domestic violence and poor resource management had yet to be mitigated despite efforts by service providers including child welfare, wraparound, and the Tribe. "[I]t appears that [Mother] has gained nothing from said services and is in fact in the same situation that led to the children's original removal and placement in out-of-home care in May of 2016. Limited conversations with [Mother] have continued to indicate that she has no real insight into the ongoing concerns related to her children and rather than acknowledging her own role in the present circumstances has instead remained steadfast in her belief that she is a victim of persecution and has been vilified by the Department." Moreover, "[p]ast conversations with [Mother] have indicated that there is nothing present that the Department can assist her with as [Mother] has stated on numerous occasions that 'I don't want anything from CPS. I am going to do this on my own.' "
The 33 months of services the family had received exceeded the 18-month outer limit on reunification services set in section 361.5, subdivision (a)(3)(A), so the Department recommended the court terminate services and set a hearing to determine a permanent plan for the children.
Disposition Hearing
The disposition hearing was conducted over five sessions between February 27 and April 22, 2019. Maria Tripp, a member of the Yurok tribe, testified for the Department as an expert on ICWA. Tripp had familiarized herself with the case by reviewing the service logs from 2014 to 2019 and the detention, jurisdiction, status and disposition reports for all five children. She opined that the Department provided active efforts to avoid the breakup of the Indian family and did all it could to work with the Tribe. The Department made appropriate efforts to help Mother find safe housing, including helping her with rent, connecting her with tribal housing, and helping her apply for HUD vouchers; it encouraged her to engage in mental health treatment and drug testing; made home visits; helped with the children; and provided rides and child care referrals to help her follow through with services. Tripp believed that, after three years of services, the children could not safely be returned to Mother's care.
Tripp's view that the Department provided active efforts was not based on any one factor such as poverty, inadequate housing or substance abuse. Rather, her assessment was based on the "whole, big picture" of the case, including Mother's failure to utilize services, supervise the children, or follow through with their medical and dental care.
Social worker Ashley Dalbec investigated three suspected child abuse reports regarding the family and ultimately detained the children in December 2018. Dalbec had urged Mother on multiple occasions to seek immediate mental health care through the county while waiting to get off a waiting list at UIHS, which Mother preferred to utilize. Dalbec also urged Mother to use her referrals for child care to help with her feeling of being overwhelmed. Mother "just dismissed me" and was "very hostile, walked away." Dalbec opined that Mother "does not do anything unless it benefits her in some way. She did not feel she needed to go to counseling because she had her children in her care." Dalbec believed the Department did everything it could to try to prevent the breakup of the family, but Mother usually refused help. She believed the children would be at substantial risk of harm in Mother's care based on her history of failing to follow through with services after the children were returned to her.
Social worker Melinda Anderson was the family's case carrying social worker from May to October 2016 and from June 2017 to December 2018. Anderson also believed the Department provided Mother with active efforts. She helped Mother obtain housing, seek employment, apply for Social Security, obtain trash service, and schedule her time to avoid becoming overwhelmed. Anderson offered to help Mother with budgeting, provided referrals for free child care, and gave Mother rides, gas vouchers and bus passes. She referred Mother for mental health services and "met with her countless times expressing to her the importance of making this appointment and the ramifications to her if she did not do it." Anderson also encouraged Mother to connect with family and tribal members by attending church and tribal events and finding a tribal mentor.
When Mother was evicted from or asked to leave various homes, Anderson showed her potential rentals, "constantly" took her to the HUD office to look for available options, searched for available homes on social media, contacted the Tribe about tribal housing, attempted to get her into subsidized housing and connected her with a homeless program. At various times the Department paid for Mother's rent, deposits on new rentals, and hotel payments.
Anderson continually reevaluated Mother's case plan in collaboration with Teresina Obie, a Yurok tribal social worker who was actively involved in the case from spring of 2016 until December 2018, as new referrals were made, new concerns were raised by the Tribe, or new information came to light. Anderson worked closely with Obie, reaching out to her whenever Mother needed help to see if the Tribe could help, conducting joint home visits, and conferring at biweekly tribal meetings. Anderson also encouraged Mother to see a medicine man if she felt it helpful, helped her set up and offered to accompany her to medical appointments for the children, offered programs to address the children's weight and eating habits, and visited the family "pretty consistently" during the family maintenance process.
Mother was referred for a mental health assessment through UIHS and possibly also with county mental health services in 2016. There was no mental health component in the original case plan because it was not evident that Mother suffered from an underlying trauma or mental health disorder that was impacting the children. Later, while Anderson was on maternity leave, that became a concern. With approval from the court and the Tribe, Mother began treatment with a medicine man in lieu of counseling. Anderson communicated regularly with Mother's medicine man and UIHS therapist during the early stages of the 2016 case, when Mother was engaging with those services.
After Mother was arrested for domestic violence in December 2017 and tested positive for methamphetamine in May 2018, it became evident that she required more intensive mental health services. Anderson tried to have Mother reevaluated through county mental health services, UIHS or another local therapist. She encouraged Mother to schedule and attend an appointment and offered help with transportation, but Mother felt she didn't need the services and then, after she finally made an appointment, missed it. She told Anderson that UIHS never returned the messages she left trying to reschedule, but UIHS reported that Mother never contacted them.
Anderson discussed residential substance abuse treatment with Mother after her initial positive methamphetamine test. Mother attended an inpatient drug program for six or seven days during the disposition hearing, but left without finishing the program after a disagreement with the group facilitator.
In Anderson's view, Mother took no accountability for her actions and tended to blame the Department or others for her problems. She "has always remained in the stance that she could never benefit from services. She didn't do anything wrong. So it was never her wanting to learn from anything. It was she was always the victim of something."
Mary Corcovolis took over as Mother's case worker in January 2019. Corcovolis testified about the Department's efforts to address L.L.'s and M.T.'s significant emotional, behavioral and dental problems. Mother continued to test positive for marijuana, as she had throughout the case. Although she attended two meetings with Corcovolis, she missed two or three appointments and told Corcovolis she did not want the Department's help.
Nice Lo works for the Department's wraparound program and had worked with the family for about a year. His main focus was M.T.'s behavioral issues. He and his team met with the family once or twice monthly, drove the children to and from school, drove Mother to and from medical appointments, helped her contact the medicine man, helped her schedule and plan visits and activities with the children, interacted with M.T.'s school, and helped Mother with a housing deposit. Mother decided to pause her participation in the wraparound around the time the children were detained for the second time.
Heather Blankenship is a family therapist and clinical supervisor with UIHS in Del Norte County. She had initially treated Mother about nine years earlier until Mother terminated treatment, and again starting in December 2018 or January 2019. Mother could have resumed therapy with Blankenship at any time during the interim. Mother suffered trauma due to the historical treatment of Native Americans, from having been sexually abused by a family member, and because she was shunned by her family after reporting the sexual abuse. Blankenship diagnosed Mother with PTSD (posttraumatic stress disorder), which is treated with counseling. Mother was also being treated for substance abuse.
UIHS substance abuse counselor Ronald Bates began working with Mother weekly around December 2018. He believed the counseling was addressing the majority of Mother's substance abuse issues, but gave her a mental health referral to "discuss anything more deep than I'm qualified to go into." UIHS would pay for residential treatment if Mother needed it, but Bates did not think it would be beneficial.
Therapist Rich England testified as an ICWA expert for the Tribe. He testified that Mother received "lots of services" from the Department over the years, but criticized the Department for failing to have her evaluated by a psychologist using "very specific tools" or to engage her in an inpatient dual diagnosis program. England believed the mental health evaluation that Mother was offered was inadequate. "[W]hen you get this higher level of need with somebody that has been in the system since they were young, with very serious physical, psychological, and emotional abuse issues, you just really need to look outside the box." It would be easy to find an appropriate psychologist because England "popped on the internet yesterday" and "found a psychologist in Humboldt County who specializes in sexual abuse. . . . [¶] And so for me to just kind of pop on five minutes and find that, I was, like, okay, this is something that I think when we get down to active efforts, that needs to be assessed. And especially when we're looking at losing five children." According to England, without a psychological assessment to determine the root causes of her problems, none of the services provided to Mother could have helped resolve the issues that led to the dependency. England also believed it was imperative that any ICWA expert witness interview the parents, the foster care providers, the social services agency and the tribe when preparing to testify.
Ruling
The court found by clear and convincing evidence that the Department made active efforts to avoid separating the family, but Mother consistently refused help. "[S]o she's kind of her own worst enemy." The court adopted the Department's proposed findings and orders as amended in court and scheduled a section 366.26 hearing for August 5, 2019.
Mother and the Tribe filed separate petitions for extraordinary writ pursuant to section 366.26 and California Rules of Court rule 8.452. Due to the time required to prepare the voluminous record and for the parties to brief the case, this court stayed the section 366.26 hearing pending further order.
DISCUSSION
Active Efforts
Under ICWA and California law, "[a]ny party seeking to effect a foster care placement of, or 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 programs 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).) Mother and the Tribe contend the evidence was insufficient to establish that the Department provided active efforts. We disagree.
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 placement 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.) The ICWA requirement at issue in this case provides that "[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 programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful." (25 U.S.C. § 1912(d).)
Section 361.7 incorporates the active efforts requirement into California's dependency statute. Under section 361.7, subdivision (b), "What 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."
California courts characterize 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 severance of the parent-child relationship." (Letitia V. v. Superior Court (2000) 81 Cal.App.4th 1009, 1016 (Letitia V.).) Many courts have equated the active efforts requirement with the state law requirement that reunification services provided to parents of a dependent child must be " 'reasonable.' " (In re Michael G. (1998) 63 Cal.App.4th 700, 713-714 (Michael G.); In re C.B. (2010) 190 Cal.App.4th 102, 134.)
Effective January 2019, section 224.1, subdivision (f) defines active efforts as "affirmative, active, thorough, and timely efforts intended primarily 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 accessing 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 shall be conducted in partnership with the Indian child and the Indian child's parents, extended family members, Indian custodians, and tribe."
Since the disposition hearing was conducted after the new statute's effective date, we shall assume that section 224.1, subdivision (f) applies in this case.
Section 224.1, subdivision (f) also incorporates the established rule that active efforts "shall be tailored to the facts and circumstances of the case," and lists examples of services such as conducting an assessment of the family's circumstances; identifying services that will help overcome barriers to unification; including tribal representatives in meetings and inviting them to participate in providing support and services; conducting a diligent search for a family or tribal placement for the minor; utilizing all available culturally appropriate family preservation strategies and tribal services; keeping siblings together when possible; facilitating visitation in the most natural setting possible; identifying community resources and making them accessible to the family; monitoring parental progress; considering alternate methods of addressing the needs of parents; and providing postreunification services.
The Tribe argues that the enactment of section 224.1, subdivision (f) fundamentally changed California dependency law by adopting the federal definition of active efforts set forth in 25 Code of Federal Regulations section 23.2, and suggests that prior cases analogizing the active efforts requirement to the reasonable services standard are no longer valid. We disagree. First, section 224.1, subdivision (f) is consistent with section 361.7, which, as noted above, codifies the active efforts requirement. Both statutes set forth the essential components of an active efforts approach: case-specific assessment; consideration of the prevailing social and cultural values of the tribe; and utilizing all available resources of the Indian child's family and tribe. Section 224.1, subdivision (f) complements section 361.7 by providing concrete examples of what "may" constitute active efforts, but it does not alter the concept itself. Second, the Tribe underestimates the rigor of California's reasonable services standard. As compared to other states, California has a " 'heightened view' " of what constitutes reasonable services under state law. (C.F. v. Superior Court (2014) 230 Cal.App.4th 227, 238, fn. 7.) Analogizing this standard to the active efforts requirement does not diminish the latter but instead rejects the idea that passive efforts by a social services agency would qualify as reasonable services under California law. (Ibid.)
Here, whether reviewed for substantial evidence (Michael G., supra, 63 Cal.App.4th at pp. 715-716) or independently to the extent the question presents a mixed question of law and fact (see In re K.B. (2009) 173 Cal.App.4th 1275, 1286), the record supports the court's finding that the services offered to Mother fulfilled the requirements set forth in sections 361.7 and 224.1. The primary theme underlying the Tribe's and, to an extent, Mother's active efforts arguments, echoes England's testimony that the Department's efforts fell short because it did not have Mother undergo a "comprehensive psychological evaluation . . . as a launching pad for establishing services and adjusting them to meet evolving needs." Such an evaluation, the Tribe maintains, "would have provided necessary clinical insight to [Mother's] personal and historic trauma, including her struggle to manage a serious life threatening illness, and could have been used to tailor the Department's services to properly address the underlying problems leading to the loss of custody."
The juvenile court reasonably rejected the Tribe's position. As is evident, Mother was offered mental health assessments and counseling throughout most of the dependency and reunification period and was given help making and getting to appointments, but more often than not she failed to engage those services. With the Tribe's approval she chose to engage in treatment with a medicine man rather than therapy at UIHS or through the county. When in 2018 the Department attempted to have Mother reevaluated through county mental health services, UIHS or a local therapist, Mother resisted making an appointment, missed the appointment she finally made, and may have lied about trying to reschedule it. Mother was also offered alcohol and drug treatment programs, including residential treatment. On this record, there is no basis to second-guess the court's rejection of England's view that the many services provided to Mother were inadequate because they did not include an evaluation by a psychologist. Nor, in any event, is it at all evident that Mother would have participated had such an evaluation been offered. (See In re A.L. (2015) 243 Cal.App.4th 628, 639 [erroneous finding of active efforts warrants reversal only if the error is prejudicial].)
The Tribe nominally acknowledges the multiple other services provided to Mother and the Department's efforts to see that she engaged in them, but labels those efforts as "minimal," "mechanical" and "not tailored." Mother makes a similar generalized claim that the Department failed to make active efforts over the course of the proceedings. Both petitioners, in essence, ask us to substitute our independent assessment of the evidence for the trial court's. We cannot. Evidence of the Department's extensive efforts to help Mother remedy the problems that led to the dependency is set out in our preceding discussion of the background and we need not repeat it. Suffice it to say that the testimony and social workers' reports amply support the juvenile court's determination that active efforts were made.
The Tribe's more specific claim that Tripp's expert testimony was insufficient to show a causal relationship between the conditions in Mother's home and the likelihood of harm to the children is also unpersuasive. ICWA requires that "no foster care placement may be ordered . . . in the absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." (25 U.S.C. § 1912(e); § 361.7, subd.(c).) To that end, the ICWA expert "shall be qualified to testify regarding whether continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child . . . ." (§§ 224.6, subd. (a), 361.7, subd. (c).)
Here, the Tribe did not object when the Department proffered Tripp as its ICWA expert, so it may not now challenge her qualification as an expert on appeal. (People v. Bolin (1998) 18 Cal.4th 297, 321.) Nor, in any event, would such a challenge prevail in light of Tripp's work as a professional ICWA expert for Del Norte and Humboldt Counties, prior positions as chair and vice chair of the Yurok counsel, 35-year tenure on the UIHS board of directors, and approximately 12 prior occasions testifying as a qualified ICWA expert. As to the substance of her testimony, Tripp spoke directly to the harm the children had suffered in Mother's care, Mother's pattern of engaging in remedial services when the children were removed but failing to follow through once they were returned, and the specific problems, including drug use, domestic violence, leaving the children unsupervised and failing to attend to their medical and dental needs, that led to Tripp's conclusion the children would likely suffer serious emotional or physical damage if returned to Mother. No more was required.
The Tribe concedes it does not contest Tripp's "cultural competency." --------
The Tribe also contends Tripp "did not understand the specifics of the case" sufficiently to identify a causal relationship between the conditions of the home and the likelihood of harm because she "has no formal training in childhood trauma or mental health" and based her opinion on the Department's extensive reports and service logs, rather than on personal interviews with members of the family or the Tribe. But such criticism goes to the weight of Tripp's testimony, and on this detailed and extensive record the trial court reasonably relied on her testimony in making its findings.
In sum, our careful review discloses no basis to disturb the trial court's considered determination that the Department made active efforts to prevent the breakup of this Indian family.
DISPOSITION
The order to show cause is discharged, the petitions for extraordinary writ are denied on the merits and the stay of the section 366.26 hearing is lifted. (See § 366.26, subd. (l); Cal. Rules of Court, rule 8.452(i); In re Julie S. (1996) 48 Cal.App.4th 988, 990-991.) Our decision is final immediately. (Cal. Rules of Court, rule 8.264(b).)
/s/_________
Siggins, P. J. We concur: /s/_________
Fujisaki, J. /s/_________
Petrou, J.