Opinion
A153781 A153868
12-07-2018
In re K.R., a Person Coming Under the Juvenile Court Law. MARIN COUNTY HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. M.R., Defendant and Appellant. MARIN COUNTY HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. P.C., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. JV26089A)
In these consolidated appeals, M.R. (Mother) and P.C. (Father) (collectively, Parents) challenge the juvenile court's order terminating their parental rights to K.R. (Minor), an Indian child pursuant to the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901, et seq.). They challenge the juvenile court's findings that (1) the Marin County Department of Health and Human Services (the Department) made active efforts to prevent the breakup of the Indian family, and (2) Parents' continued custody is likely to result in serious emotional or physical damage to Minor. We affirm.
BACKGROUND
Petition, Jurisdiction, and Disposition
In March 2015, the Department filed a Welfare and Institutions Code section 300 petition alleging Minor, then 13 months old, was at risk due to Mother's substance abuse, homelessness, and current incarceration. The petition alleged Mother had left Minor with his maternal grandmother, Gina R., who has a chronic history of mental illness and substance abuse and who Mother admitted Minor was not safe with. Mother and Minor are both members of the Federated Indians of Graton Rancheria (the Tribe) and the court found Minor to be an Indian child. Minor was detained and placed in a foster home arranged by the Tribe. The Tribe subsequently intervened in the proceedings.
All undesignated section references are to the Welfare and Institutions Code.
According to Department reports, Mother began using drugs when she was 11 years old, and also had a history of depression. Mother used heroin and methamphetamine during the early months of her pregnancy with Minor, stopped about three months into the pregnancy, then relapsed in the fall of 2014. Mother began leaving Minor with various relatives for days at a time, without making proper arrangements for his care. In January 2015, Mother was arrested for possession of a controlled substance. Shortly before the petition was filed, Mother failed to enter a substance abuse inpatient program that the Tribe had agreed to pay for. After detention, Mother entered an inpatient program but left within days. At the end of March, Mother tested positive for marijuana, amphetamine, and opiates. In April, Mother was hospitalized for a heroin overdose, in an apparent suicide attempt.
The juvenile court declared Father to be Minor's presumed father. According to subsequent reports, Father has a history of substance abuse and homelessness.
We omit background facts about Minor's alleged biological father, who is not a party to these consolidated appeals.
In August 2015, the juvenile court sustained jurisdiction. The court ordered two supervised visits per week for both Mother and Father. In late August, the Department filed a section 388 petition requesting Mother's visits be reduced to once per week and Mother be required to appear before Minor is transported to the visit. The petition reported that Mother had missed three out of four scheduled visits since the jurisdiction hearing, resulting in an increase in Minor's negative behaviors and anxiety. The Department subsequently requested the same order issue regarding Father's visitation, after Father missed four of the seven scheduled visits since the jurisdiction hearing. The court issued the requested orders.
Prior to the disposition hearing, Department reports described numerous active efforts made to prevent the breakup of the Indian family, including extensive prepetition and postpetition attempts to get Mother into drug treatment. In addition, Lara Walker, a qualified ICWA expert witness, filed a declaration and testified at the disposition hearing. She opined that the Department had provided active efforts, notably, "the Department's efforts to work in concert with the Tribe and mother to get mother into residential treatment and our coordinated efforts on investigating relative placements for [Minor]." She further opined that continued custody would likely result in serious emotional or physical damage to Minor in light of both parents' criminal history and recent incarceration (Father had been incarcerated in March, and Mother in July); both parents' history and current use of drugs and alcohol, and need for long term sobriety; Mother's mental health issues; and Father's inability to manage his anger.
According to a Department report filed in early September, both Father and Mother were homeless and actively using drugs. The Department recommended a case plan for Mother including mental health treatment, substance abuse treatment, drug testing, and anger management and parenting classes. Father's recommended case plan included substance abuse treatment, drug testing, an anger management program, and parenting education. At the September 2015 disposition hearing, the juvenile court found that active efforts to prevent the breakup of the Indian family had been made and were unsuccessful, and that continued custody by Parents was likely to cause Minor serious emotional or physical damage. The court adjudged Minor a dependent of the court, removed him from parental custody, and ordered the case plans recommended by the Department, including visitation once per week. Six Month Review, Termination of Services, and Suspension of Visitation
In February 2016, Minor's counsel filed a section 388 petition seeking to suspend visits with both Mother and Father. Minor's counsel submitted a declaration stating that Father's last visit was in August 2015, but he had recently attempted to set up a visit. Minor's counsel stated Minor was extremely attached to his caregivers and had a very difficult time being separated from them, had a lot of anxiety, and needed constant reassurance. Minor last saw Mother in November 2015 when she appeared at the caregiver's home unannounced; the visit was traumatic for Minor, who subsequently was more aggressive, had difficulty sleeping, and took days to settle down. The petition requested visits be suspended until Parents demonstrate sobriety and stability. The Department and the Tribe both supported the petition.
In April 2016, the court held the six-month review hearing and the contested hearing on Minor's section 388 petition. Father was present at the hearing; Mother was not. The Department's status review reports recommended reunification services for both parents be terminated. The Tribe agreed with this recommendation. According to the Department's report, Mother failed to comply with any case plan objectives. She remained homeless and had been incarcerated twice since disposition. She had entered several treatment programs, but each time left within days and continued to use drugs. Father was arrested for possession of a controlled substance in October 2015 and shoplifting in November 2015. He was in jail for about a month starting in November and then was homeless living under a bridge. Father had not completed any of his case plan objectives. He did enter an inpatient treatment program in January 2016, and testified at the review hearing that he was scheduled to complete the program in a few days and had been participating in anger management and parenting classes as part of the program. During the review period, the Department had attempted to remain in contact with both parents, provided Mother with a mental health referral, provided information about substance abuse services to both parents, and provided bus tickets to Mother for transportation to visits and appointments.
Neither parent had attended a single scheduled visit since the disposition hearing. However, Mother had twice attempted unannounced visits: in addition to the November visit discussed in Minor's section 388 petition, Mother was found passed out in the backyard of Minor's caregiver's home in January, after reportedly taking lithium pills. The Department social worker testified at the hearing that, because Father had not visited Minor since August 2015, Father would be like a stranger to Minor.
The juvenile court terminated reunification services for Father and Mother, set a section 366.26 hearing, and suspended visitation with Father and Mother. The court granted the Department discretion to allow resumed visitation. First Section 366 .26 Hearing and Tribal Customary Adoption
Father filed a writ petition challenging the orders terminating reunification services and suspending visitation, which this court denied.
In reports filed prior to the section 366.26 hearing, the Department recommended a plan of tribal customary adoption (§ 366.24), in keeping with the Tribe's traditional opposition to termination of parental rights. Minor had been placed with his maternal aunt and uncle since August 2015 and they were committed to tribal customary adoption and to keeping Minor connected with the Tribe, including by maintaining his relationship with his former tribal foster parents. In June 2016, Mother requested a visit with Minor, but failed to provide proof of sobriety and made no further contact with the Department. The Department recommended visits remain suspended, with consideration of reinstatement if either parent demonstrated 90 days of sobriety.
Minor was in a tribal approved foster home between March and August 2015.
In October 2016, the Tribe issued a Tribal Customary Adoption Order placing Minor with his maternal aunt and uncle. The Tribal Customary Adoption Order authorized supervised visitation for Mother provided she demonstrates six months of sobriety and participation in mental health programs, and no visitation for Father. The Tribe requested the juvenile court afford full faith and credit to the Tribal Customary Adoption Order, and the Department so recommended.
At the November 2016 section 366.26 hearing, Mother and Father represented, through counsel, that Father had been sober for ten months and Mother for four months, and they sought an additional opportunity to have Minor returned to their custody. In the alternative, they sought immediate visitation rights. Counsel for the Tribe argued that visitation need not be provided in a tribal customary adoption order, pursuant to section 366.24, subdivision (c)(10), and that the juvenile court had no authority to modify the visitation provisions of the Tribe's order, although it could refuse to afford full faith and credit if the order violated public policy.
The juvenile court found clear and convincing evidence that Minor was likely to be adopted, termination of parental rights would be detrimental because it would substantially interfere with Minor's connection to the Tribe, and the permanent plan was tribal customary adoption. The court issued an order affording full faith and credit to the Tribal Customary Adoption Order.
Mother appealed the section 366.26 order, but the appeal was subsequently dismissed as moot.
Postpermanency Review and Parents' Section 388 Petition
In April 2017, the Department filed a status review report asking the court to set another section 366.26 hearing. The Department and the Tribe had concluded that the maternal aunt and uncle were unable to meet Minor's needs and provide him with a permanent home, and Minor had recently been placed with his previous tribal foster parents. Minor was generally transitioning well into the foster home, although he displayed some aggressive behaviors with other children and was focused on excessive eating, a behavior that was also noted by his previous caregivers. The report noted the Department had no information on Mother and Father's "current emotional states, sobriety, or desire for visits," but opined that "reintroducing" them into Minor's life "would be premature, confusing and detrimental to [Minor]," who "likely . . . holds no memory of [Mother] or [Father] as parental figures." The Tribe issued a resolution rescinding the Tribal Customary Adoption Order. The juvenile court issued an order affording full faith and credit to the resolution, and set a new section 366.26 hearing.
In a July 2017 report, the Department informed the juvenile court that the Tribe no longer sought tribal customary adoption as the permanent plan, and the Department's new recommendation was traditional adoption. Minor's current caregivers were prospective adoptive parents and one was a member of the Tribe. The prospective adoptive parents were Minor's foster parents when he was first removed and were interested in adoption then, but "decided to step down" when the maternal aunt requested placement. They remained in contact with Minor during his placement with the maternal aunt and were now committed to adopting him. Minor appeared "comfortable and relaxed" in the home, and "recently told the foster parent that he missed her, which was significant because he has a difficult time showing and accepting affection." The Department continued to recommend against visitation, noting Minor had no contact with Mother since November 2015 and with Father since August 2015. However, the Department and the prospective adoptive parents believed once Minor had "fully settled in to his new home," future contact with Mother and Father would be in his best interest, assuming they were "sober and safe."
In August 2017, Father and Mother each filed a section 388 petition seeking visitation and six more months of reunification services. Father submitted a declaration stating he completed residential drug treatment in April 2016 and, since that time, had been attending two to three AA/NA meetings a week and meeting regularly with his sponsor; had no negative contact with police; completed an anger management class during his residential treatment; was currently attending weekly parenting classes and individual therapy; was employed full-time; was living in the paternal grandmother's home with Mother; and was taking medication for depression. He also submitted an undated letter from his probation officer stating that since Father's completion of residential drug treatment, he "regained a healthy relationship with his loved ones . . . , got his license back and began to focus on employment." Mother submitted a declaration stating she has been sober for "approximately eight months, and completed all treatment groups facilitated by Bay Area Community Resources"; attends "approximately four recovery meeting[s] every week" and meets with her sponsor "approximately every two weeks"; is employed full-time at McDonalds; and lives with Father. Mother submitted an October 2016 letter stating that she was attending the drug and alcohol treatment groups facilitated by Bay Area Community Resources and making "satisfactory progress in her recovery program." Both petitions argued visitation and reunification services would be in Minor's best interest because he had been removed from his relative placement and was now living with "virtual strangers."
The Department, the Tribe, and Minor's counsel all argued the petitions failed to make a sufficient showing to warrant an evidentiary hearing. The court agreed, noting the assertions in the declarations were uncorroborated, with no proof of drug tests, Father's completion of residential treatment, or Mother's progress in treatment since October 2016. Other assertions lacked relevant details, for example, the length of their employment or the stability of their housing. With respect to Minor's best interests, the court noted Minor "went from a tumultuous first year and a half to what has been described as a stable foster home for five months, then went to a relative placement for a period of time, which apparently lacked some stability, and is now back with the initial foster home. By all accounts he is doing well and behavioral issues, which accompanied him to placement with the foster home, are beginning to resolve. So clearly his interest is being well met at his current location. [¶] Is it in his best interest to disturb that at this point and to reopen reunification services? . . . [Y]ou're asking me for yet another change in this young child's life. He's just having a chance to bond." The court found insufficient evidence to warrant an evidentiary hearing, and summarily denied the petitions. Neither Mother nor Father appealed. Second Section 366 .26 Hearing and Orders
In reports filed in advance of the February 2018 section 366.26 hearing, the Department recommended the juvenile court order adoption as the permanent plan and terminate parental rights. Because one of the prospective adoptive parents is a citizen of the Tribe and the family participates in approximately two cultural events per month, the Department "joins the Tribe in supporting a conventional adoption, knowing that [Minor's] cultural heritage will continue to be supported." Minor was thriving in the prospective adoptive home, and his behavioral challenges "have decreased or ceased [al]together with consistent parenting and therapeutic interventions." Minor "used to not want affection," but now both accepts and returns it. The Department reiterated that the prospective adoptive parents were open to the possibility of contact with Mother and Father in the future, but emphasized that, "due to the fact that [Minor] has had so much disruption in his young life, any contact will need to be handled delicately and will be assessed by [the prospective adoptive parents] as [Minor] grows older."
At the hearing, the Tribe and Minor's counsel agreed with the Department's recommendation.
Lara Walker, the ICWA expert, filed a declaration in advance of the hearing. Minor had lived with the prospective adoptive family from March to August 2015, and then again continuously since March 2017. The prospective adoptive family was active in Tribe events and there were other Native American children living in the home. Walker summarized the Department's unsuccessful efforts to enroll Mother in drug treatment and mental health services. Mother's last supervised visit with Minor was in August 2015, and visits had been suspended in February 2016 pending verification of sobriety, which Mother had never provided to the Department. Walker summarized Father's need for substance abuse and anger management programs as reflected in his case plan, and noted he had provided no proof of treatment completion, sobriety, or other requirements of his case plan. Father's last visit with Minor was in August 2015. Walker opined that the Department made active efforts to prevent the breakup of the Indian family. She further opined that continued custody by Mother and/or Father would likely result in serious emotional or physical damage to Minor, in light of their past inability to care for him, history of substance abuse and incarceration, Mother's mental health issues, and their failure to demonstrate they completed necessary services. Walker concluded, "[Minor] demonstrates signs of being exposed to pervasive trauma at his young age of 3.5 and he requires parents who are patient, loving and tolerant. Placement and permanency with the prospective Adoptive Parents is in the best interest of this Indian boy." At the hearing, Walker testified that she had not spoken to Mother in more than a year and did not have any current information about Parents other than what they submitted in their section 388 petitions.
The juvenile court terminated parental rights and ordered a permanent plan of adoption. The court noted around the time of Minor's removal, Mother's substance abuse, Mother's conduct leaving Minor with inappropriate caregivers, and Father's incarceration "created a lot of havoc for this little boy, it created very significant emotional behavioral difficulties" and "I haven't really seen the kind of progress that I would have liked to have seen . . . ." The court stated, "living at your parent[']s home in a room when that situation has not worked out in the past is not the kind of stability that I was looking for," and parents had submitted "no confirmation" of their claimed employment or sobriety. The court concluded, "I am concerned that absent a termination of parental rights [Minor's] story will continue to have difficult twists and turns and a lack of finality, so I am making a finding beyond a reasonable doubt that the child's continued custody by a parent is likely to result in serious, emotional or physical damage." The court also found the Department made active efforts to prevent the breakup of the Indian family.
DISCUSSION
I. Active Efforts
A. Legal Standard
"ICWA provides that any party seeking foster care placement or termination of parental rights of an Indian child must first 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).)" (In re A.L. (2015) 243 Cal.App.4th 628, 638; see also § 361.7, subd. (a) ["a party seeking . . . termination of parental rights over . . . an Indian child shall 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 proved unsuccessful"]; § 366.26, subd. (c)(2)(B)(i) ["The court shall not terminate parental rights if: [¶] . . . [¶] (B) In the case of an Indian child: [¶] (i) At the hearing terminating parental rights, the court has found that active efforts were not made as required in Section 361.7."].)
"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." (§ 361.7, subd. (b).) "Active efforts have been described 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.' [Citations.] . . . ' "[T]he adequacy of reunification plans and the reasonableness of [the Agency's] efforts are judged according to the circumstances of each case." [Citation.] The Agency "must make a good faith effort to develop and implement a family reunification plan. [Citation.] '[T]he record should show that the supervising agency identified the problems leading to the loss of custody, offered services designed to remedy those problems, 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 A.L., supra, 243 Cal.App.4th at p. 638; see also In re Michael G. (1998) 63 Cal.App.4th 700, 714 ["the standards in assessing whether 'active efforts' were made to prevent the breakup of the Indian family, and whether reasonable services under state law were provided, are essentially undifferentiable"].)
" 'Whether active efforts were made is a mixed question of law and fact.' [Citation.] The reviewing court determines the services that were provided by reference to the record. 'Whether those services constituted "active efforts" within the meaning of section 361.7 is a question of law which we decide independently.' " (In re A.L., supra, 243 Cal.App.4th at pp. 638-639.)
B. Analysis
Parents do not contend the Department failed to provide active efforts before and during the reunification period. Instead, they argue those efforts were insufficient in light of the Department's failure to provide any services during the nearly two-year period between the termination of reunification services in April 2016 and the termination of parental rights in February 2018. While in some cases the active efforts requirement of ICWA and section 361.7 obligates an agency to provide services to parents after reunification services were properly terminated, we conclude this is not such a case.
Because of this conclusion, we need not decide whether, as the parties dispute, Parents forfeited certain arguments or whether additional active efforts would have been futile.
Parents point to In re A.L, which found the juvenile court erred in failing to make an active efforts finding at the section 366.26 hearing, in light of the statutory requirement "that '[a]t the hearing terminating parental rights' the court shall not terminate parental rights if it finds 'active efforts were not made.' (§ 366.26, subd. (c)(2)( B) (i), italics added; . . .)" (In re A.L., supra, 243 Cal.App.4th at p. 641.) The court noted that requiring an "active efforts finding . . . at the permanency planning hearing . . . is particularly appropriate where, as in this case, the permanency planning hearing is delayed well beyond the time court terminates reunification services." (Id. at p. 642.) Contrary to Parents' suggestion, In re A.L. does not indicate that additional active efforts following termination of reunification services are required in every case involving such a delay. Notably, considering facts similar in relevant part to this case, the court found it "clear" the active efforts requirement was satisfied. (Ibid.) The mother had been provided with six months of reunification services but "made little progress in addressing her drug abuse and failed to participate in the reunification services she was referred to by the Agency," and the juvenile court terminated services. (Id. at p. 634-635.) Because of continuances, the section 366.26 hearing was not held until ten months later. (Id. at p. 635.) There was no evidence that services other than visitation were provided during this time. (Id. at pp. 635-636.) At the section 366.26 hearing, the mother submitted evidence that she had enrolled in a drug treatment program, was attending 12-step meetings, and had clean drug tests. (Id. at pp. 636-637.) The juvenile court failed to make an active efforts finding at the section 366.26 hearing; however, the Court of Appeal found the error harmless because "it was not reasonably probable that the finding, if made, would have been in [the mother's] favor . . . ." (Id. at pp. 636, 640-643.) In so finding, the Court of Appeal relied on the agency's efforts during the reunification period, its placement of the minor with a relative, and its confirmation with the mother's tribe that the minor would be considered a member. (Id. at pp. 643-644.) In re A.L. thus instructs that, even when the section 366.26 hearing is held well after reunification services are terminated, and even when the parent presents evidence that they are addressing the problems which led to removal, additional services for parents after termination of reunification are not necessarily required.
In re Michael G., supra, 63 Cal.App.4th 700, also relied on by Parents, involved the failure to provide services during a period of time before reunification services were terminated. (Id. at p. 715.) The case has no relevance to the issue before us: when additional services to parents are required after the termination of services.
Indeed, as the analysis in In re A.L. suggests, while services to parents are the primary focus of active efforts, they are not the exclusive focus. Instead, active efforts may also include "inviting representatives of the Indian child's Tribe to participate in . . . family team meetings, permanency planning, and resolution of placement issues" (25 C.F.R. § 23.2), and the "pursuit of any steps necessary to secure tribal membership for a child if the child is eligible for membership in a given tribe" (Cal. Rules of Court, rule 5.484(c)(2)). Thus, a juvenile court's consideration of whether active efforts were provided may consider efforts other than services to parents. For this additional reason, the statutory requirement that active efforts be considered at the section 366.26 hearing does not mean additional services to parents must be provided following the termination of reunification services if there is a significant delay.
Parents point to the following example of active efforts in the federal regulations: "Providing post-reunification services and monitoring." (25 C.F.R. § 23.2.) Parents suggest the term "post-reunification" includes both the period after reunification and the period after reunification has failed. This is not a reasonable construction of the regulation. A plain reading of the term indicates it refers to a time after "reunification" of the parent and the minor. Moreover, the regulation provides that active efforts are those "intended primarily to maintain or reunite an Indian child with his or her family." (25 C.F.R. § 23.2.) Regularly requiring additional services after reunification has already failed is not reasonably likely to serve this purpose.
The complete list of examples of active efforts provided in the federal regulations are: "(1) Conducting a comprehensive assessment of the circumstances of the Indian child's family, with a focus on safe reunification as the most desirable goal; [¶] (2) Identifying appropriate services and helping the parents to overcome barriers, including actively assisting the parents in obtaining such services; [¶] (3) Identifying, notifying, and inviting representatives of the Indian child's Tribe 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) Conducting or causing to be conducted a diligent search for the 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) Offering and employing all available and culturally appropriate family preservation strategies and facilitating the use of remedial and rehabilitative services provided by the child's Tribe; [¶] (6) Taking steps to keep siblings together whenever possible; (7) Supporting 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) Identifying community resources including housing, financial, transportation, mental health, substance abuse, 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) Monitoring progress and participation in services; [¶] (10) Considering 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; [¶] (11) Providing post-reunification services and monitoring." (25 C.F.R. § 23.2.)
Parents also point to federal ICWA guidelines, which provide: "The court should not rely solely on past findings regarding the sufficiency of active efforts, but rather should routinely ask as part of a foster-care or [termination of parental rights] proceeding whether circumstances have changed and whether additional active efforts have been or should be provided." (Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act, 81 Fed.Reg. 96476 et seq. (Dec. 30, 2016) p. 43, at <https://www.bia.gov/sites/bia.gov/files/assets/bia/ois/pdf/idc2-056831.pdf> (ICWA Guidelines).) The ICWA Guidelines continue: "There are no specific time limits on active efforts, and what is required will depend on the facts of each case. . . . Even if a finding was made that sufficient active efforts were made to support the foster-care placement, circumstances may have changed such that the court may require additional active efforts prior to ordering [termination of parental rights]. For example, if a parent initially refused alcohol treatment despite an agency's active efforts to provide services, a court could find that these efforts satisfied the requirement for purposes of the foster-care placement. But, if the parent subsequently completes alcohol treatment and needs additional services to regain custody (such as parenting skills training), the court will need to consider whether active efforts were made to provide these services." (Ibid.) While these guidelines suggest that active efforts may require additional services following the termination of reunification services, they also indicate such services are only required if circumstances change. The juvenile court found Parents failed to make a sufficient showing of changed circumstances to warrant an evidentiary hearing on their section 388 petitions, and Parents presented no further evidence at the section 366.26 hearing. The ICWA Guidelines thus do not advance Parents' cause.
Parents object that they should not bear the burden of showing changed circumstances warranting additional active efforts after reunification services have been terminated. We disagree. Although the Department has the burden of showing active efforts were made and were unsuccessful (§ 361.7, subd. (a)), the Department satisfied this burden with its evidence of events during the reunification period. We see no basis in statute or case law to require the Department also prove circumstances have not changed since reunification services were terminated.
In this case, Parents do not dispute that active efforts were provided during the reunification period, and were unsuccessful. Reunification services were properly terminated. Visitation was properly suspended. For portions of the relevant period, the Department retained jurisdiction to resume visitation and indicated it would do so if presented with proof of sobriety, but neither parent submitted any such proof to the Department. The Department coordinated closely with the Tribe through the entire proceeding. Parents have not shown changed circumstances requiring additional active efforts. "Although the [Department] might have done more to assist [Parents], its efforts in this case satisfied ICWA and state law requirements." (In re A.L., supra, 243 Cal.App.4th at p. 645.) The juvenile court's finding that the Department provided active efforts was proper.
II. Detriment
A. Legal Background
ICWA provides that parental rights to an Indian child may not be terminated "in the absence of a determination, supported by evidence beyond a reasonable doubt, 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, subd. (f); see also § 366.26, subd. (c)(2)(B)(ii) ["The court shall not terminate parental rights if: [¶] . . . [¶] (B) In the case of an Indian child: [¶] . . . [¶] (ii) The court does not make a determination at the hearing terminating parental rights, supported by evidence beyond a reasonable doubt, including testimony of one or more 'qualified expert witnesses' as defined in Section 224.6, that the continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child."].)
Parents do not dispute that Walker was a qualified expert witness within the meaning of the relevant statutes.
"We review this detriment finding for substantial evidence. [Citation.] Under this standard, we do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence, or reweigh the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order and affirm the order even if there is other evidence to the contrary. [Citation.] The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the court's finding." (In re A.L., supra, 243 Cal.App.4th at p. 645.)
B. Analysis
Parents point to the following federal ICWA regulations: "(c) For a foster-care placement or termination of parental rights, the evidence must show a causal relationship between the particular conditions in the home and the likelihood that continued custody of the child will result in serious emotional or physical damage to the particular child who is the subject of the child-custody proceeding. [¶] (d) Without a causal relationship identified in paragraph (c) of this section, evidence that shows only the existence of community or family poverty, isolation, single parenthood, custodian age, crowded or inadequate housing, substance abuse, or nonconforming social behavior does not by itself constitute clear and convincing evidence or evidence beyond a reasonable doubt that continued custody is likely to result in serious emotional or physical damage to the child." (25 C.F.R. § 23.121.) The ICWA Guidelines explain: "The rule prohibits relying on any one of the factors listed in paragraph (d), absent the causal connection identified in (c), as the sole basis for determining that clear and convincing evidence or evidence beyond a reasonable doubt support a conclusion that continued custody is likely to result in serious emotional or physical damage to the child. This provision addresses the types of situations identified in the statute's legislative history where Indian children are removed from their home based on subjective assessments of home conditions that, in fact, are not likely to cause the child serious emotional or physical damage. [¶] . . . [¶] These provisions recognize that children can thrive when they are kept with their parents, even in homes that may not be ideal in terms of cleanliness, access to nutritious food, or personal space, or when a parent is single, impoverished, or a substance abuser. Rather, there must be a demonstrated correlation between the conditions of the home and a threat to the specific child's emotional or physical well-being." (ICWA Guidelines, supra, at p. 53.)
The juvenile court implicitly found Parents were not sober or their sobriety was unestablished. Moreover, there was no evidence Mother had taken steps to address her mental health issues. The requisite causal connection with respect to these issues was provided by the substantial damage to Minor resulting from Parents' substance abuse and Mother's mental health issues in the past. We conclude the court's detriment finding is supported by substantial evidence.
Mother argues any contention that she was likely to relapse is speculative. The juvenile court was entitled to consider Mother's history of relapse and the length of her asserted sobriety when determining detriment. We note that in In re A.L., even though the mother submitted documentation of recent drug treatment and clean drug tests at the section 366.26 hearing, the Court of Appeal found substantial evidence supported the juvenile court's detriment finding. (In re A.L., supra, 243 Cal.App.4th at p. 646.)
Because of this conclusion, we need not decide whether the evidence of Parents' housing and employment, Mother's insight into Minor's needs, any detriment caused by removing Minor from his foster family, or any special needs of Minor also supported the detriment finding.
Parents argue the Department had the burden to prove detriment, and therefore the absence of evidence of sobriety should not be held against them. The Department amply documented Parents' substance abuse and Mother's mental health issues before and during the reunification period, and Parents' failure to engage in services during that time. The juvenile court found no evidence of significant changes. As with active efforts, we see no basis in statute or case law to require the Department, in such a case, prove circumstances have not changed.
DISPOSITION
The order is affirmed.
/s/_________
SIMONS, J. We concur. /s/_________
JONES, P.J. /s/_________
NEEDHAM, J.