Filed 6/15/16 Paul G. v. Superior Court CA2/6
                   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


PAUL G.,                                                                     2d Juv. No. B270222
                                                                          (Super. Ct. No. 14JV00377)
     Petitioner,                                                           (San Luis Obispo County)

v.

THE SUPERIOR COURT OF SAN LUIS
OBISPO COUNTY,

     Respondent;

SAN LUIS OBISPO COUNTY
DEPARTMENT OF SOCIAL SERVICES,

     Real Party in Interest.



                   Paul G. (Father) challenges an order of the juvenile court terminating
reunification services and setting a hearing to select a permanent plan for his son, Z.,
pursuant to Welfare and Institutions Code section 366.26.1 Father contends there is no
substantial evidence that the San Luis Obispo Department of Social Services
(Department) made active efforts to prevent the breakup of this Indian family. (§ 361.7,
subd. (a).) We deny his petition for extraordinary relief.



          1 All   statutory references are to the Welfare and Institutions Code unless otherwise
stated.
                                           BACKGROUND
                   The Department removed Z. from his parents’ care in October 2014 after he
witnessed Father’s third heroin overdose in three months. Z. was three years old. At the
time, Father lived on Navajoa Avenue.
                   The court ordered Z. detained. It declared Father to be the presumed father
and ordered weekly supervised visits for both parents.2 At the detention hearing, Father
reported possible Indian heritage. Father’s counsel gave notice of Father’s new legally
designated mailing address: a post office box in Atascadero.                                At the
jurisdiction and disposition hearing in December 2014, the trial court found by clear and
convincing evidence the child could not safely be left in the care of either parent. (§ 361,
subd. (c)(1).) It ordered placement with a foster family and reunification services to both
parents, with a reunification goal of December 2015. It continued weekly supervised
visits.
                   Father’s case plan included substance abuse outpatient treatment and drug
testing, parenting classes, and a domestic violence program. Over the course of a year,
he completed the parenting program but did not complete drug treatment, did not provide
any negative drug tests, and did not participate in a domestic violence program.
                   In the first two months of reunification services, Father consistently
attended drug and alcohol treatment meetings, but concerns were expressed about his
“poor behavior” in the sessions. He met with the drug counselor to address this issue.
Father did not believe he needed domestic violence counseling. The Department urged
him to begin it.
                   In March 2015,3 the San Pasqual Band of Mission Indians reported that Z.
is a descendent of that tribe (the Tribe) through his paternal grandfather. In March, the
Department discussed with tribal representatives possible services and placement. In
April, the Department sent a letter to the Indian Health Council asking whether there
were any additional resources the Tribe would recommend for Father, whether there were

          2 Mother    is not a party to this petition for extraordinary writ.
          3 All   dates are in the year 2015 unless otherwise indicated.
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any resources supported by the Tribe near San Luis Obispo County, and whether there
were any providers used to working with tribal communities in the areas of domestic
violence, parenting education, substance abuse, and self-care. The Tribe did not have any
local resources, but provided input on the reunification services and a tribal social worker
helped the parents understand the reunification process. The Tribe agreed with Z.’s
foster placement.
               In May, the Department reported that Father had progressed little on his
case plan. He was not in compliance with substance abuse treatment or domestic
violence counseling. He was discharged from a drug treatment program because of
“disruption of group dynamics, triggering of participants, missing scheduled intake of
[Family Treatment Court], lack of participation, and lack of insight to substance related
issues.” He was continuing to test positive for Suboxone. The program required a
psychological examination as a condition of readmission. Father did not consent to the
examination.
               In June, the Department reported that Father had not undergone a
psychological evaluation. Father stated that in his opinion it was not necessary. His
Department caseworker met with him and explained that he needed to comply with the
drug treatment requirements. Father had not participated in treatment since his discharge
from treatment for noncompliance in March. Father consistently missed drug tests or
tested positive for Suboxone. He had a prescription for Suboxone, but his caseworker
explained that he needed a titration plan or a statement of medical necessity from his
doctor; otherwise, the tests would be considered “dirty.” Father did not obtain either.
The caseworker sent letters to Father about his noncompliance, but he no longer lived at
the Navajoa Avenue address.
               Before the six-month review hearing in July, the Tribe enrolled Z. as a
member. At the hearing, an Indian expert witness opined by declaration that the
Department made active efforts to provide services and rehabilitative programs designed
to prevent the breakup of this Indian family. The parties stipulated in writing that the
court could accept the declaration in lieu of testimony, except for one paragraph in which

                                             3
the expert recommended drug and alcohol treatment for both parents. The trial court
found by clear and convincing evidence that “active efforts were made to provide
remedial services and rehabilitative programs designed to prevent the breakup of this
Indian family, and these efforts were unsuccessful.” It found that Father’s progress
toward reunification was minimal. It continued reunification services and set the matter
for a 12-month review hearing in December.
              Father’s caseworker met with him in August about his noncompliance with
drug treatment. He was still not participating in drug treatment. She suggested that he
speak with his medical doctor about individual drug treatment counseling. Father missed
two visits with Z. in August.
              In October, Father underwent a psychological evaluation, but the drug
treatment program would not accept him for reentry because of safety concerns.
Although his caseworker had suggested individual drug treatment counseling, he did not
pursue this option.
              In October and November, the caseworker arranged for Father to obtain
drug and alcohol treatment in San Luis Obispo, at a new site where he had no negative
history, but he did not respond to messages with this information and did not appear for
the walk-in assessment she arranged. In more than 50 scheduled drug tests between
December 2014 and October 2015, Father did not produce one negative test, refused to
test or failed to appear 17 times, and submitted one diluted sample. On three occasions
he was removed from testing for failing to appear three consecutive times. Father missed
several visits with Z. and was not in consistent contact with the Department. His
caseworker tried to contact him by telephone and e-mail, with copies to his attorney, but
he did not respond. She previously explained to him that his case plan required him to
stay in contact with the Department.
              In December, the Department recommended the court terminate
reunification services to both parents. Father resumed contact with the Department. He
agreed to participate in individual drug treatment counseling and testing at the San Luis
Obispo site, but he provided a diluted urine sample at his initial assessment and was

                                             4
excluded from the program again in January when he did not appear for therapy sessions
or subsequent drug tests. He missed four visits with Z. in December.
              At the 12-month review hearing on January 29, 2016, the court took
judicial notice of the Department’s reports. The Indian expert testified about the
Department’s coordinated efforts with the Tribe to reunify Father and Z. Father’s
caseworker also testified.
              On February 3, 2016, the trial court terminated reunification services and
set the matter for a hearing in June 2016 to select a permanent plan for Z. It found the
Department provided reasonable services but there was no substantial probability that Z.
would be returned to his parents’ custody if services were extended beyond 12 months.
(§ 361.5, subd. (a)(1)(A) & (3).) It decided by clear and convincing evidence that “active
efforts were made to provide remedial services and rehabilitative programs designed to
prevent the breakup of this Indian family, and these efforts were unsuccessful.” It found
the confusion over Father’s mailing address was harmless because he had actual notice of
his case plan and noncompliance.
                                      DISCUSSION
                                        Forfeiture
              The Department contends that Father forfeited his right to challenge the
active efforts finding at the six-month review hearing when he stipulated to the
admissibility of the expert’s declaration, offered no contrary evidence, and did not object
to or challenge the finding. (Civ. Code, § 3516.) We agree he forfeited his right to
challenge the six-month finding, but his petition challenges the Department’s efforts after
the six-month review. Active efforts are required throughout the reunification period.
(In re Michael G. (1998) 63 Cal.App.4th 700, 715-716 [insufficient evidence of active
efforts where agency provided no services after six-month review hearing].) We review
Father’s appeal on the merits. (See § 366.26, subd. (l)(4)(B).)
                                       Active Efforts
              Before parental rights over an Indian child may be terminated, evidence
must be presented that “active efforts have been made to provide remedial services and

                                             5
rehabilitative programs designed to prevent the breakup of the Indian family and that
these efforts have proved unsuccessful.” (§ 361.7, subd. (a); 25 U.S.C. § 1912(d).) The
court may not order foster care placement unless it finds by clear and convincing
evidence, including expert testimony, that continued parental custody is likely to result in
serious emotional or physical damage to the child. (§ 361.7, subd. (c); 25 U.S.C.
§ 1912(e) & (f).)
              We review the trial court’s finding for substantial evidence, viewing the
record in the light most favorable to the judgment and upholding the trial court’s finding
unless it can be said no rational trier of fact could reach the same conclusion. (C.F. v.
Superior Court (2014) 230 Cal.App.4th 227, 239.)
              The facts of the case determine the particular services required. (§ 361.7,
subd. (b).) “Active efforts” must take “into account the prevailing social and cultural
values, conditions, and way of life of the Indian child’s tribe,” using “the available
resources of the Indian child’s extended family, tribe, tribal and other Indian social
service agencies, and individual Indian caregiver service providers.” (Ibid.) In contrast,
“passive efforts” entail drawing up a plan and leaving the client to develop his or her own
resources towards bringing it to fruition. (In re K.B. (2009) 173 Cal.App.4th 1275,
1287.)
              Active efforts must include “pursuit of any steps necessary to secure tribal
membership” for an eligible child and “attempts to use the available resources” of
extended family members, the tribe, tribal and other Indian social service agencies and
caregivers. (Cal. Rules of Court, rule 5.484(c)(2).) As in all cases, reunification services
must be designed to remedy the problem that led to removal. (In re Michael G., supra,
63 Cal.App.4th at p. 713.) The agency must provide suitable services regardless of
difficulty or the prospects of success. (In re Dino E. (1992) 6 Cal.App.4th 1768, 1777.)
              The Department actively took Father through each step of his case plan and
provided the resources he needed to succeed. The Department offered parental and
domestic violence education, individual therapy, substance abuse treatment, and drug
testing, all of which were designed to remedy the problem that led to removal. When his

                                              6
behavior in drug treatment led to his exclusion, the Department provided alternative
treatment at another location. Father went to one intake session there but provided a
diluted urine sample and never returned. In 15 months of drug testing, Father never
provided a “clean” urine sample. Father completed the parenting course, but did not
participate in the domestic violence program the Department offered, despite reminders
and encouragement from the Department. Father’s caseworker collaborated with the
Tribe. When Father stopped communicating with her, she made many efforts to contact
him by telephone and e-mail.
              Father contends there is no substantial evidence of active efforts because
the Department corresponded with him at the wrong address, did not offer services
recommended by the Tribe, and made no effort to connect him with the Tribe. We
disagree.
                                     Correspondence
              The Department sent its November 2014 report, an ICWA notice, one letter
concerning the visitation schedule, and seven noncompliance letters to the wrong address.
Substantial evidence supports the trial court’s finding that the erroneous mailings were
“essentially harmless as the [Father] had adequate notice of the issues before the court
and the concerns the Department had regarding the case plan issues.” (See, e.g., In re
Ryan R. (2004) 122 Cal.App.4th 595, 599 [no prejudice where trial court mailed
advisement of appellate rights to incorrect address but it appeared mother was actually
aware of her appellate rights].)
              Father received most of the noncompliance letters as attachments to reports
the Department sent to his correct address in June, September, and November 2015.
Father contends he “lost critical months,” but he received these reports long before the
court terminated services in February 2016. He told the court in May 2015 that he was
familiar with his case plan. He acknowledged the Department’s concerns about
noncompliance at the same time. His caseworker met with him regularly to discuss his
case plan, treatment alternatives, and concerns about his noncompliance. She personally
explained to him in June and August 2015 the need to follow his case plan, participate in

                                             7
testing, and complete drug treatment. She explained that his treatment program required
a psychological evaluation for reentry. He eventually stopped responding to her
voicemail messages. The trial court warned him at the six-month review hearing that it
was his responsibility to access voicemail.
                                   Recommended Services
              Father contends the Department’s efforts were not active because it did not
offer services recommended by the Tribe and others. But the Department offered
recommended services to the extent they were available and appropriate.
              At the six-month review hearing the Indian expert said that she would like
to see Father participate in “play therapy.” Play therapy was often available as part of the
drug and alcohol program, but Father did not participate in the program. At the same
hearing, the Department’s counsel commented that Family Treatment Therapy would be
an “excellent forum for [Father,]” but, “in order to access that . . . he does need to go to
drug and alcohol and cooperate with their service.” He did not.
              In September 2015, a drug treatment counselor recommended Dr. Gannon
and Star Drug Testing as alternative drug treatment providers. But Dr. Gannon did not
provide drug testing and Star Drug Testing did not meet the Department’s standards
because they do not observe drug tests. The Department offered a viable alternative. The
caseworker arranged for Father to attend drug treatment in San Luis Obispo, but Father
did not follow through. He was discharged when he did not appear for testing or
appointments.
                          Efforts to Connect Father with the Tribe
              Father contends the Department did nothing to take into account the values,
conditions, and way of life of the Tribe. There is substantial evidence to the contrary.
              The Department successfully secured Z.’s membership in the Tribe. The
Tribe participated in each hearing telephonically. The Department asked the Tribe for
input about reunification services that would take into account tribal social and cultural
values. The Department was required to use all available tribal resources, but no tribal
services were available in San Luis Obispo. The expert testified at the 12-month review

                                              8
hearing that the Tribe has resources in San Diego, including seasonal gatherings and
fiestas which it lists in a flyer, but there were none in the past six months. She said,
“because of the geographical distance, we really didn’t have anything to support him on
other than looking into his tribal lineage and looking for family.” The Department was
required to offer only “available” tribal resources. (§ 361.7, subd. (b); Cal. Rules of
Court, rule 5.484(c)(2).) It did so.
              We deny the petition for extraordinary writ. The request for a stay of
proceedings is denied.
              NOT TO BE PUBLISHED.



                                           TANGEMAN, J.

We concur:



              GILBERT, P. J.




              PERREN, J.




                                              9
                                   Linda D. Hurst, Judge

                        Superior Court County of San Luis Obispo

                           ______________________________

              Theresa G. Klein, for Petitioner.
              No appearance for Respondent.
              Rita L. Neal, County Counsel, and Leslie H. Kraut, Senior Deputy County
Counsel, for Real Party in Interest.
