Filed 12/21/15; pub. order 12/31/15 (see end of opn.)




                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                DIVISION ONE

                                         STATE OF CALIFORNIA


In re A.L. et al., Persons Coming Under the
Juvenile Court Law.
                                                        D068464
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
                                                        (Super. Ct. No. NJ13677B-C)
        Plaintiff and Respondent,

        v.

AMBER L.,

        Defendant and Appellant.


        APPEAL from orders of the Superior Court of San Diego County, Michael Imhoff,

Commissioner. Affirmed.



        Nicole Williams, under appointment by the Court of Appeal, for Defendant and

Appellant.

        Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel, Jennifer M. Stone, Deputy County Counsel, for Plaintiff and Respondent.
       Amber L. appeals from orders terminating her parental rights to her minor children,

A.L. and A.R. (together minors), under Welfare and Institutions Code section 366.26.

(Statutory references are to the Welfare and Institutions Code unless otherwise noted.)

Amber's appeal raises issues relating to the substantive provisions of the Indian Child

Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.), and related California statutes. We

conclude the juvenile court erred by refusing to hear testimony on the issue of active efforts

at the permanency planning hearing, but that the court's error was harmless. We also reject

Amber's contention that insufficient evidence supported the juvenile court's finding that

continued parental custody would likely result in serious physical or emotional damage to

the minors, and affirm the orders.

                    FACTUAL AND PROCEDURAL BACKGROUND

       In November 2013, Amber arrived at a probation drug test appointment with her

two-year-old daughter, A.R., and told her probation officer that she had used heroin just

hours before. Amber told the officer A.R.'s father, Manuel R., was waiting in the car and

could care for the child. When officers went to the car, Manuel also appeared to be under

the influence of drugs. Officers searched Manuel and found a hypodermic needle in his

pocket. Officers also searched the car and found marijuana and another needle in Amber's

purse. Both parents were arrested and A.R. was taken to Polinsky Children's Center. At

the time of their parents' arrest, A.R. and her half-sister, four-year-old A.L., were living

with their paternal grandmother. Neither Amber nor Manuel lived with the paternal

grandmother. Amber was staying in hotels and Manuel was homeless. (Manuel's parental



                                               2
rights to A.R. were also terminated, as were A.L.'s father's rights, but neither father is a

party to this appeal.)

       As a result of the parents' arrests, the San Diego County Health and Human Services

Agency (Agency) filed petitions on behalf of the minors under section 300, subdivision (b),

alleging they had suffered, or were at a substantial risk of suffering, serious physical harm

as a result of their parents' inability to care for them because of drug use. The Agency's

report for the detention hearing revealed Amber's history with the Agency, including

failing to reunify with an older son as a result of drug abuse and several referrals related to

her drug use in the years preceding the current petitions. A.L. tested positive for

methadone at birth, but Amber successfully completed voluntary services and avoided

further intervention by the Agency at that time.

       Amber is an enrolled member of the Iipay Nation of Santa Ysabel. At the time of

her arrest, she told the Agency's social worker the minors might be eligible for enrollment

as members of the tribe. Before the jurisdiction and disposition hearing, the Agency

provided the tribe with formal notice of the hearing and the family's social worker, who

was part of the Agency's Indian Specialty Unit, contacted the tribe's director of family

services, Linda Ruis. Ruis indicated the children should be considered Indian children

under ICWA, and that she intended to file a declaration for the jurisdiction and disposition

hearing on behalf of the tribe.

A. Jurisdiction and Disposition Hearing

       Before the jurisdiction and disposition hearing, the Agency's social worker, Sara

Whitney, met with Amber while in custody at Las Colinas Detention and Reentry Facility.

                                               3
The social worker discussed services available to Amber as a member of a Native

American tribe and provided contact information for specific service providers. At the

hearing in December 2013, the Agency recommended the court order reunification services

for Amber and that the minors remain in the home of the paternal grandmother. Ruis also

testified at the hearing. At the conclusion of the hearing, the juvenile court made true

findings on the petitions, declared the minors dependants, and found reasonable efforts

were made to prevent their removal.

       The juvenile court also separately found "by clear and convincing evidence pursuant

to 25 U.S.C. section 1912, and based in part upon the testimony of a qualified expert

witness, the continued custody of the child[ren] by the parent or Indian custodian is likely

to result in serious emotional or physical damage to the child," and that under title 25

United States Code section 1912(d) "active efforts have been made to provide remedial

services and rehabilitative programs designed to prevent the breakup of this Indian family

and that these efforts have proved unsuccessful." The juvenile court ordered the minors

removed from their parents' custody and placed with their paternal grandmother in

accordance with ICWA's placement preferences. The court also ordered reunification

services for both parents and supervised visitation for Amber upon her release from

custody. The court set a six-month review hearing for June 12, 2014.

B. Six-Month Review Hearing

       During the review period, Amber made little progress in addressing her drug abuse

and failed to participate in the reunification services she was referred to by the Agency.

Amber did not stay in contact with Whitney or follow through on Whitney's repeated

                                              4
efforts to engage Amber in drug treatment. In early March 2014, Ruis informed Whitney

that Amber told Ruis she was in treatment, but that Amber had not provided any details

about the treatment facility. Days later Amber left a message for Whitney indicating she

was waiting for a bed to open at a residential treatment program, but when Whitney

returned the call the phone number did not have an operational voicemail. Whitney finally

met with Amber in late March, and Amber told Whitney she had been in touch with

Southern Indian Health to obtain parenting and individual counseling, and that she had

been attending Narcotics Anonymous meetings twice a week.

       Shortly thereafter, Whitney spoke with the parenting coordinator at one of Southern

Indian Health's partners, who indicated she would follow up with Amber to help her obtain

counseling. Whitney then followed up with Amber and provided her with contact

information for the parenting coordinator, as well as additional referrals for residential drug

treatment services. Whitney and Ruis continued their follow up efforts, and Amber finally

entered a residential drug treatment program at the end of April, just six weeks before the

review hearing. After just four days, however, Amber tested positive for

methamphetamines and morphine and left the program.

       During the review period, Amber's visitation with the minors at the paternal

grandmother's home was sporadic. She would sometimes arrive unannounced, once after

the minors were already asleep, and frequently failed to show up after promising to visit.

In January, the paternal grandmother told the social worker she stopped telling the minors

Amber would be visiting to prevent their disappointment when Amber did not follow

through. Amber's visitation somewhat improved in March and April, but at Amber's final

                                              5
visit just days after she left the drug treatment program the paternal grandmother found a

hypodermic needle in the couch where Amber had fallen asleep during the visit.

       In the Agency's report for the review hearing it recommended termination of

reunification services, and that the court set a hearing under section 366.26 to select a

permanent plan for the minors. The Agency's report indicated Whitney had consulted with

Ruis, who agreed with the recommendation. The Agency recommended the court find "by

clear and convincing evidence and pursuant to [ICWA] (25 U.S.C. 1912[d]), active efforts

were made to provide remedial services and rehabilitative programs designed to prevent

the breakup of this Indian family and that these efforts have proved unsuccessful." The

Agency also recommended the court find, "beyond a reasonable doubt, pursuant to 25

U.S.C. Section 1912(f) and based in part upon the testimony of a qualified witness, the

continued custody of the child[ren] by the parent or Indian custodian is likely to result in

serious emotional or physical damage . . . ."

       The parents contested the Agency's recommendations but failed to appear at the July

2014 review hearing. At the hearing, the court denied the parents' request for a

continuance and received the Agency's report into evidence. Whitney was available for

cross-examination, but no questions were posed to her. Amber's counsel asked the court to

continue reunification services without providing any specific basis for the request. The

juvenile court found by clear and convincing evidence that return of the minors to their

parents would be detrimental and that reasonable services designed to reunify the family

were offered, but were unsuccessful. The court also adopted the Agency's recommended

findings under title 25 United States Code sections 1912(d) and (f) of ICWA. The court

                                                6
terminated services, continued placement with the paternal grandmother and set a

permanency planning hearing under section 366.26 for November 2014.

C. Termination of Parental Rights and Permanency Planning Hearing

      As a result of continuances requested by the Agency for additional time to obtain an

Indian expert declaration from Ruis, the permanency planning hearing did not occur until

May 2015. In the period between the termination of reunification services and the hearing,

Amber visited the minors only sporadically. She was again incarcerated during a period of

that time, and after failing to show up for a supervised visit in March 2015 was unreachable

for several weeks directly preceding the permanency planning hearing.

      The paternal grandmother continued to care for the minors and was committed to

adopting them. Shortly after the final review hearing, the paternal grandmother was

displaced and was living in hotels with the minors for several weeks. By April, however,

the paternal grandmother's housing stabilized and she and the minors were living with a

maternal aunt and doing well. A.L. had some development delays as a result of the trauma

and upheaval they had experienced, and was participating in therapy. A.L.'s therapist did

not think even visits with Amber were in A.L.'s best interest. A.L., who was five at the

time of the permanency planning hearing understood the concept of adoption and wanted to

live with her grandmother. A.L. stated she loved Amber but did not want to live with her.

Four-year-old A.R. also expressed a desire to stay with the paternal grandmother.

      In its report for the permanency planning hearing, the Agency recommended the

termination of parental rights and opined the minors were generally and specifically

adoptable. Ruis submitted an expert declaration in advance of the permanency planning

                                             7
hearing that echoed the Agency's recommendations. Ruis stated it was her opinion that the

minors would suffer serious emotional or physical harm if returned to the care and custody

of the parents. Ruis based her opinion on Amber's and Manuel's extensive histories of drug

abuse and criminal activity, the parents' failure to participate in services and visitation

provided during the dependency proceeding, and Amber's failure to reunify with her oldest

child in a prior dependency proceeding. Ruis also opined "that active efforts were made to

provide remedial and rehabilitative services designed to prevent the breakup of th[e] Indian

family or eliminate the need for the removal."

       At the permanency planning hearing, the court received the Agency's reports and

Ruis's declaration into evidence, and heard the testimony of the family's current social

worker, Ruis, Amber, and the paternal grandmother. While cross-examining Ruis, Amber's

counsel asked Ruis if Amber had access to remedial services after reunification services

were terminated. Ruis responded she did not know. The juvenile court then asked if the

portion of Ruis's declaration that addressed the Agency's active efforts to provide remedial

services and rehabilitative programs under ICWA was relevant in light of the fact that the

court had already found adequate active efforts were made by the Agency at the six-month

review hearing. In response, Amber's counsel stated "the only opinion provided was that

active efforts were made to provide remedial and rehabilitative services designed to

prevent the break-up of the Indian family." The court concluded the issue of active efforts

had already been determined, and the only expert testimony properly before the court

concerned the issue of continued custody under title 25 United States Code section 1912(f).

The Agency's counsel agreed with the ruling and Amber's counsel stated she "would accept

                                               8
that ruling from the court." The court then excluded the portion of Ruis's declaration

concerning the Agency's active efforts.

       Amber's attorney continued her examination of Ruis. Ruis testified she met Amber

in person for the first time that day and learned Amber had recently enrolled in a

methadone program and had clean drug tests. Ruis also stated that she had based her

declaration on the Agency's reports and two phone conversations she had with Amber

during the proceedings. She admitted her husband had passed away a few months earlier,

and "so a lot of things that I've read probably I don't know. I'm not saying that I would

change my opinion because she's gotten into the methadone program. It's just that's—I've

been like very emotional and in and out."

       Amber testified that after the termination of reunification services she sought help

for her drug addiction and had enrolled in treatment. The court admitted a letter from a

treatment program indicating Amber was enrolled, and an attendance sheet showing Amber

had attended eight 12-step meetings between April 17, 2015 and May 10, 2015. Amber

also testified she visited the minors regularly without the Agency's knowledge. The

paternal grandmother, however, denied the visits occurred.

       After arguments of counsel, the juvenile court found by clear and convincing

evidence the minors were generally adoptable and that none of the exceptions to adoption

applied. The court also found, beyond a reasonable doubt, that continued custody of the

minors by the parents was likely to result in serious emotional and physical danger to the

minors. The court terminated parental rights and referred the minors to adoptive

placement.

                                              9
                                        DISCUSSION

                                               I

       Amber asserts the juvenile court erred at the permanency planning hearing by

excluding evidence related to the Agency's active efforts to provide remedial and

rehabilitative programs to prevent the breakup of her family and by failing to make a

finding that active efforts were made. Amber also asserts the juvenile court's finding of

active efforts at the six-month review hearing was not adequate. The Agency responds that

Amber's failure to challenge the finding made at the review hearing by writ petition under

California Rules of Court, rule 5.482 (subsequent rule references are to the California

Rules of Court), resulted in a forfeiture of her challenge to that finding. The Agency also

contends that even if Amber's challenge is properly before this court, the juvenile court's

active efforts finding at the review hearing was adequate and the court did not err by

precluding further litigation of the issue at the permanency planning hearing.

                                               A

                                       Legal Standards

       Congress enacted ICWA in 1978 "to protect the best interests of Indian children and

to promote the stability and security of Indian tribes and families . . . ." (25 U.S.C.

§ 1902.) The law defines an Indian child as "any unmarried person who is under age

eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in

an Indian tribe and is the biological child of a member of an Indian tribe; . . . ." (25 U.S.C.

§ 1903(4).) 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

                                              10
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 2006, California's statutes were amended to bring them into greater conformity

with ICWA. The new legislation, which became effective on January 1, 2007, amended

section 366.26 to add new subdivision (c)(2)(B)(i) and added section 361.7. (Stats. 2006

ch. 838, § 52.) Amended section 366.26 states that the court "shall not terminate parental

rights if, 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." (§ 366.26,

subd. (c)(2)(B)(i).) New section 361.7 states, in relevant part: "(a) [A] party seeking an

involuntary foster care placement of, or 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. [¶] (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." (§ 361.7.)

       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

                                                11
severance of the parent-child relationship." (Letitia V. v. Superior Court (2000) 81

Cal.App.4th 1009, 1016; see also In re K.B. (2009) 173 Cal.App.4th 1275, 1284.) This

court recently held that " '[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.C. (2015) 239 Cal.App.4th 641, 657.)

        "Whether active efforts were made is a mixed question of law and fact." (In re K.B.,

supra, 173 Cal.App.4th 1275, 1286.) 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." (Id. at p. 1286.) If we conclude that the court did not comply with ICWA

and California's concomitant provisions, we apply the harmless error standard and reverse

only if the error is prejudicial. (See, e.g., In re E.W. (2009) 170 Cal.App.4th 396, 402-

403.)

                                               B

                                          Forfeiture

        The Agency contends Amber is foreclosed from challenging the juvenile court's

active efforts finding at the final review hearing because she did not challenge that finding

                                              12
by writ petition. Section 366.26, subdivision (l)(1) states that "[a]n order by the court that

a hearing pursuant to this section be held is not appealable at any time unless all of the

following apply: (A) A petition for extraordinary writ was filed in a timely manner. (B)

The petition substantively addressed the specific issues to be challenged and supported that

challenge by an adequate record. (C) The petition for extraordinary review was summarily

denied or otherwise not decided on the merits." (§ 366.26, subd. (l)(1).) Under this statute,

"[a]ll court orders, regardless of their nature, made at a hearing in which a section 366.26

permanency planning hearing is set must be challenged by a petition for extraordinary

writ." (In re Merrick V. (2004) 122 Cal.App.4th 235, 247 (Merrick V.).)

       The provision ensures that challenges to findings made at the time reunification

services are terminated are resolved expeditiously, and do not interfere with later

proceedings. (See Merrick V., supra, 122 Cal.Ap.4th at p. 248 ["The goals of expedition

and finality would be compromised if [such orders are] permitted to be raised by appeal

from the order itself or from a later permanent planning order and therefore allowed to

remain undecided until well after the permanent plan was decided upon. "]; Joyce G. v.

Superior Court (1995) 38 Cal.App.4th 1501, 1512 ["The purpose of the statute is to

provide for immediate writ review of meritorious issues subsumed within the order setting

a section 366.26 hearing to ensure that the hearing is not infected with reversible error even

before it commences."].)

       Amber was not present at the final review hearing but the court ordered her counsel

to notify her of her right to file a writ petition and ordered the court's business office to

serve her with a writ packet at her designated address. Amber did not subsequently seek

                                               13
writ review and she does not allege defective notice of her right to obtain review of the

orders made at the review hearing. As a result, we agree with the Agency that Amber

forfeited her right to challenge the juvenile court's active efforts finding at the final review

hearing. Even though Amber did not preserve a challenge to that finding, we must still

address her assertion that the juvenile court erred by failing to allow further litigation on

the issue of active efforts and not making the finding a second time at the permanency

planning hearing.

                                               C

           Juvenile Court's Failure to Make Active Efforts Finding at Termination

       As discussed, Amber asserts the court erred by failing to allow evidence related to

the issue of the Agency's active efforts under ICWA and California's related provisions at

the time her parental rights were terminated. We agree that the court erred by foreclosing

evidence on this point on its own motion and by failing to make a new active efforts

finding.

       This case highlights a gap between federal law and the manner in which California's

dependency proceedings are conducted. "[B]ecause the ' "critical decision[s] regarding

parental rights . . . [and] that the minor cannot be returned home" ' [are] made at the earlier

review hearing, the issues at the section 366.26 hearing are generally limited to the

questions whether the child is adoptable and whether there is a statutory exception to

adoption." (In re Matthew Z. (2000) 80 Cal.App.4th 545, 552-553.) "[U]nlike the

termination hearings in most states, the purpose of the final termination hearing in

California 'is not to accumulate further evidence of parental unfitness and danger to the

                                               14
child, but to begin the task of finding the child a permanent alternative family placement.' "

(Ibid.)

          ICWA's active effort requirement under title 25 United States Code section 1912(d)

parallels the reasonable efforts finding that must be made at the final review hearing under

state law. Specifically, before setting the permanency planning hearing the juvenile court

must first find "the return of the child to his or her parent or legal guardian would create a

substantial risk of detriment to the safety, protection, or physical or emotional well-being

of the child." (Welf. & Inst. Code, §§ 366.21, subds. (e) & (f), 366.22, subds. (a) & (b).)

Under this scheme, it is efficient for the juvenile court to make the requisite ICWA

findings, including the active efforts finding under title 25 United States Code section

1912(d), "at the final review hearing where the court sets the matter for a determination on

a permanent plan" since those same findings "form the factual basis for a later termination

decision." (In re Matthew Z., supra, 80 Cal.App.4th at p. 553.)

          Section 366.26, subdivision (c)(2)(B)(i), however, explicitly allows the issue to be

addressed at the permanency planning hearing. (See Quarterman v. Kefauver (1997) 55

Cal.App.4th 1366, 1371 [Words of a statute are to be given a plain and commonsense

meaning. "When the words are clear and unambiguous, there is no need for statutory

construction or resort to other indicia of legislative intent, such as legislative history."].)

The provision states that "at 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; see also rule 5.485, subd. (a) ["The court may only terminate

parental rights to an Indian child or declare an Indian child free of the custody and control

                                                15
of one or both parents if at the hearing terminating parental rights or declaring the child

free of the custody and control of one or both parents, the court . . . [f]inds by clear and

convincing evidence that active efforts to provide remedial services and rehabilitative

programs designed to prevent the breakup of the Indian family were made"], italics added.)

If the legislature intended to foreclose reconsideration of the active efforts requirement at

the permanency planning hearing, it could have easily done so. Indeed, the preceding

subdivision of the statute ((c)(2)(A)) precludes terminating parental rights unless "[a]t each

hearing at which the court was required to consider reasonable efforts or services, the

court has found that reasonable efforts were not made or that reasonable services were not

offered or provided." (§366.26, subd. (c)(2)(A), italics added.)

         Here, when Amber's attorney attempted to question Ruis on the portion of her

declaration addressing whether the Agency had made the active efforts required under

ICWA and sections 361.7 and 366.26, subdivision (c)(2)(B)(i), the court on its own motion

prohibited further questions and struck the portion of Ruis's declaration which stated the

Agency made the requisite active efforts. This was error under the plain language of

section 366.26, subdvision (c)(2)(B)(i). The provision clearly contemplates consideration

of the active efforts requirement at the permanency planning hearing. The juvenile court's

decision to preclude evidence on the issue and failure to make a finding was, therefore,

error.

         The Agency argues reconsideration of the issue at the permanency planning hearing

was unnecessary and suggests the issue here is analogous to that presented in Matthew Z.

Matthew Z. held the juvenile court did not err by failing to make a detriment finding under

                                              16
ICWA (25 U.S.C. 1912(f)) at the time parental rights were terminated when the court had

previously made the finding at the final review hearing. We agree with the Agency that the

timing of the detriment finding at issue in Matthew Z. and the timing of the active efforts

finding at issue here are analogous. Both required findings highlight the gap between

ICWA's requirements and the statutory timeline of juvenile dependency proceedings in this

state. As we observed in Matthew Z., requiring a second detriment finding at the time

parental rights are terminated raises "difficult issues as to whether the parent would have

the opportunity to avoid the required writ procedures and reassert the

identical . . . issue . . . when appealing from the section 366.26 order." (Matthew Z., supra,

80 Cal.App.4th at p. 554.) Matthew Z., however, was decided before the 2006 amendments

to the Welfare and Institutions Code made clear ICWA's active efforts finding is properly

addressed at the termination hearing.

       The Agency also notes that in In re. A.C. (2015) 239 Cal.App.4th 191 (A.C.), we

recently "upheld an 'active efforts' finding made by the juvenile court at a 12-month-review

hearing where the juvenile court terminated services and set a section 366.26 hearing."

The issue before the court in A.C., however, was not the same as that presented here.

There, the father argued he had not forfeited his right to challenge the active efforts finding

at the final review hearing and could properly proceed on a writ petition under rule 8.452

"even though his previously appointed appellate attorney declined to file such a writ

petition after the 12-month orders were made." (A.C., at p. 644.) In order to determine if

the father's appointed appellate attorney had provided ineffective assistance of counsel by

failing to challenge the active efforts finding, the court reviewed and affirmed the earlier

                                              17
ruling. (Id. at p. 654.) A.C. did not consider whether that finding foreclosed

reconsideration of the issue at the permanency planning stage.

       We recognize some inefficiency is created by the potential of a second active efforts

finding. However, the statute is clear that the issue is properly before the juvenile court at

the permanency planning hearing. This result is particularly appropriate where, as in this

case, the permanency planning hearing is delayed well beyond the time court terminates

reunification services. (See Matthew Z., supra, 80 Cal.App.4th at p. 555 [Holding (before

the 2006 amendment to section 366.26 and addition of section 361.7), that the juvenile

court should address the detriment finding at the permanency planning hearing if the

"parent presents evidence of changed circumstances or shows the finding was stale because

the period between the referral hearing and the section 366.26 hearing was substantially

longer than the 120-day statutory period."].)

                                                D

                                      Prejudicial Effect

       Although we conclude the court erred by preventing Amber from revisiting the issue

of active efforts at the permanency planning hearing, we do not agree with Amber that

reversal is warranted. It is clear from the record that the services provided to Amber

constituted active efforts. Because it was not reasonably probable that the finding, if made,

would have been in Amber's favor, the court's failure to make the finding was harmless.

(In re Jason L. (1990) 222 Cal.App.3d 1206, 1218.)




                                                18
       Amber argues the juvenile court's earlier active finding was not supported by the

evidence and that the court improperly conflated active efforts under ICWA with the

reasonable services standard that applied to the termination of her reunification services

under section 366.21, subdivision (e). She asserts that recently issued Bureau of Indian

Affairs (BIA) Guidelines for State Courts and Agencies in Indian Child Custody

Proceedings (Guidelines) clarify that "active efforts" are "a level of effort beyond

'reasonable efforts' " that are required for states to qualify for federal foster care and

adoption assistance under the Social Security Act. (Guidelines, 80 FR 10146-02 (Feb. 25,

2015), at pp. 10147, 10150.)

       Amber concedes, however, that the new BIA Guidelines are "consistent with

statutes and Rules of Court from this State" and also recognizes that the Guidelines are not

binding authority. As we recently held "[e]ven in light of the new guidelines information,

the general principle still applies[] that '[t]he adequacy of reunification plans and the

reasonable of [the Agency's] efforts are judged according to the circumstances of each

case.' " (A.C., 239 Cal.App.4th at p. 657.) As discussed, to satisfy ICWA and California's

corresponding requirements 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 . . . ." ' " (Ibid.)



                                               19
       The record here demonstrates the Agency satisfied this standard. The Agency

identified the problem that prevented Amber from providing safe and adequate care for her

minor children—her drug abuse—and made a good faith effort to develop and implement a

plan to address the problem and to return the minors to Amber's care. The Agency

attempted to maintain contact with Amber in the face of her steady resistance. The Agency

and Ruis were even successful in getting Amber into treatment for a brief period of time.

       Further, Whitney kept Ruis abreast of the proceedings from the very first weeks of

the dependency and sought Ruis's help and input throughout the proceedings. The record

shows Ruis and Whitney worked together to try to help Amber obtain the treatment she

needed. The Agency also placed the minors in the home of the paternal grandmother in

compliance with both Amber's wishes and ICWA's statutory placement preference. (See In

re Anthony T. (2012) 208 Cal.App.4th 1019, 1027 ["In the absence of good cause to the

contrary, the preferred placement order for an Indian child is with a member of the child's

extended family; a foster home approved by the Indian child's tribe; an Indian foster home;

or an institution for children approved by an Indian tribe or operated by an Indian

organization."], italics added.)

       Amber asserts the Agency's efforts were not adequate because "despite the

recognized problems with the paternal grandmother's housing" it did not "check for

available housing resources" or make efforts to place the minors with maternal relatives

who had a tribal affiliation. Amber also argues there was no evidence the Agency took

steps to secure the minors' tribal membership. With respect to placement, by the time of

the permanency planning hearing the paternal grandmother's housing situation had

                                             20
improved. She was in stable housing, with a maternal relative, and was committed to

adopting the minors. Amber points to the fact that the juvenile court declined to find the

children were specifically adoptable because of the housing insecurity faced by the paternal

grandmother. But this finding did not negate the Agency's efforts to keep the minors in

Amber's preferred placement with the paternal grandmother, who also satisfied IWCA's

primary placement preference.

       With respect to Amber's assertion that the Agency failed to identify maternal

relatives for placement, Whitney was in contact with the maternal grandmother about

visitation and provided her with information she needed to obtain clearance from the

Agency to set up visitation. Additionally, at the time of the permanency planning hearing

the paternal grandmother and the minors were living with a maternal relative. Ruis also

testified that if the paternal grandmother was not approved to adopt the minors then Ruis

would look for another tribal placement.

       As to the Agency's efforts to enroll the minors in the tribe, as soon as Ruis was

contacted she confirmed Amber's membership in the tribe and that the minors should be

considered members as well. As the BIA Guidelines make clear, "the determination by a

tribe of whether a child is a member . . . is solely within the jurisdiction and authority of

the tribe." (Guidelines, 80 FR 10146-02 at p. 10153.) "[F]ormal enrollment is not required

for tribal membership. . . . The only relevant factor is whether the tribe verifies that the

child is a member or eligible for membership." (Ibid.) Amber did not raise any deficiency

in the Agency's efforts to enroll the minors in the tribe in the juvenile court and presents no



                                               21
argument here concerning why Ruis's verification of the minors' eligibility for membership

is insufficient.

       In sum, the Agency was not required to, nor could it have, forced Amber to take the

steps necessary to be able to safely parent the minors. "The reality is that childhood is

brief; it does not wait while a parent rehabilitates himself or herself. The nurturing

required must be given by someone, at the time the child needs it, not when the parent is

ready to give it." (In re Debra M. (1987) 189 Cal.App.3d 1032, 1038.) Although the

Agency might have done more to assist Amber, its efforts in this case satisfied ICWA and

state law requirements.

                                               II

       Amber next contends insufficient evidence supported the juvenile court's finding

that her continued custody of the minors would likely result in serious physical or

emotional damage to them.

                                               A

       Before the court can terminate parental rights it must make a finding, "supported by

evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that

the continued custody of the child by the parent . . . is likely to result in serious emotional

or physical damage to the child." (25 U.S.C. § 1912(f); see also § 366.26, subd.

(c)(2)(B)(ii) ["The court shall not terminate parental rights if: (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' . . . , that

the continued custody of the child by the parent is likely to result in serious emotional or

                                               22
physical damage to the child."]; and 361.7, subd. (c) ["No foster care placement or

guardianship may be ordered in the proceeding in the absence of a determination,

supported by clear and convincing evidence, including testimony of a qualified expert

witness, as defined in Section 224.6, 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."])

       We review this detriment finding for substantial evidence. (In re Barbara R. (2006)

137 Cal.App.4th 941, 951.) 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. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) The appellant has the burden

of showing there is no evidence of a sufficiently substantial nature to support the court's

finding. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)

                                              B

       In terminating parental rights, the juvenile court found, beyond a reasonable doubt,

that the minors' continued custody by either parent would likely result in serious emotional

or physical damage to the minors. Amber asserts this finding was not supported by the

evidence because Ruis testified she had not met Amber in person before the permanency

planning hearing, and Ruis admitted she was not aware before that day that Amber was

participating in drug treatment and had negative drug tests. Ruis, however, was informed

of the case within weeks of the minors' removal from their parents' custody and had been

                                              23
kept abreast of developments in the case by the Agency's social worker throughout the

proceedings. (Amber also asserts the court's finding was not supported by the evidence

because the letter from the drug treatment program that was admitted into evidence at the

hearing stated she enrolled in treatment on April 13, 2014. Other evidence in the record,

however, refutes this assertion and makes clear the provider's letter contains a

typographical error, inadvertently stating 2014 instead of 2015.)

       Further, the juvenile court's finding was not based solely on Ruis's declaration. The

court made the detriment finding after considering all the evidence, observing all the

witnesses, including Amber, and assessing their credibility. The evidence before the court

at the time of the selection and implementation hearing showed that Amber could not

safely parent the minors or provide them with long-term stability. Substantial evidence

supported the court's finding beyond a reasonable doubt that continued custody of the

minors by either parent was likely to result in serious emotional or physical damage to the

minors.

                                       DISPOSITION

       The orders are affirmed.

                                                                              McINTYRE, J.

WE CONCUR:


McCONNELL, P. J.


HALLER, J.



                                             24
Filed 12/31/15
                             CERTIFIED FOR PUBLICATION

                 COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                 STATE OF CALIFORNIA

In re A.L. et al., Persons Coming Under the
Juvenile Court Law.
                                                D068464
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
                                                (Super. Ct. No. NJ13677B-C)
        Plaintiff and Respondent,

        v.                                      ORDER CERTIFYING OPINION FOR
                                                PUBLICATION
AMBER L.,

        Defendant and Appellant.

THE COURT:

        The opinion in this case filed December 21, 2015 was not certified for publication.
It appearing the opinion meets the standards for publication specified in California Rules of
Court, rule 8.1105(c), the request pursuant to California Rules of Court, rule 8.1120(a) for
publication is GRANTED.
        IT IS HEREBY CERTIFIED that the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105(c); and
        ORDERED that the words "Not to Be Published in the Official Reports" appearing
on page 1 of said opinion be deleted and the opinion herein be published in the Official
Reports.



                                                                   McINTYRE, Acting P. J.
Copies to: All parties
