Filed 4/22/16 In re K.B. CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


In re K.B. et al., Persons Coming Under the
Juvenile Court Law.

MENDOCINO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
                                                                     A145824
         Plaintiff and Respondent,
v.                                                                   (Mendocino County Super. Ct.
                                                                     Nos. SCUK JVSQ 15-17210,
DANIELLE B.,                                                         SCUK JVSQ 15-17211,
         Defendant and Appellant.                                    SCUK JVSQ 15-17212,
                                                                     SCUK JVSQ 15-17213)

         Danielle B. (Mother), mother of C.B., N.B., W.B., and K.B., appeals from the
juvenile court’s orders declaring her four children dependents of the juvenile court,
pursuant to Welfare and Institutions Code section 300, subdivisions (b) and (c),1 and
removing them from Mother’s custody, pursuant to section 361, subdivision (c)(1). On
appeal, Mother contends the juvenile court erred in finding that active efforts were made
to provide remedial services and rehabilitative programs designed to prevent the breakup
of this Indian family, pursuant to the Indian Child Welfare Act (ICWA).2 We shall
affirm the juvenile court’s orders.



         1
        All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
         2
             The children’s presumed father (Father) is not a party to this appeal.


                                                             1
                  FACTUAL AND PROCEDURAL BACKGROUND
       On April 30, 2015, the juvenile court granted the application of the Mendocino
County Health and Human Services Agency (Agency) for an order authorizing entry into
Mother’s family home to conduct a child welfare investigation, pursuant to section 328,
to determine whether child welfare services should be offered to the family and whether
juvenile court proceedings should be commenced. In its application, the Agency reported
that, between 2008 and 2013, the Agency had received 26 referrals for the family, which
had been minimally investigated due to the noncooperation of Mother. Then, in
September 2014, the Agency received two referrals from mandated reporters alleging
general neglect of the children, including poor hygiene and substandard and unsafe living
conditions. These allegations were found to be inconclusive and the Agency had
“worked creatively” with Mother on a voluntary basis “to put rudimentary interventions,
supports and services in place.” Beginning on March 24, 2015, however, the Agency had
received three more referrals alleging general neglect of the children; poor hygiene and
at-risk behaviors of then 12-year-old C.B.; and worsened living conditions for the family,
which lived outside of the city grid, reportedly on tribal family land. On April 29, 2015,
the social worker and two supervisors went to the residence and saw that the amount of
refuse in the yard appeared to have tripled since the social worker’s last visit in
December 2014. There was also a pungent odor of urine, feces, and refuse. The children
and Mother were wearing filthy clothing and the children had layers of embedded dirt on
them. During the visit, Mother was uncooperative, defensive, and hostile. She refused to
allow the social worker to enter the family’s trailer home.
       On May 6, 2015, the Agency filed an original petition alleging, pursuant to section
300, subdivision (b), that the parents had been unable to recognize and provide for the
children’s most basic needs, and that Mother was unable to put the best interests of the
children first, due to her anger and mental health issues. The petition noted that the social
worker and her supervisor had gone to the residence with law enforcement on April 30,
2015, where they observed the children to be filthy and covered with dirt. During the
April 30 visit to the property, Mother had “continuously berated her children in a harsh


                                              2
and controlling manner to follow her directions as she exhibited hostile, confrontational,
defiant, and angry behaviors in their presence.” The petition contained allegations that
Father had a history of drug dealing and methamphetamine use, as well as daily use of
marijuana, which impaired his ability to adequately care for and supervise the children.
       The petition further alleged that the parents had been unwilling and unable to
maintain a safe, sanitary living environment for the children. During the April 30 visit,
there had been an overwhelming stench and the social worker had seen piles of household
refuse, including rotting food, dirty diapers, and other garbage strewn throughout the
residence, an 18-foot travel trailer in which the family was living,. The trailer appeared
uninhabitable due to filth, wear and tear, and an unsanitary interior. The stove did not
appear to work and there was no running water in the trailer. There were two beds for six
people. Some of the children slept on the floor, on a pile of dirty clothes and blankets.
There was also a shoe box sized container filled with marijuana in a cupboard in the
living area of the trailer. Garbage was also strewn around the property and there was a
five by four foot pile of smoldering household refuse burning within around 10 feet of the
trailer. The petition stated that “the condition of the trailer and the property did not meet
minimum community (tribal) standards of cleanliness.”
       The petition also alleged, under subdivision (c) of section 300, that “[t]he ongoing
controlling and manipulative behaviors of the mother around her children, together with
the absence of healthy parenting by either parent,” placed the children at risk of physical
and emotional harm. During much of the three-and-one-half-hour visit on April 30,
2015, Mother continuously berated her children and kept her three youngest children
locked inside her van with her, with only the driver side window open approximately six
inches. The outside temperature was hot and the three children could be heard screaming
and crying. Seven-year-old N.B. later said he was upset because Mother had told the
children that the Agency was trying to take them away from her.
       In the report for the detention hearing, filed on May 7, 2015, the social worker
related that, in addition to the serious deterioration of the property and major concerns
regarding the ongoing neglect of the children, “there are also concerns over the mental


                                              3
health and anger issues of the mother that appear to severely impair her ability to provide
for the basic needs and healthy functioning of her children, with [C.B.] also requiring
mental health assessment.” The social worker also reported that the older children did
not appear to be regularly attending school.
       During the April 30, 2015 visit to the property, Father appeared to be under the
influence, and seemed paralyzed at times and uncertain about speaking to the social
worker unless instructed to do so by Mother. During that visit, it took hours to finally
reach agreement on an interim safety plan, due to Mother’s lack of cooperation and
volatile, erratic behavior. Under the plan, the children went to stay temporarily with their
paternal grandmother, although five days later the grandmother informed the social
worker that she could no longer care for the children because she was unable to manage
their behaviors. The children were therefore detained by the Agency.
       Regarding Native American status, Mother had told the social worker that she is
affiliated with the Yokayo Rancheria Tribe, which she said is “ ‘no longer federally
recognized.’ ” Father stated that he has no Native American heritage.
       In an addendum to the detention report, filed on May 11, 2015, the social worker
reported that a fifth child, 15 years old, had been in the care of his maternal grandmother
from the age of six or seven, and would remain in her care. The social worker also
reported that Mother and Father had both voluntarily agreed to submit to a random drug
test on May 7. Mother had preliminarily tested positive for Tetrahydrocannabinol (THC)
and methamphetamine, while Father never arrived at the Agency for testing.
       Mother testified at the May 12, 2015 detention hearing that she was upset when
the social worker and law enforcement came to her property on April 30, but she denied
yelling or barricading her children in her van. Since the children were removed, Mother
had taken steps to clean up the property, which is owned by the Yokayo Tribe of Indians,
including removing the trash from the trailer and adding another bed. The trash outside
the trailer had also been removed. There had always been a working generator and
access to running water on the property. There was also a port-a-potty. The children
bathed every other day at the nearby house of Mother’s cousin. The family was in the


                                               4
process of fixing up another house on their property, and Mother’s grandmother had said
that Mother and the youngest children could stay with her until the new house was
livable. Mother did not believe the condition of the property prior to the cleanup was
hazardous to the health or safety of the children. N.B. was not attending school due to a
medical issue with his eardrum and C.B. had been attending school “until an incident a
few months back.” Mother also testified that she and Father used marijuana.
       Social worker Jannee Dale also testified at the hearing. She and other Agency
staff had visited the family’s property on April 29, 2015, after receiving three referrals
about the condition of the property and incidents involving the oldest child, C.B., who
apparently was not attending school. Dale had arranged for tribal representative Lorraine
Laiwa to meet her at the property, but Laiwa had arrived early and left before Dale
arrived. Once there, Mother stepped between Dale and the trailer and refused to let her
see inside the trailer or talk to the children.
       The following day, the Agency obtained a warrant and Dale returned to the
property with police, who served the warrant. During the three-and-one-half-hour visit,
the children were primarily inside the van, but there were a few points when they were
not. Dale described the garbage, the fire, and the strong smell of garbage, smoke, and
burning plastic on the property. Mother was very upset and yelled a lot, and tried to call
Laiwa several times during the visit. Ultimately, the Agency and the parents worked out
a safety plan that allowed the paternal grandmother to care for the children, instead of the
Agency detaining them.
       There had been a total of 29 or 30 referrals for the property since 2008. The
Agency had previously worked with the family three times to attempt to clean up the
property. Dale believed the living conditions were hazardous in April 2015, because
there were toxic fumes from burning plastic; there was rotten food throughout the trailer;
there was a bottle of apple juice on the ground right next to bottles of Pinesol, within
reach of the children; and there were soiled diapers all over the property. There were also
concerns about the older children’s school attendance. Dale did not believe it was safe to
return the children to Mother, even assuming the property had been cleaned up. She


                                                  5
believed the family needed services, given that she had already worked with them for
three months the prior year, and yet the problems “continue[d] to happen over and over
again.” Dale was also concerned about mother’s emotional stability and wanted to
ascertain whether her issues could be addressed by a doctor or therapist. Another
concern involved the parents’ substance abuse.
       At the conclusion of the hearing, the juvenile court reaffirmed a prior temporary
detention order, due to a longstanding problem with the home not meeting minimum
community standards and the probability that conditions, even if they had improved
temporarily, might deteriorate again and present a risk to the children.
       In the jurisdiction report filed on June 2, 2015, the social worker reported that the
children were placed together in foster care. C.B. had had 25 unexcused absences from
school between January and March 23, 2015. C.B. was mimicking Mother’s behaviors in
her placement, including disregard for rules, bullying, and trying to get the other children
to follow her defiant, disrespectful behaviors. C.B. was receiving counseling services
and the other three children had been referred for medical, mental health, and educational
evaluations and services.
       Mother had tested positive for THC five times in May. The social worker had
referred the parents for substance abuse treatment and assessment and to “In-take support
services.” In May, the social worker had contacted Consolidated Tribal Health to inquire
about the availability of culturally appropriate parenting, hygiene, and nutrition classes,
but was informed no such classes were available. She was currently trying to obtain
resources and information for the parents from the outreach program coordinator at
Consolidated Tribal Health. The parents had weekly supervised visitation with the four
children removed from their care, as well as with their older son. The Agency had also
provided Mother and the maternal grandmother with gas vouchers for transportation to
visitation.
       On June 17, 2015, the Agency filed an amended petition with additional
allegations under section 300, subdivision (b)—that Mother had a current substance



                                              6
abuse problem—and subdivision (c)—that N.B. was exhibiting behaviors that indicated
emotional damage.
       At the June 18, 2015 jurisdictional hearing, both parents waived their rights, the
parties agreed to language for a second amended petition, and the court sustained the
allegations of the amended petition, which dismissed the allegations under section 300,
subdivision (b)(4) regarding the events observed at the family residence by Agency
personnel on April 30, 2015.
       At the conclusion of a June 25, 2015 hearing regarding an out of county placement
for the oldest daughter, C.B., the juvenile court stated that there had been an attempt to
place C.B. with the paternal grandmother, but, when the grandmother could not deal with
C.B.’s behaviors, she had been placed in a local facility where there were issues
regarding her interactions with other children and her self-injurious behavior. The court
found that the social worker had diligently looked for a closer facility for C.B. that would
provide a higher level of safety and supervision, but she was not able to find an
appropriate placement that was closer than the facility in which she had been placed,
which was a three-hour drive from her parents.
       In the disposition report filed on July 9, 2015, the social worker reported that
Mother had tested positive for THC on several occasions in June; on June 24, she had
obtained a medical marijuana recommendation. Also in June, Mother had participated in
an alcohol and drug assessment, and had been determined to be in need of treatment for
cannabis abuse. She was being referred to a culturally appropriate treatment program at
Consolidated Tribal Health.
       During a family team meeting on June 29, 2015, attended by Agency staff, Mother
and the maternal grandmother, case plans were developed for the family, which contained
service objectives for Mother related to meeting the children’s physical, emotional,
medical, and educational needs; maintaining a relationship with the children through
visitation; staying sober and showing the ability to live free from alcohol and drug
dependency; consistently, appropriately, and adequately parenting the children; and



                                             7
complying with medical or psychological treatment.3 Two days later, the social worker
met with both parents to go over and sign the case plans.
       The three younger children were not placed together in foster care due to the lack
of available foster homes. Mother had demonstrated that she was invested in having her
children returned to her, attending every visit, attending two family team meetings, and
making substantial progress in cleaning the property. She still needed much support,
however, because, as the social worker explained, “this is not merely a situation of a dirty
house. This is a situation with a multitude of neglect [sic] of these four children who are
too young to understand and have been segregated from society in mom’s effort to
protect her children from ‘outsiders.’ These children are seriously delayed in their
academic as well as emotional and social skills.”
       The Agency recommended continued out of home placement for the children and
reunification services for the parents.
       At the July 15, 2015 dispositional hearing, Lorraine Laiwa testified that she had
been the director and case manager for the Indian Child and Family Preservation, a
consortium of four tribes, for 20 years. She had been qualified as an Indian expert
witness in Mendocino County Juvenile Dependency Court 30 to 40 times. Laiwa had
worked with every tribe in Mendocino and Lake Counties as an ICWA worker, including
one year for the Big Valley Band of Pomo Indians (Big Valley Tribe). She was familiar
with the prevailing social and cultural standards of the Indian community with respect to
child rearing practices. Laiwa was asked to be an expert in this case by the Agency and
the Big Valley Tribe. She had reviewed the petition and all of the reports filed in this
case. She also had spoken about the case with the social worker, with Big Valley tribal
representatives, and with the parents.


       3
         Proposed services for Mother included visitation support, participation in a
substance abuse assessment and completion of all treatment recommendations, drug
testing, participation in culturally appropriate anger management and parenting education
programs, and participation in a psychological evaluation and completion of all treatment
recommendations.


                                             8
       Although the family’s property had been cleaned up when Laiwa was there a few
weeks earlier, she did not believe the children should be returned to the home until more
was done to make it a safe place for them. There was another property the tribe was
considering for the family, but the house there was old and needed a great deal of work.
Other issues that concerned Laiwa included Mother’s positive drug test for
methamphetamine. Father had said he was taking medication that “was making [him]
feel out of it,” and Laiwa believed there might be a connection between substance use,
prescription medication, and the condition of the home.
       Laiwa had learned that Mother and her oldest daughter, C.B., were eligible for Big
Valley tribal membership. She did not know about the eligibility of the rest of the
children.
       In the circumstances of the case, Laiwa believed that the parents’ continued
custody of their children at present was likely to result in serious emotional and physical
damage to the children. She had spoken with the tribal representative and one of the
council members, and they also believed it would be detrimental to return the children
“until things are fixed up for the family and a more permanent home for them [sic].”
Both Laiwa and the tribe believed it was in the children’s best interest to be placed in
foster care until a relative placement could be found or until another suitable placement,
approved by the tribe, was found.
       On cross-examination, Laiwa testified that she had met with Mother about four
times since becoming involved with the case, and Laiwa believed Mother “loves her
children very much.” She did not know what remedial services the Agency had offered
the family.
       Nancy Hernandez, ICWA coordinator for the Big Valley Tribe and social services
coordinator for four Rancherias, testified that, of the four children, C.B. was an enrolled
member of the Big Valley Tribe and the other three children—N.B., W.B., and K.B.—
were eligible members because Mother was an enrolled member.
       The social worker on the case, Jannee Dale, again testified that she had worked
with the family starting in September 2014, and, with the participation of Laiwa, had put


                                             9
in place a “risk reduction plan,” which was a written agreement between the Agency and
the parents that attempted to mitigate the risks to the children. Dale had inquired at that
time about tribal resources that might be available for the family but, because their tribe
is not federally recognized, there was no assistance available. She was able to get them
food and clothing vouchers. She had also worked with Mother about trying to request an
individualized education program for N.B., who was extremely sensitive to noise.
Subsequently, in March 2015, Agency staff went to the home and saw that it was in
worse condition than it had been initially.
       In April 2015, the Agency prepared a safety plan for the children, which involved
them staying with the paternal grandparents while the Agency worked with the family to
try to alleviate their problems, including the hazardous conditions at the residence,
Mother’s hostility and possible mental health issues, and Father’s being under the
influence. The purpose of the safety plan was to avoid having to detain the children
while dealing with the family’s issues. Shortly thereafter, the grandmother said she could
not take care of the children due to their behavioral issues, which were affecting her
health. The Agency therefore placed the children in foster care.
       Since the children were detained, Mother had been cooperating with the Agency in
terms of drug testing and participating in a substance abuse assessment.4 The Agency
had also begun discussions with her about treatment options. At the first of two family
team meetings in mid- to late May 2015, the social worker had talked with Mother about
getting a psychological evaluation to be able to properly tailor mental health services, and
had discussed with her the possibility of working with a particular family counselor
regarding anger management issues and another counselor regarding mental health
issues. At the second family team meeting on June 29, the social worker had discussed
with Mother the possibility of her obtaining anger management services. The purpose of
the family team meetings was to determine what services were needed and to develop the


       4
       After her first positive drug test for methamphetamine, Mother had tested
approximately a dozen times, and had not tested positive for methamphetamine again.


                                              10
case plan. Dale testified that she had planned to request an order for a psychological
assessment at the dispositional hearing, which is when the Agency typically made such a
request. On cross-examination, Dale said she was not aware that Mother had obtained a
mental health assessment on her own and was beginning mental health services at
Consolidated Tribal Health.
       Following Dale’s testimony, Laiwa was recalled as a witness. Based on her
experience, and after listening to the social worker’s testimony, Laiwa testified that she
believed the Agency had made active efforts to avoid having to remove the children from
their home. She also believed that the Agency’s efforts were consistent with customary
tribal efforts in child rearing because “they provided all kinds of services for the family
so that something like this would never occur. They were there to help them to look at
avenues of how to keep their families together. Because I understand, and I know, that
there were many, many referrals on this family before.”
       On cross-examination, Laiwa testified that she understood “active efforts” under
ICWA to mean “working with our different agencies that provided the services that
would be helpful to an Indian family.”
       Mother testified at the hearing that she was asking the court to return all four of
the children to live with her in the trailer, which now contained three beds and had been
cleaned up since the children were removed. The trash on the property had also been
removed. Mother planned to obtain a garbage bin to dispose of garbage daily.
       In May 2015, the Agency had given Mother a referral for a substance abuse
assessment and evaluation, which she completed in June. The evaluator had
recommended that she seek treatment for cannabis dependency and the social worker had
given her a referral to the “Intake Support” group; she had already attended three
meetings. The social worker had not yet given her any other referrals for services,
although Mother, on her own, had begun a mental health evaluation the previous day.
       At the conclusion of the evidence, Mother’s attorney argued that Laiwa, the ICWA
expert, “had no understanding of what active efforts are” and expressed doubt about how
much weight her testimony should be given. The court addressed counsel’s concerns,


                                             11
stating: “Ms. Laiwa is quite modest. I think I’ve seen her testify as an ICWA expert in
excess of 50 times. She is a respected tribal elder. She’s worked with virtually all the
tribes in our local area in Mendocino and Lake County. And while she may have used
words slightly different than the words in the statute, I know she understands what active
efforts are.” The court acknowledged that “she needed to have her memory jogged with
the voluminous information that is in these reports and the file, and she did testify twice.
Nevertheless, I did find her expert testimony on the salient reports’ points required by
ICWA to be, based on the evidence, to be credible and to satisfy the intent of the act.”
       The court then turned to the merits of the case and found that the parents had made
significant efforts toward cleaning up the residence, that they had made efforts to get
involved in services, and that they were “extraordinarily committed to their children.
They love their children.” The court nonetheless found that, in light of the state of the
home when the children were removed and the 25 referrals on the condition of the home
over several years and its repeated deterioration, there was a concern that the residence
would again deteriorate into a condition that was unsafe for the children. The court also
acknowledged that 13-year-old C.B. had been placed far away, in Sacramento, which was
not optimal. But the court believed that the Agency had made “extraordinary efforts to
try to find a closer placement” for her, including a relative placement. The court noted
that C.B. had exhibited “numerous and dangerous and difficult” behaviors since removal.
Based on various concerns, including the possibility that the parents were using C.B. to
make hospital emergency room visits as part of drug-seeking behavior, the court was
concerned about the parents’ current ability to safely care for C.B. as well as the other
children.
       The court found that reasonable efforts had been made to eliminate the need to
remove the children from the home and further found, by clear and convincing evidence,
that there was a substantial danger to the children’s physical and mental health and safety
to return them to the home, and “that active efforts were made to provide remedial
services designed to prevent the breakup of the Indian family, and these efforts proved
unsuccessful.” The active efforts included a risk reduction plan and a safety plan prior to


                                             12
detention, which Laiwa believed were the types of services and efforts she would expect
to see prior to removal of the children from the home. The Agency had also consulted
with and complied with the wishes of the tribe regarding the children’s placement. The
court ordered the Agency to continue assessing the viability of a relative placement and
to attempt to find a placement closer to home for C.B. The court also ordered
reunification services for the parents.
       On July 23, 2015, Mother filed notices of appeal as to each of the four children.
                                          DISCUSSION
       Mother contends the juvenile court erred when it found that active efforts were
made to provide remedial services and rehabilitative programs designed to prevent the
breakup of this Indian family, pursuant to ICWA.
       “California courts have been inconsistent in the standards they apply to review a
finding that active efforts had been made to provide services and programs designed to
prevent the breakup of an Indian family.” (C.F. v. Superior Court (2014) 230
Cal.App.4th 227, 238-239 (C.F.).) We agree with the conclusion of Division Four of this
District in C.F. that the substantial evidence test is the appropriate standard of review,
especially where, as here, a juvenile court’s finding on active efforts involves credibility
determinations. (Id. at p. 239.)5
       “Congress passed the ICWA in 1978 ‘to promote the stability and security of
Indian tribes and families by establishing minimum standards for removal of Indian
children from their families and placement of such children “in foster or adoptive homes
which will reflect the unique values of Indian culture . . . .” ’ [Citing, inter alia, 25
U.S.C. § 1902.] [¶] The ICWA’s procedural and substantive requirements must be
followed in involuntary child custody proceedings when an ‘Indian child’ is involved.


       5
         Moreover, even if the standard of review for whether the services provided
constituted active efforts was de novo, as Mother argues it should be, we would reach the
same result. (See, e.g., In re K.B. (2009) 173 Cal.App.4th 1275, 1286 [citing Alaska case
law in concluding that, when services provided could be found in record, active efforts
determination would be a mixed question of law and fact, reviewed independently].)


                                               13
An ‘Indian child’ is defined by the ICWA 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).)” (In re Jeffrey A. (2002) 103 Cal.App.4th 1103, 1106.) In this case, it is
undisputed that the four children are Indian children for purposes of ICWA.
       Section 361.7 addresses standards for involuntary foster care placement of or
termination of parental rights over an Indian child, requiring a child welfare agency to
provide evidence “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.” (§ 361.7, subd. (a).) “What constitutes active
efforts shall be assessed on a case-by-case basis,” and the efforts must “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).) In
addition, under subdivision (c) of section 361.7, “[n]o 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, . . . that the continued custody of the child by the parent . . . is likely to result in
serious emotional or physical damage to the child.”6
       Neither ICWA nor section 361.7 provides a definition of active efforts. (C.F.,
supra, 230 Cal.App.4th at p. 240; see 25 U.S.C. § 1912(d); cf. In re K.B., supra, 173
Cal.App.4th at p. 1287 [setting forth “a useful guideline” for distinguishing passive



       6
         Section 361.7, enacted in 2006, tracks the language of title 25 United States
Code section 1912(d), which is part of ICWA and provides: “Any party seeking to effect
a foster care placement of, or termination of parental rights to, an Indian child under State
law shall satisfy the court that active efforts have been made to provide remedial services
and rehabilitative programs designed to prevent the breakup of the Indian family and that
these efforts have proved unsuccessful.”


                                                14
efforts from active efforts: “ ‘Passive efforts are where a plan is drawn up and the client
must develop his or her own resources towards bringing it to fruition. Active efforts . . .
[are] where the state caseworker takes the client through the steps of the plan rather than
requiring that the plan be performed on its own’ ”].) However, recently updated
guidelines issued by the Bureau of Indian Affairs (BIA), which were intended to provide
guidance to state courts and child welfare agencies implementing ICWA’s provisions,
explain that active efforts “are intended primarily to maintain and reunite an Indian child
with his or her family or tribal community and constitute more than [the] reasonable
efforts” required in most dependency cases. (Department of the Interior, BIA, Guidelines
for State Courts; Indian Child Custody Proceedings, 80 Fed. Reg. 10146, 10150, ¶ A.2,
(Feb. 25, 2015) (Guidelines).)7


       7
         The Guidelines contain examples of active efforts, including: “(1) Engaging the
Indian child, the Indian child’s parents, the Indian child’s extended family members, and
the Indian child’s custodian(s); [¶] (2) Taking steps necessary to keep siblings together;
[¶] (3) Identifying appropriate services and helping the parents to overcome barriers,
including actively assisting the parents in obtaining such services; [¶] (4) Identifying,
notifying, and inviting representatives of the Indian child’s tribe to participate; [¶] (5)
Conducting or causing to be conducted a diligent search for the Indian child’s extended
family members for assistance and possible placement; [¶] (6) Taking into account the
Indian child’s tribe’s prevailing social and cultural conditions and way of life, and
requesting the assistance of representatives designated by the Indian child’s tribe with
substantial knowledge of the prevailing social and cultural standards; [¶] (7) Offering
and employing all available and culturally appropriate family preservation strategies; [¶]
(8) Completing a comprehensive assessment of the circumstances of the Indian child’s
family, with a focus on safe reunification as the most desirable goal; [¶] (9) Notifying
and consulting with extended family members of the Indian child to provide family
structure and support for the Indian child, to assure cultural connections, and to serve as
placement resources for the Indian child; [¶] (10) Making arrangements to provide
family interaction in the most natural setting that can ensure the Indian child’s safety
during any necessary removal; [¶] (11) Identifying community resources including
housing, financial, transportation, mental health, substance abuse, and peer support
services and actively assisting the Indian child’s parents or extended family in utilizing
and accessing those resources; [¶] (12) Monitoring progress and participation in services;
[¶] (13) Providing consideration of alternative ways of addressing the needs of the Indian
child’s parents and extended family, if services do not exist or if existing services are not
available; [¶] (14) Supporting regular visits and trial home visits of the Indian child

                                             15
        The updated Guidelines clarify that the active efforts requirement “begins from the
moment the possibility arises that an agency case or investigation may result in the need
for an Indian child to be placed outside the custody of either parent . . . in order to prevent
removal.” (Guidelines at p. 10152, ¶ B.1(a).) The party attempting to place an Indian
child in foster care must also “demonstrate to the court that prior to, and until the
commencement of, the proceeding, active efforts have been made to avoid the need to
remove the Indian child from his or her parents or Indian custodians and show that those
efforts have been unsuccessful.” (Guidelines at p. 10156, ¶ D.2(a).)
        In the present case, Mother claims the Agency failed to make active efforts,
arguing in particular that the social worker “should have immediately referred Mother to
either anger management or mental health assessments,” but did not do so. We agree
with the Agency that there is substantial evidence to support the juvenile court’s finding
that active efforts were made to prevent the breakup of this family. (See § 361.7, subd.
(a).)
        This evidence of active efforts includes the fact that the Agency began working
with the family in September 2014, developing a risk reduction plan to prevent removal.
Then, in April 2015, when the Agency found the residence in worse condition than ever,
it worked with the parents to create a safety plan to avoid detention of the children,
placing the children with their paternal grandparents while working on the family’s
problems. These were the types of efforts and services ICWA expert Lorraine Laiwa said
she would expect to see prior to removal of the children from the home.
        The Agency only detained the children after the grandparents indicated they could
no longer care for the children. The Agency had also consulted with the tribe regarding
the children’s placement, and both Laiwa and the tribe believed it was in the children’s




during any period of removal, consistent with the need to ensure the safety of the child;
and [¶] (15) Providing post-reunification services and monitoring.” (Guidelines at
p. 10150, ¶ A.2.)


                                              16
best interest to be placed in foster care until a relative placement could be found or until
another suitable placement, approved by the tribe, was identified.
       Moreover, it was only during the April 30, 2015 visit to the residence that the
Agency became aware of Mother’s potential drug, mental health, and anger issues. Since
detention, the Agency had worked with Mother to obtain a substance abuse assessment
and drug testing, and had begun discussing treatment options with her; it had also
referred her to “In-take support services.” In addition, the Agency had arranged for two
family team meetings, in May and June, in order to determine what services were needed
and to develop a case plan. At the first meeting, the social worker had talked to Mother
about getting a psychological evaluation, to be able to tailor mental health services to her
needs, and also about the possibility of working with one particular Native American
counselor regarding anger management issues and another regarding mental health
issues. Dale planned to request an order for a psychological evaluation at the
dispositional hearing. At the second family team meeting, the social worker had
discussed with Mother the possibility of her obtaining anger management services.
       In addition, in May, the social worker had contacted Consolidated Tribal Health
regarding the availability of culturally appropriate parenting, hygiene, and nutrition
classes, but was told that no such classes were available. Both the social worker and
Mother testified that Mother had been referred to the Intake Support group, which
apparently involved dealing with her anger and denial issues related to Agency
intervention, and Mother testified that she had already attended three meetings. The
social worker was presently trying to obtain resources and information for the parents
from the outreach program coordinator at Consolidated Tribal Health. Also in May, C.B.
had begun receiving counseling services and the other children had been referred for
medical, mental health, and educational evaluations and services. The parents had
regular supervised visitation with the children and the Agency had provided Mother and
the maternal grandmother—who was caring for the oldest son—with gas vouchers for
transportation to visitation.



                                             17
       Mother argues that the Agency should have provided mental health and anger
management services earlier, before the children were removed from the home. It must
be remembered, however, that Mother’s possible mental health, anger, and substance
abuse issues did not even come to light until the visit to the home at the end of April.
After that, as previously discussed, the Agency did arrange for a substance abuse
assessment and testing, began looking for culturally appropriate services, and held two
family team meetings to begin to formulate a case plan, which would take effect
following the court’s order of reunification services at the dispositional hearing.8
       Mother compares the facts of this case with In re K.B., supra, 173 Cal.App.4th
1275 in which the social services agency had provided the mother with numerous
services to assist her in reunifying with her children and the appellate court had found
that the agency had made active efforts when it “provided the mother with the resources
necessary to achieve the goals of her case plan.” (Id. at p. 1287.) In K.B., however, the
active efforts determination was made following termination of parental rights, after
many months of reunification services. Here, on the other hand, only two months had
elapsed between detention and the dispositional hearing, and the Agency had been
actively working with Mother to develop a case plan and arrange for services relevant to
Mother’s substance abuse, mental health, and anger issues. Hence, In re K.B. and the
present case are not comparable.
       Finally, ICWA expert Laiwa believed the Agency had made active efforts to avoid
having to remove the children from their home and that the Agency’s efforts were
consistent with customary tribal efforts in child rearing. Although Mother asserts that we
should not give much weight to Laiwa’s testimony, arguing that she did not understand
the meaning of active efforts under ICWA, the court found otherwise. The court stated
that Laiwa is a respected tribal elder who had worked with virtually all of the tribes in the



       8
        Mother’s proposed case plan included, inter alia, participating in a psychological
evaluation and following all treatment recommendations, and participating in culturally
appropriate anger management and parenting education programs.


                                             18
area; the court had seen her testify as an ICWA expert more than 50 times. While
acknowledging that she may not have used the exact words of the statute and did need to
have her memory jogged “with the voluminous information” in the case files, the court
found that her testimony was credible and satisfied the intent of ICWA.
       In light of all of the evidence in the record of the Agency’s efforts, both before and
after detention, as well as Laiwa’s expert opinion that the Agency had satisfied ICWA’s
active efforts requirement, we conclude substantial evidence supports the juvenile court’s
finding that the Agency made active efforts in the circumstances of this case “to provide
remedial services and rehabilitative programs designed to prevent the breakup of the
Indian family,” but that these efforts had been unsuccessful. (§ 361.7, subd. (a); see C.F.,
supra, 230 Cal.App.4th at p. 239; see also 25 U.S.C. § 1912(d); Guidelines, ¶¶ A.2;
B.1(a); D.2(a).)
                                     DISPOSITION
       The orders appealed from are affirmed.



                                                  _________________________
                                                  Kline, P.J.


We concur:


_________________________
Stewart, J.


_________________________
Miller, J.




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