J.M. v. Superior Court CA1/1

Filed 7/2/21 J.M. v. Superior Court CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 ONE

J.M., et al.,
Petitioner,
A162235
v.
THE SUPERIOR COURT OF (Marin County
MARIN COUNTY, Super. Ct. No. JV26977A)
Respondent;
MARIN COUNTY HEALTH AND
HUMAN SERVICES,
Real Party in Interest.

In these juvenile writ proceedings, J.M. (father) and H.P. (mother) seek
extraordinary relief from the juvenile court order setting a permanency
planning hearing for their son, E.M., pursuant to section 366.26 of the
Welfare and Institutions Code.1 The parents contend there was insufficient
evidence to support the juvenile court’s findings that the Marin County
Department of Children and Family Services (Department) provided
reasonable services and made active efforts to prevent the breakup of their
Indian family as required by the Indian Child Welfare Act of 1978 (25 U.S.C.
§ 1901 et seq.; ICWA). Seeing no error, we deny the petitions.

All statutory references are to the Welfare and Institutions Code
1

unless otherwise specified.
 I. BACKGROUND
A. Investigation and Detention
E.M. first came to the attention of the Department at the age of two,
after a report alleging the minor was seen by hotel staff on June 8,
2020wandering alone in a parking lot and near high traffic areas of Corte
Madera. Father later admitted the minor left the hotel room while he was
sleeping. On June 12, E.M. was again found wandering around the hotel
parking lot in Corte Madera, this time late at night, alone, naked, and in
distress. Mother was discovered passed out in a hotel room containing
heroin, cocaine, needles, and other drug paraphernalia within reach of the
minor. Father was at work but returned to take custody of E.M. after mother
was arrested on child endangerment and possession charges.
Father, an electrician at a local automobile manufacturer, told the
social worker he was unaware mother was using drugs and had not seen any
drug paraphernalia around the hotel room. Father explained he had met
mother about four years ago while working in Alaska. After he relocated to
Hawaii for a job, mother joined him. Several months later, father discovered
that mother was using methamphetamine. Mother participated in both
inpatient and outpatient drug treatment for six months and graduated from
the program about three years ago. Father believed she had remained sober
since then. E.M. was born approximately a year after mother completed
treatment.
The family moved to Oakland in early 2020 after father obtained
employment with a nonprofit organization. Father lost his job when the
nonprofit closed in March 2020 due to the COVID-19 pandemic, and he was
unemployed until May 2020 when he was hired into his current position
working the night shift from 10:00 p.m. to 6:00 a.m. The family’s finances

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deteriorated during this stressful period, and they found housing through
Project Roomkey, a state program that supports people with housing
instability caused by the pandemic. Father denied any history or current use
of drugs and stated he would do anything to keep E.M. safe.2
Mother spoke with the social worker by telephone and stated that
father had asked her to leave the family home and that she understood she
should not care for E.M. alone. Mother reported she had been sober for the
“ ‘past couple of years.’ ” The social worker offered to help her get into a
substance abuse treatment program. On June 15, 2020, the social worker
spoke with father and a family friend who had agreed to watch E.M. while
father was working. On June 19, father confirmed that mother was living
outside the home and his friend was watching E.M. at night.
Both parents indicated they would sign a written safety plan prepared
by the social worker to ensure that E.M. was always supervised by a safe and
sober caregiver. Although the social worker e-mailed the plan to the parents
on June 12 as agreed, they did not respond to the e-mail or return a signed
agreement. Mother subsequently failed to respond to the social worker’s
numerous phone calls. Father agreed to participate in a second in-person
safety planning meeting scheduled for June 23, but never returned the social
worker’s calls or voicemails when she called to confirm.
The Department received another report on June 25, 2020 that E.M.
was found on multiple occasions wandering unsupervised in a different hotel
parking lot in Newark. A hotel guest had observed E.M. locked alone in a
parked car for approximately 30 minutes, and hotel staff had stopped the
minor from running into a busy intersection. After law enforcement was

2 As described below, portions of father’s account are contradicted by
other reports later obtained by the Department.

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called, father stated he was sleeping during these incidents and thought E.M.
was sleeping with him. Father checked out of the hotel soon after speaking
with the police. From June 25 to June 29, father refused to meet with the
social worker or produce the minor, both parents failed to respond to the
social worker’s repeated phone calls and texts, and the whereabouts of the
family were unknown. The social worker attempted to contact the family
friend who had been helping care for E.M., but the number had been
disconnected.
On June 26, 2020, the Department spoke with the maternal
grandmother and learned that mother had a long history of substance abuse.
Mother’s two oldest children came to the attention of child welfare and tribal
authorities in Alaska as toddlers due to mother’s substance abuse and neglect
and were placed in the care of the maternal grandmother. Mother’s third
child was also not in mother’s care due to substance abuse and neglect and
resided with his paternal grandparents.
According to the maternal grandmother, E.M. had been detained at
birth by Hawaii child welfare services after mother tested positive for a
controlled substance during delivery. The minor was in foster care for
several months before mother entered a family residential substance abuse
treatment center in December 2017. The maternal grandmother stated that
father also had a history of substance abuse and dealt drugs in both Hawaii
and Alaska. A women’s shelter in Hawaii eventually flew mother and E.M. to
Alaska to separate them from father, but he found them and they all
relocated to California together. Mother reportedly relapsed in August 2019.
The maternal grandmother expressed interest in placement of E.M. and told
the social worker to contact the Orutsararmiut Native Counsel (ONC) so that
the tribe could coordinate the minor’s move to Alaska if he was detained.

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 The Department contacted Marie Dorris, the social services director for
the ONC, on that same day to report E.M.’s possible detention. Ms. Dorris
stated that mother was an enrolled citizen of the ONC and that the minor,
while not registered, was eligible for membership. This information was
confirmed by the maternal grandparents, the maternal grandfather being an
ONC council member. On June 29, the Department spoke with Ms. Dorris
and another ONC representative, who agreed with E.M.’s detention and
participation in the court process. Although the tribe intended to take over
jurisdiction of the case, they could not immediately travel from Alaska to
transport the minor due to the COVID-19 pandemic. In the meantime, the
social worker offered to seek assistance from the Federated Indians of Graton
Rancheria for help in locating an ICWA-compliant home as Marin County is
in Graton Rancheria’s ancestral territory. On that same day, the social
worker provided father with a list of Native American services in the area,
including Tribal TANF of Sonoma and Marin and Sonoma County Indian
Health Services. A similar letter listing an assortment of Native American
resources was provided to mother several days later.
E.M. was finally located on June 29, 2020, after extensive efforts by the
social worker. Given the parents’ evasive behaviors and lack of
responsiveness with the Department, as well as the ongoing concern that the
minor was at imminent risk of serious physical harm while in their care,
E.M. was placed into protective custody. On July 1, the Department filed a
dependency petition, alleging that E.M. was a minor described by
subdivisions (b)(1) and (j) of section 300. The social worker facilitated a
virtual visit between E.M. and his parents that same day.
The minor was formally detained by the juvenile court on July 7, 2020.
At the detention hearing, father was elevated to presumed father and the

5
court ordered services for the parents, including drug testing, substance
abuse treatment, and parenting education. Ms. Dorris from the ONC
addressed the court regarding efforts to identify a relative placement, and the
juvenile court found there was reason to know E.M. was an Indian child.
Based on its review of the record, the juvenile court found that the
Department had made active efforts to provide remedial services and
rehabilitative programs designed to prevent the breakup of the Indian family,
but that those efforts were unsuccessful.
B. Jurisdiction and Disposition
In advance of the combined jurisdictional and dispositional hearing, the
Department filed reports informing the court that E.M. was residing in an
ICWA-compliant foster home. Mother had reportedly called the tribal
enrollment office to enroll E.M. as a member of the tribe and was awaiting a
response. The Department was in frequent communication with Ms. Dorris
from the ONC. It was exploring placement with an aunt in Alaska, which the
ONC approved. In addition, the Department was attempting to facilitate
phone/video communication between E.M. and his maternal grandmother,
aunts, and half siblings in Alaska with the help of the foster family and the
ONC.
The Department had also confirmed with child welfare services in
Hawaii that E.M. was taken into protective custody due to concerns
regarding mother’s long history of addiction and her positive test for
methamphetamine when the minor was born. Family reunification services
had been provided for both parents, including parenting education, drug
testing, and substance abuse assessment and treatment. Mother entered and
completed treatment, E.M. was returned in January 2018, and the case was
closed in October 2018 after a period of family maintenance services. As for

6
mother’s three older children, there were seven referrals to child welfare
services in Alaska dating back to 2010, all related to alleged neglect due to
substance abuse. Allegations included neglect, mother’s abuse of OxyContin
and heroin, repeated public intoxication, and domestic violence.
Father reportedly had a criminal history in California dating back to
1986, including approximately 12 convictions from 9 separate counties.
Father’s most recent conviction was in 2012 for felony possession of a
controlled substance. Criminal histories were not obtained from other states
for either parent.
After numerous failed attempts to contact the parents by phone, text
message, and e-mail, the social worker spoke with them on July 27, 2020 via
video chat. Mother indicated she had been sober since the day of her arrest
and was using methadone to help with withdrawal. She was open to entering
residential treatment if recommended by the Department. Father
emphasized that they would do anything they needed to do to get the minor
back. The social worker noted that the parents’ lack of consistent
communication with the Department made it difficult to fully assess the
family’s needs but that it would continue to make active efforts to refer
mother to “services that are culturally relevant, taking into account her
Native American heritage.” Indeed, although mother could have been
bypassed for services given her long history of drug use and resistance to
prior treatment, the Department recommended that services be provided to
both parents in an attempt to preserve the Indian family. This was also the
ONC’s preference.
The Department, after input from both parents and the tribe,
recommended a case plan for mother establishing goals of building a support
network, staying free of illegal drugs, and showing her ability to live free of

7
drug dependency. The case plan called for Mother to submit to weekly drug
testing, participate in weekly visitation with E.M., and complete a residential
drug treatment program and any recommended follow-up care. The
Department, in turn, was charged with assisting mother in accessing a drug
treatment program that was culturally relevant to her Native American
heritage and otherwise supporting her in her service objectives. As for
father, the Department recommended a case plan with goals of consistently
and appropriately parenting E.M. and building a support system to help
ensure the minor’s safety at all times. Father was required to participate in
virtual parenting classes, visit weekly with the minor, and drug test weekly.
The Department additionally filed an expert declaration from Percy
Tejada, which was provided by stipulation of the parties in lieu of oral
testimony. Mr. Tejada was unable to reach the parents but did speak with
Ms. Dorris at the ONC and several maternal relatives. Having reviewed the
case, he opined that nothing in the removal, which was for E.M.’s protection,
transgressed “traditional and cultural community standards.” He further
opined that no other services could have been provided to prevent removal
and that the Department was providing continued active efforts as required
by the ICWA. Finally, he concluded that return of the minor to his parents
would cause the child to suffer serious emotional and/or physical damage.
The jurisdictional and dispositional hearing commenced on August 4,
2020. The juvenile court granted the ONC’s formal request to intervene. The
matter was then continued to August 18 to give the Department more time to
receive relevant documents from Alaska. A first amended petition was filed
on August 18, 2020, which clarified the allegation under subdivision (j) of
section 300 to state that mother’s two older children had been voluntarily
placed with the maternal grandmother in 2012 after child welfare services in

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Alaska had substantiated allegations of substance abuse and domestic
violence against mother in 2010 and 2012.
At the continued hearing on August 18, 2020, Ms. Dorris appeared and
stated that the ONC agreed with the Department’s recommendations and
court findings. Both parents submitted on the amended petition and the
juvenile court sustained the allegations, finding E.M. to be a minor described
by sections (b) and (j) of section 300. The juvenile court found that the
Department had provided affirmative, active, thorough, and timely efforts to
prevent the breakup of the Indian family, but that the efforts were
unsuccessful. It also found by clear and convincing evidence that continued
custody of E.M. by the parents was likely to cause serious emotional or
physical damage to the child.
E.M. was adjudged a juvenile court dependent and formally removed
from the custody of both parents.3 Although the juvenile court found by clear
and convincing evidence that mother was a person described by
subdivision (b)(13) of section 361.5, it ordered reunification services for both
parents as recommended by the Department, concluding that reunification
would be in the best interests of the child. A court appointed special advocate
(CASA) was appointed for E.M. The parents were advised that, given E.M.’s
young age, if they failed to participate regularly and make substantive
progress in court-ordered treatment, services might be terminated at the six-

3 Both parents ultimately submitted to disposition. Although father
had objected to the drug testing order at the August 4 hearing, the juvenile
court expressed its tentative view that there was sufficient information in the
reports to justify drug testing for father. The social worker reported she had
offered to refer father to testing closer to his work, but he had stated he
would come to San Rafael. She stated she would be happy to revisit the issue
with him. At the continued hearing, father indicated he would submit and
try to find drug testing closer to work.

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month mark. The court admonished both parents that if they wanted to
make progress they needed to respond to calls, make appointments, and “not
make everybody feel you are hiding something.” No appeal was taken by
either parent.
C. Contested Six-month Review
The Department filed a six-month review report in February 2021,
recommending that reunification services be terminated for both parents.
Although the parents visited consistently with E.M. and the visits generally
went well, neither parent had made progress on their reunification plan. The
Department had been in ongoing contact with Ms. Dorris, the tribal
representative, throughout the reporting period. The tribe had approved
placement with a maternal aunt in Alaska and a permanent plan of tribal
customary adoption or legal guardianship should reunification efforts fail.
Of great concern was the parents’ lack of progress with their case plans
and failure to respond to the Department’s outreach. The social worker only
met with mother and father two times over the six-month period, on
August 26, and September 29, 2020. The parents also attended the first
virtual child and family team (CFT) meeting on October 12, but missed the
remaining four CFT meetings. The social worker spoke with father about his
case plan progress on October 30. Despite numerous other attempts by the
social worker to reach the parents by phone or text message, the parents
were noncommunicative. When the social worker managed to reach father on
two occasions in January 2021, he put her off and then did not follow through
with the planned contact. The maternal grandmother and aunts also
reported having difficulty reaching the parents, and Ms. Dorris, the tribal
representative, made several attempts to contact mother without success.
While father did not return the social worker’s calls and messages, he kept

10
consistent contact with Department visitation staff regarding his visitation
with E.M.
The Department provided mother with a hard copy of her case plan on
August 26, 2020. On September 16, the social worker hand delivered a letter
to mother which described the case plan requirements and provided referrals
to three treatment programs appropriate for clients with Native American
Heritage. Copies of the letter were sent to the tribe and to mother’s attorney.
When mother expressed interest in an Oakland recovery program, the social
worker obtained a release to speak with them. The social worker learned
that mother’s assessment was old, and she would have to complete a new
assessment with the program in order to be admitted and conveyed this
information to mother. At the September 29, 2020 meeting, the social worker
explained to mother the steps she would need to take to enter the program,
including transferring her Medi-Cal to Alameda County, and mother said she
would do so. When mother subsequently reported difficulty transferring her
Medi-Cal, the social worker contacted a Marin County eligibility worker,
provided mother’s Oakland address, requested the Medi-Cal transfer, and
told mother to follow up, which she agreed to do. At the October 12, 2020
CFT meeting, mother stated she was not yet signed up for treatment. The
social worker encouraged mother to contact the Alameda County Medi-Cal
office and agreed to follow up with treatment programs on mother’s behalf.
After their meeting, mother did not respond to the social worker’s phone
calls, voicemails, or text messages.4

4
At the contested six-month hearing on March 9, 2021, mother testified
that she was prepared to enter drug treatment in a program with an
available bed but needed to undergo a COVID-19 test and a TB (tuberculosis)
test prior to her admission.

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 As for drug testing, mother reported she was testing at her methadone
clinic and did not want to drug test at two separate locations. Mother agreed
to sign a release of information from her clinic but could not recall the clinic’s
name. The social worker attempted multiple times to obtain the name of the
methadone clinic from mother, to no avail. By the September 29, 2020
meeting, mother still could not provide the name and admitted she had
ceased treatment there the previous week. The social worker then explained
to mother how to drug test through Quest Diagnostics and ensured that
mother had the appropriate paperwork. Although the Department requested
that mother drug test on multiple days from October 2020 through January
2021, it did not receive the results of any drug test.
Father was also provided with a copy of his case plan. A letter hand
delivered on September 16, 2020 provided him with information on parenting
classes and explained the process for drug testing. The Department also
discussed the case plan with father at meetings on September 29 and
October 12. The Department sent text messages to father requesting that he
drug test on 16 different occasions during the reporting period. He tested
only seven times, and only twice on the actual day requested by the
Department. Three of father’s drug tests were negative for all substances,
and four were negative for alcohol but did not provide results for other
substances. At the contested review hearing, the social worker testified that
when father stated it was difficult for him to test on days he had visits with
E.M., she no longer requested testing on visit days. She also set up the
testing through Quest Diagnostics to give father more flexibility to test at
different locations.
The Department referred father to virtual parenting classes on
multiple occasions. Despite several calls, voicemails, and text messages, the

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Department received no word that father ever attended the classes. At the
contested hearing, the social worker testified that father never expressed
concern about the timing of the parenting class or indicated he could not
attend, although she explained that she could refer him to something else.
Father identified his brother and sister-in-law as members of his support
network. At father’s request, the Department invited them and a Korean
translator to CFT meetings in November, December, and January, but
neither father nor his family members attended.
At the conclusion of the contested hearing, mother’s attorney argued
that the Department had undertaken only passive efforts to help the parents
and requested that reunification services be continued. Father’s counsel
made similar arguments and also claimed that father had substantially
complied with services. Minor’s counsel argued in favor of the Department’s
recommendation. A newly appointed tribal representative, Ms. Peters, made
a statement. After mentioning some additional services mother could
participate in, she suggested that the parents be given additional
reunification time. The juvenile court found that the Department had
provided reasonable services and active efforts, but that the parents had
failed to address the issues that led to E.M.’s removal. The court also found
that it was unlikely the minor would be returned home in the next six
months. The court therefore adopted the proposed orders terminating
reunification services and setting the matter for a hearing pursuant to
section 366.26 so that a permanent out-of-home plan could be developed for
the minor. These timely petitions followed.

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 II. DISCUSSION
A. Dependency Framework
When a dependent child is removed from parental custody, “the
juvenile court ordinarily must order child welfare services for the minor and
the parent for the purpose of facilitating reunification of the family. (§ 361.5,
subd. (a).) For a child under three years of age at the time of removal, as
[E.M.] was, reunification services are presumptively limited to six months.”
(Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 843 (Tonya M.).) This is
because the “ ‘ “unique developmental needs of infants and toddlers” ’
[citation] justifies a greater emphasis on establishing permanency and
stability earlier in the dependency process.” (M.V. v. Superior Court (2008)
167 Cal.App.4th 166, 175.)
As our high court has explained, for the parent of a child under three at
the time of removal, the statutory scheme for providing reunification services
establishes “three distinct periods and three corresponding distinct escalating
standards.” (Tonya M., supra, 42 Cal.4th at p. 845.) In the first period—a
phase from the jurisdictional hearing to the six-month review hearing where
services are “presumed”—“services are afforded essentially as a matter of
right.” (Ibid.) In the second period—a phase from the six-month review
hearing to the 12-month review hearing where services are “possible”—“a
heightened showing is required to continue services.” (Ibid.) Specifically, a
juvenile court must continue the case to the 12-month hearing only if it finds
that “there is a substantial probability that the child . . . may be returned to
his or her parent . . . within six months or that reasonable services have not
been provided.” (§ 366.21, subd. (e)(3).) In the third period—a phase from
the 12-month review hearing to the 18-month review hearing where services
are “disfavored”—services can be continued only under limited circumstances

14
and only if the juvenile court is able to make a number of very specific
findings presaging reunification or if it finds that reasonable services have
not been provided. (Tonya M., at p. 845; see § 366.21, subd. (g)(1)(A)–(C).)
Here, we are concerned with the findings made by the juvenile court at
the March 2021 six-month review. If, at such a hearing, the court finds “by
clear and convincing evidence that the parent failed to participate regularly
and make substantive progress in a court-ordered treatment plan,” the court
has the discretion to schedule a permanency planning hearing for young
minors such as E.M. (§ 366.21, subd. (e)(3).) As stated above, a juvenile
court must continue a case to the 12-month review if it finds that “there is a
substantial probability that the child . . . may be returned to his or her parent
. . . within six months or that reasonable services have not been provided.” (§
366.21, subd. (e)(3).) Moreover, when an Indian child is involved, a party
seeking possible termination of parental rights must also “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.” (§ 361.7, subd. (a).) The
juvenile court’s reasonable services and active efforts findings must be
supported by clear and convincing evidence. (Tracy J. v. Superior Court
(2012) 202 Cal.App.4th 1415, 1424; In re Michael G. (1998) 63 Cal.App.4th
700, 712.)
At the six-month hearing in this case, the juvenile court found by clear
and convincing evidence that reasonable services had been provided and
concluded that active efforts had been made but found that the parents failed
to participate regularly and make substantive progress in court-ordered

15
treatment.5 The court additionally found that there was no substantial
probability that E.M. might be returned to parental custody within six
months. The court therefore terminated reunification services and set the
matter for a permanency planning hearing. Both parents challenge the
juvenile court’s reasonable services and active efforts findings by these
petitions for extraordinary writ.
B. Reasonable Reunification Services and Active Efforts
Reunification services, which play a critical role in dependency
proceedings, must be tailored to the particular needs of the family. (§ 361.5;
In re Alanna A. (2005) 135 Cal.App.4th 555, 563; David B. v. Superior Court
(2004) 123 Cal.App.4th 768, 793.) We evaluate the reasonableness of the
Department’s reunification efforts according to the circumstances of each
case. (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164.) To
support a finding that reasonable services were offered or provided, “the
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 Riva M. (1991) 235 Cal.App.3d
403, 414 (Riva M.).) “The standard is not whether the services provided were
the best that might be provided in an ideal world, but whether the services

5 Although the juvenile court did not clearly articulate the clear and
convincing standard when finding that active efforts had been made, we
presume the court correctly applied the law absent any evidence to the
contrary. (See In re A.C. (2017) 13 Cal.App.5th 661, 673 (A.C.) [“All
intendments and presumptions are made to support a trial court’s judgments,
orders, rulings, and other actions where the record is silent, and it is the
appellant’s burden on appeal to show those actions are erroneous.”].)

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were reasonable under the circumstances.” (In re Misako R. (1991)
2 Cal.App.4th 538, 547.)
We are also guided by the requirements of the ICWA. The ICWA
implements a national policy to protect the best interests of Indian children
and promote the stability and security of Indian tribes and families by
establishing minimum federal standards for the removal of Indian children
from their homes and the placement of these children in foster or adoptive
homes which take account of the unique values of Indian culture. (In re
Isaiah W. (2016) 1 Cal.5th 1, 7–8, citing 25 U.S.C. § 1902.) As stated above,
under the ICWA and corresponding California law, “[a]ny party seeking to
effect a . . . termination of parental rights[ ] to an Indian child under State
law shall satisfy the court that active efforts have been made to provide
remedial services and rehabilitative programs designed to prevent the
breakup of the Indian family and that these efforts have proved
unsuccessful.” (25 U.S.C. § 1912(d); § 361.7, subd. (a); see also In re A.L.
(2015) 243 Cal.App.4th 628, 638; § 366.26. subd. (c)(2)(B)(i).)
Pursuant to state statute, “[w]hat constitutes active efforts shall be
assessed on a case-by-case basis. The active efforts shall be made in a
manner that takes into account the prevailing social and cultural values,
conditions, and way of life of the Indian child’s tribe. Active efforts shall
utilize the available resources of the Indian child’s extended family, tribe,
tribal and other Indian social service agencies, and individual Indian
caregiver service providers.” (§ 361.7, subd. (b).) California courts have
characterized active efforts as “timely and affirmative steps . . . taken to
accomplish the goal which Congress has set: to avoid the breakup of Indian
families whenever possible by providing services designed to remedy
problems which might lead to severance of the parent-child relationship.”

17
(See Letitia V. v. Superior Court (2008) 81 Cal.App.4th 1009, 1016, citing
cases.)
In addition, section 224.1, as amended effective January 2019,
incorporates a newly adopted federal definition of “active efforts.” (§ 224.1,
subd. (f), as amended by Stats. 2018, ch. 833, § 3, eff. Jan. 1, 2019; 25 C.F.R.
§ 23.2.) Pursuant to that statute, active efforts means “affirmative, active,
thorough, and timely efforts intended primarily to maintain or reunite an
Indian child with their family. If an agency is involved in an Indian child
custody proceeding, active efforts shall involve assisting the parent, parents,
or Indian custodian through the steps of a case plan and with accessing or
developing the resources necessary to satisfy the case plan. To the maximum
extent possible, active efforts shall be provided in a manner consistent with
the prevailing social and cultural conditions and way of life of the Indian
child’s tribe and shall be conducted in partnership with the Indian child and
the Indian child’s parents, extended family members, Indian custodians, and
tribe. Active efforts shall be tailored to the facts and circumstances of the
case . . . .” (§ 224.1, subd. (f).)
Mirroring federal law, section 224.1 lists 11 nonexclusive examples of
active efforts that may be provided in a particular case: (1) conducting a
comprehensive assessment of the circumstances of the Indian child’s family,
with a focus on safe reunification as the most desirable goal; (2) identifying
appropriate services and helping the parents overcome barriers, including
actively assisting the parents in obtaining those services; (3) identifying,
notifying, and inviting representatives of the Indian child’s tribe to
participate in providing support and services to the Indian child’s family and
in family team meetings, permanency planning, and resolution of placement
issues; (4) conducting or causing to be conducted a diligent search for the

18
Indian child’s extended family members, and contacting and consulting with
extended family members to provide family structure and support for the
Indian child and the Indian child’s parents; (5) offering and employing all
available and culturally appropriate family preservation strategies and
facilitating the use of remedial and rehabilitative services provided by the
child’s tribe; (6) taking steps to keep siblings together whenever possible;
(7) supporting regular visits with parents or Indian custodians in the most
natural setting possible as well as trial home visits of the Indian child during
any period of removal, consistent with the need to ensure the health, safety,
and welfare of the child; (8) identifying community resources including
housing, financial assistance, transportation, mental health and substance
abuse services, and peer support services, and actively assisting the Indian
child’s parents or, when appropriate, the child’s family, in utilizing and
accessing those resources; (9) monitoring progress and participation in
services; (10) considering alternative ways to address the needs of the Indian
child’s parents and, where appropriate, the family, if the optimum services do
not exist or are not available; and (11) providing postreunification services
and monitoring. (See § 224.1, subd. (f); 25 C.F.R. 23.2.)
We review the juvenile court’s active efforts and reasonable services
factual findings for substantial evidence. (C.F. v. Superior Court (2014)
230 Cal.App.4th 227, 239 (C.F.).) “The issue of sufficiency of the evidence in
dependency cases is governed by the same rules that apply to all appeals. If,
on the entire record, there is substantial evidence to support the findings of
the juvenile court, we uphold those findings. [Citation.] We do not pass on
the credibility of witnesses, attempt to resolve conflicts in the evidence or
evaluate the weight of the evidence. Rather, we draw all reasonable
inferences in support of the findings, view the record most favorably to the

19
juvenile court’s order, and affirm the order even if other evidence supports a
contrary conclusion.” (In re Megan S. (2002) 104 Cal.App.4th 247, 250–251;
see Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 688–689.)
“[W]hen presented with a challenge to the sufficiency of the evidence
associated with a finding requiring clear and convincing evidence, [we] must
determine whether the record, viewed as a whole, contains substantial
evidence from which a reasonable trier of fact could have made the finding of
high probability demanded by this standard of proof.” (Conservatorship of
O.B. (2020) 9 Cal.5th 989, 1005.) A petitioner in this court bears the burden
of establishing that the juvenile court’s findings were not adequately
supported. (Megan S., at p. 251.)
California precedent has long held that “the standards for determining
whether active efforts were made are ‘essentially undifferentiable’ from those
for assessing whether reasonable services under state law were provided.”
(C.F., supra, 230 Cal.App.4th at p. 239, citing In re Michael G., supra,
63 Cal.App.4th at p. 714.) Here, however, both parents assert that newly
enacted section 224.1, subdivision (f), and the underlying federal regulation
on which it is based, imposes an “active efforts” obligation that exceeds the
existing reasonable services standard. We need not resolve the parents’
contention as we have no difficulty concluding on this record that substantial
evidence supports both the juvenile court’s reasonable services finding and its
finding that active efforts were made to prevent the breakup of this Indian
family.
C. Substantial Evidence Supports the Court’s Findings
We conclude that ample evidence supports the juvenile court’s finding
that reasonable services were offered or provided to both mother and father
in this case. As stated above, to support a reasonable services finding “the

20
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.” (Riva M., supra, 235 Cal.App.3d at
p. 414.) As our recitation of the facts makes clear, the Department conducted
a thorough investigation in this case, responding to and investigating the two
referrals and obtaining family information from the maternal relatives,
Alaska and Hawaii child welfare departments, and mother’s tribe. The
information collected revealed mother’s long-term substance abuse problem
and father’s repeated failure to keep his very young child safe. It also
disclosed the possibility that father was not always truthful and might,
himself, be involved in drug use or sales. Under these circumstances, the
services offered to the parents were clearly designed to remedy the problems
presented. Furthermore, the social worker’s dogged efforts to keep in contact
with the parents and assist them with plan compliance were more than
reasonable and were hampered only by the parents’ failure to communicate
with the Department.
Although father complains that the social worker failed to refer him to
a parenting class that worked with his schedule, the social worker testified
that she told father she could refer him to a different class if necessary, but
he never indicated there was a problem. Father also complains that the
social worker should have lessened the drug testing requirement given his
demanding work schedule, should have observed more than one visit with the
minor, and should have referred him to conjoint counseling, therapy, and/or a
support group for those living with an addict. Further observation of the
parents’ visits with E.M. was unnecessary, however, because the visits were

21
positive, other staff adequately reported on the interactions, and the social
worker did not want to disrupt the parent-child dynamic during visits any
more than was necessary.
As for drug testing, the social worker tried to make this requirement as
flexible as possible, and we disagree with father that he had adequately
established his sobriety with the few tests he did take. The juvenile court
expressly rejected father’s excuses for failing to engage in services. Finally,
the social worker explained that counseling was not initially ordered in the
case because the focus was on ensuring E.M.’s safety. Moreover, the parents’
failure to remain in contact with the Department and engage in the services
already provided hampered the provision of services. As the social worker
explained, she never got to the point where she could reevaluate and
determine whether additional services might be beneficial to the parents.
For the same reasons, we reject mother’s complaint that services were
unreasonable due to the social worker’s failure to observe more visits or refer
the parents to therapy. Mother’s other claim—that the social worker did
little to provide adequate referrals and support with respect to entering
residential treatment—is belied by the record. When mother identified a
treatment program she was interested in, the social worker obtained a
release from mother, spoke to the program to see what steps mother needed
to take for admission, explained those steps to mother, and contacted the
eligibility worker directly when mother reported difficulty transferring her
Medi-Cal. Yet mother failed to follow through or respond to the social
worker’s phone calls, voicemails, and text messages. As the Department
observed in the proceedings below, the parents “participated in the elements
of the case that they wanted to participate in, and they did not participate in
the elements of the case that they didn’t want to participate in.” The parents’

22
inability to participate in the services offered does not reflect a failure of the
Department to offer or provide reasonable services.
The evidence regarding the Department’s active efforts in this case is
arguably more compelling. As discussed above, the Department conducted a
comprehensive assessment of the circumstances of the Indian child’s family,
even without the parents’ cooperation, and recommended reunification efforts
for mother despite the fact that her history made her presumptively
ineligible. (§ 224.1, subd. (f)(1).) The Department then identified appropriate
services and attempted to assist the parents in obtaining those services,
again to the extent it was able to do so given the parents’ refusal to
communicate and engage. (Id., subd. (f)(2) & (8).) The Department
immediately contacted the ONC when it learned of mother’s Indian heritage
and involved the tribe throughout the case. (Id., subd. (f)(3).) It contacted
and consulted with E.M.’s extended Indian family members to provide
support for the minor and his parents. (Id., subd. (f)(4).) It offered culturally
appropriate services. (Id., subd. (f)(5).) It supported regular visitation not
only with the parents but with E.M.’s extended Indian family. (Id.,
subd. (f)(7).) Finally, the Department monitored the parents’ progress and
participation in services to the extent permitted by the parents. (Id.,
subd. (f)(9).) As the juvenile court observed after going through a similar
analysis, it could not “see where [the social worker] fell below providing
active efforts.” We agree.
In characterizing the Department’s efforts as passive rather than
active, the parents raise many of the same arguments we rejected above
concerning the provision of reasonable services. Their arguments fare no
better through the lens of the ICWA. As one court has described it:
“ ‘Passive efforts are where a plan is drawn up and the client must develop

23
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.” (In re
K.B. (2009) 173 Cal.App.4th 1275, 1286.) It is abundantly clear that the
Department did more in this case than merely draw up a reunification plan
and leave the parents to use their own resources to bring it to fruition. We
see no error in the juvenile court’s reasonable services and active efforts
findings.6
III. DISPOSITION
The petitions are denied on the merits. (See § 366.26, subds. (l)(1)(C),
(l)(4)(B).) Because the permanency planning hearing in this matter is set for
July 6, 2021, this opinion is final as to this court immediately. (Cal. Rules of
Court, rule 8.490(b)(2)(A).)

6 In parts of her writ petition, mother appears to argue in passing that,
even if sufficient services were provided, the court nevertheless abused its
discretion in ordering a permanency planning hearing in this case. Since
mother failed to support this claim with reasoned argument and citations to
authority, she has forfeited it. (A.C., supra, 13 Cal.App.5th at p. 672.)
Regardless, we see no abuse of discretion.

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 SANCHEZ, J.

WE CONCUR:

HUMES, P. J.

BANKE, J.

A162235
J.M. v. Superior Court

25