In re C.F. CA2/1 ( 2020 )

Filed 11/30/20 In re C.F. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re C.F., Jr. et al., Persons B302134
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. No. CK58890)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
JENNIFER A.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Steff R. Padilla, Commissioner. Dismissed
in part and affirmed in part.
John L. Dodd, under appointment by the Court of Appeal,
for Defendant and Appellant.
Tarkian & Associates and Arezoo Pichvai for Plaintiff and
Respondent.
____________________
On December 13, 2016, the Los Angeles County
Department of Children and Family Services (DCFS) initiated
juvenile dependency proceedings concerning 14-year-old C.F., Jr.;
13-year-old M.A.; 7-year-old A.A.; 7-year-old N.A.; and 6-year-old
J.A. The juvenile court later declared the case was governed by
the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901et seq.), and sustained an amended petition, which alleged that
A.A.’s, N.A.’s, and J.A.’s presumed father (C.A.) had physically
abused the five children and their mother (mother) and used
narcotics, and that mother failed to protect the children from C.A.
At the disposition hearing held on July 5, 2017, all five children
were released to mother’s custody. On June 1, 2018, the juvenile
court sustained a supplemental petition alleging that mother and
C.A. failed to comply with court orders, removed the children
from her custody, instructed DCFS to provide mother with family
reunification services, and ordered mother, inter alia, to
participate in individual counseling to address case issues.
At a 12-month review hearing held on October 29, 2019
pursuant to Welfare and Institutions Code1 section 366.21,
subdivision (f), the juvenile court found that mother did not
participate in individual counseling as required by the case plan,
1 Undesignated statutory citations are to the Welfare and
Institutions Code.
2
DCFS had made “active efforts” to prevent the breakup of the
Indian family for the purposes of ICWA and its parallel state law
provisions, and returning the children to mother’s physical
custody would create a substantial risk of detriment to them.
The juvenile court ordered DCFS to continue to provide family
reunification services to mother and scheduled an 18-month
review hearing pursuant to section 366.22.
On appeal, mother challenges the active efforts and
detriment findings made at the October 29, 2019 hearing. After
mother filed her notice of appeal, the juvenile court held the
18-month review hearing on August 28, 2020. At that hearing,
the court terminated mother’s family reunification services
relating to C.F., Jr. because he reached the age of majority, found
that DCFS had made active efforts with respect to the other four
children and that returning them to mother’s custody would pose
a substantial risk of detriment to them, terminated reunification
services for C.F., Jr.’s four siblings, and scheduled a
section 366.26 permanency planning hearing for those four
children.
We conclude that mother’s appeal is moot insofar as it
concerns (a) C.F., Jr. and (b) the October 29, 2019 detriment
finding applicable to his four siblings because, in light of the
rulings and findings made at the August 28, 2020 hearing,
we would be unable to provide mother effective relief as to those
appellate claims. On the merits, we reject mother’s challenge to
the October 29, 2019 active efforts finding concerning C.F., Jr.’s
four siblings because, contrary to mother’s arguments, the
juvenile court was not required to support that conclusion with
specific and detailed findings, and mother has failed to
demonstrate that substantial evidence—the applicable standard
3
of review—did not support the court’s active efforts finding.
Thus, we dismiss as moot part of mother’s appeal and affirm the
active efforts finding made as to all children except C.F., Jr.
FACTUAL AND PROCEDURAL BACKGROUND
Although we acknowledge that this matter has a lengthy
factual and procedural history, we summarize only those facts
that are relevant to this appeal.
On December 13, 2016, DCFS filed a juvenile dependency
petition. The petition alleged in pertinent part that jurisdiction
was proper under section 300, subdivisions (a), (b)(1), and (j) on
the grounds that C.A. used narcotics and physically abused
mother and the five children, and that mother failed to protect
the children from C.A.
At the December 13, 2016 detention hearing, the juvenile
court declared that C.F., Sr. was the presumed father of C.F., Jr.
and M.A., and that C.A. was the presumed father of A.A., N.A.,
and J.A. The juvenile court detained C.F., Jr. and M.A., and
released A.A., N.A., and J.A. to mother and C.A.
On the date of the detention hearing, mother completed a
form indicating she may have Indian ancestry. After DCFS gave
notice of the proceedings to the Sault Ste. Marie Tribe of
Chippewa Indians (Tribe), the Tribe intervened on
March 14, 2017, and the juvenile court later declared that the
case fell within the scope of ICWA.
On May 10, 2017, DCFS filed a first amended petition that
added new allegations not pertinent to this appeal. At the
detention hearing held the following day, the court released
C.F., Jr. and M.A. to mother.
On July 5, 2017, the juvenile court held an adjudication
and disposition hearing at which it found jurisdiction was proper
4
and declared the children to be dependents of the court, pursuant
to section 300, subdivisions (a), (b), and (j). The court placed C.F.,
Jr. and M.A. in mother’s custody, and placed A.A., N.A., and J.A.
with mother and C.A.
On December 14, 2017, DCFS filed a supplemental petition
pursuant to section 387, alleging that mother failed to comply
with court orders requiring her to participate in parenting and
counseling programs, and that C.A. violated court orders by
continuing to abuse alcohol and failing to participate in a
substance abuse program and submit to drug and alcohol testing.
On December 15, 2017, the court detained the children, placed
them with relatives, and authorized mother to have monitored
visits with them.
On June 1, 2018, the juvenile court held an adjudication
and disposition hearing on the supplemental petition. The
juvenile court struck a portion of the supplemental petition
alleging that mother violated court orders by failing to
participate in a parenting course. The juvenile court thereafter
sustained the amended supplemental petition. The juvenile court
removed the children from the custody of their respective parents
and ordered DCFS to provide family reunification services and
monitored visits to mother.
On June 1, 2018, the court approved case plans for each of
the five children that varied from one another. The case plans for
C.F., Jr.; M.A.; and A.A. required mother to participate in drug
and alcohol services, whereas N.A.’s and J.A.’s case plans did not.
While M.A.’s case plan did not state that mother needed to
complete a parenting program, C.F., Jr.’s; AA.’s; and N.A.’s case
plans imposed that requirement. Only the case plans for A.A.,
N.A., and J.A. provided that mother had to attend individual
5
counseling sessions, and, unlike N.A.’s and J.A.’s case plans,
A.A.’s case plan does not specify that these sessions are intended
to address “case issues.”
In a status report filed on December 3, 2018, DCFS stated
that on October 3, 2018, the agency had provided mother with
contact information for an organization called United American
Indian Involvement in order to allow her to enroll in individual
counseling sessions. DCFS also reported that on November 21,
2018, it had referred mother to the American Indian Counseling
Center for individual counseling sessions.
On December 21, 2018, the juvenile court held a review
hearing pursuant to section 366.21, subdivision (e) at which it
ordered DCFS to continue providing family reunification services
to mother.
On April 8, 2019, a DCFS social worker visited mother and
asked her why she had not contacted any of the programs for
which the agency had given her referrals.2 The social worker told
mother that DCFS already referred her to the American Indian
Counseling Center and United American Indian Involvement,
stated that both programs offered individual counseling, and
provided mother with contact information for both programs.
2 Mother’s reply brief does not dispute any of the facts that
are discussed in the textual paragraph accompanying this
footnote, which facts are derived from DCFS’s appellate brief.
She thus impliedly concedes these facts. (See Rudick v. State Bd.
of Optometry (2019) 41 Cal.App.5th 77, 89–90 (Rudick)
[concluding that the appellants made an implicit concession by
“failing to respond in their reply brief to the [respondent’s]
argument on th[at] point”].)
6
On May 14, 2019, the social worker again provided mother with
the contact information for the two programs.
On September 18, 2019, the juvenile court held a hearing at
which the court clarified that mother’s case plan required her to
participate in individual counseling, and continued the
section 366.21, subdivision (f) review hearing initially scheduled
for that date because the court needed additional time to review
certain relevant evidence. At the hearing, the court observed
that it had reviewed the reporter’s transcript to determine “what
the case plans were,” and “it look[ed] like there was an error
possibly.” Specifically, the court noted the transcript showed that
although it initially ordered “mother into a drug counseling and
testing program,” the court “later rescinded [its] orders and
ordered mother to be in individual counseling.” The court then
admonished mother that if she did not participate in counseling,
then it would “be a very difficult time for” her.
On October 7, 2019, DCFS filed a last minute information
report. In the report, DCFS stated that on September 18, 2019, a
certified addiction specialist for mother’s substance abuse
program confirmed that the specialist was not providing mother
with mental health services to address case-related issues. DCFS
further claimed that the court had ordered mother to participate
in individual counseling with a “licensed mental health provider,”
and that the certified addiction specialist was not a licensed
therapist. Furthermore, a DCFS social worker reported that on
September 23, 2019, he “re-referred the mother to American
Indian Counseling Center to address the Court-ordered
individual counseling,” and told mother via e-mail that “the
substance abuse counseling in which she [was] . . . participating
[was] not approved by DCFS to address the Court’s order.”
7
On October 29, 2019, the juvenile court held a review
hearing pursuant to section 366.21, subdivision (f).3 The court
reiterated that “mother d[id] not need to do a full drug and
alcohol program” because she had not been ordered to do so. On
the other hand, the court did find DCFS had made “active efforts”
in connection with mother’s obligation to participate in individual
counseling.4 The court stated that “mother knew she needed a
licensed therapist, and [this requirement] was not new to her,”
and expressed its frustration that mother had been “voluntarily
absenting herself from visits” with the children5 and was “not
3 The remainder of this paragraph and the following
paragraph discuss findings and rulings made at the
October 29, 2019 hearing.
4 Under ICWA and related state law provisions, before
placing Indian children in foster care or seeking the termination
of their parents’ rights, child welfare agencies must make active
efforts to provide remedial services and rehabilitative programs
designed to prevent the breakup of the Indian family. (See In re
A.L. (2015) 243 Cal.App.4th 628, 637–638 (A.L.).)
Additionally, although the case plans for C.F., Jr.; A.A.;
N.A.; and J.A. stated that mother was required to take part in a
parenting program, that aspect of the case plans was not
discussed at the October 29, 2019 hearing. Because the parties’
briefing does not challenge that omission, we do not address it in
this appeal.
5 Mother concedes in her opening brief that during the
review period that was the subject of the October 29, 2019
hearing, she missed or was late to multiple scheduled visits with
the children. For instance, mother admits she attended only two
of five scheduled visits between September 18 and
October 4, 2019. (See Artal v. Allen (2003) 111 Cal.App.4th 273,
275, fn. 2 (Artal) [“ ‘[B]riefs and argument . . . are reliable
8
doing the things [she] need[ed] to do to ensure if the children
were returned home it would be safe.” Mother’s reply brief does
not dispute, and thus tacitly agrees with, DCFS’s contention that
“by the October 29, 2019, court hearing, the mother still had not
participated in individual counseling to address the case issues.”
(See Rudick, supra, 41 Cal.App.5th at pp. 88–90.)
The juvenile court found by clear and convincing evidence
that returning the children to mother’s custody would “create a
substantial risk of detriment to” them. It ordered DCFS to
continue to provide family reunification services to mother and
scheduled a review hearing pursuant to section 366.22.
On November 7, 2019, mother appealed the findings and
rulings made at the October 29, 2019 hearing.
The juvenile court ultimately held the section 366.22
review hearing on August 28, 2020.6 The court terminated
mother’s family reunification services, and, with respect to all
children except C.F., Jr., found: (1) DCFS had made active
efforts; (2) mother had not made substantial progress toward
alleviating or mitigating the causes necessitating placement; and
(3) there was clear and convincing evidence that returning the
four children to mother would create a substantial risk of
detriment to them. The juvenile court scheduled a
December 2, 2020 permanency planning hearing pursuant to
section 366.26 for M.A., A.A., N.A., and J.A. As discussed further
indications of a party’s position on the facts as well as the law,
and a reviewing court may make use of statements therein as
admissions against the party. [Citations.]’ ”].)
6 We previously granted DCFS’s request for judicial notice
of the minute orders relating to the August 28, 2020 hearing.
(Evid. Code, §§ 452, subd. (d), 459.)
9
in Discussion part A, the parties dispute whether the findings
and rulings made at the August 28, 2020 hearing moot all or part
of the instant appeal.
DISCUSSION
On appeal, mother challenges the juvenile court’s findings
at the October 29, 2019 hearing that DCFS made active efforts
and that returning the children to mother’s custody would create
a substantial risk of detriment to them. In particular, mother
argues that the juvenile court was required to make specific and
detailed factual findings regarding DCFS’s active efforts and that
the evidence does not support the lower court’s active efforts
finding. Additionally, she contends the juvenile court erred in
finding that returning the children to her custody would create a
substantial risk of detriment to them because a qualified expert
witness did not testify at the October 29, 2019 hearing and there
was no stipulation to allow expert testimony by declaration.
As a threshold matter, DCFS argues that “mother’s failure
to specify she was challenging the court’s finding that returning
the children to her custody would create a substantial risk of
detriment to them in her notice of appeal renders the notice of
appeal insufficient to raise that challenge on appeal.” Mother’s
notice of appeal provides in pertinent part: “I appeal from the
findings and orders of the court (specify date of order or describe
order): On 10-29-19, the Court found active efforts by the
Department and set the matter for a 22 hearing.” (Italics added.)
Because the juvenile court could not have set the matter for
a hearing pursuant to section 366.22 unless it rendered the
detriment finding, we conclude that mother’s notice of appeal
encompasses her challenge to the detriment finding. (See
§ 366.21, subds. (f)(1) & (g)(1) [“After considering the relevant
10
and admissible evidence, the court shall order the return of the
child to the physical custody of his or her parent or legal
guardian unless the court finds, by a preponderance of the
evidence, that 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. . . . [¶] . . . [¶] If . . . a child is not returned to the custody of
a parent or legal guardian at the permanency hearing held
pursuant to subdivision (f), the court shall . . . [¶] . . . [c]ontinue
the case for up to six months for a permanency review
hearing . . . .”]; § 366.22, subd. (a)(1) [“When a case has been
continued pursuant to paragraph (1) . . . of subdivision (g) of
Section 366.21, the permanency review hearing shall occur
within 18 months after the date the child was originally removed
from the physical custody of his or her parent or legal
guardian.”]; In re J.F. (2019) 39 Cal.App.5th 70, 75 (J.F.) [“A
notice of appeal shall be ‘ “liberally construed so as to protect the
right of appeal if it is reasonably clear what [the] appellant was
trying to appeal from, and where the respondent could not
possibly have been misled or prejudiced.” ’ ”].)
Although DCFS insists “[i]t was . . . not reasonably clear
from her trial counsel’s argument before the juvenile court that
the mother would challenge the juvenile court’s finding of
detriment on appeal,” this argument conflates the sufficiency of
mother’s notice of appeal with the forfeiture doctrine. (See
In re Anthony Q. (2016) 5 Cal.App.5th 336, 345 [“[T]he
forfeiture doctrine applies in dependency cases and the failure
to object . . . on a specific ground generally forfeits a parent’s
right to pursue that issue on appeal [citations] . . . .”].)
11
Next, we must determine whether the rulings and findings
made at the August 28, 2020 hearing render any portion of
mother’s appeal moot. For the reasons discussed below, we
conclude that mother’s appeal is moot insofar as it concerns
(a) C.F., Jr. and (b) the October 29, 2019 finding that mother
poses a substantial risk of detriment to the other four children.
Furthermore, as explained in greater detail below, we affirm the
juvenile court’s October 29, 2019 finding of active efforts because
that court was not required to render specific and detailed
findings on that question, the substantial evidence standard
governs, and mother fails to establish that the juvenile court’s
active efforts finding does not meet that standard.
A. Mother’s Appellate Challenges Relating to C.F., Jr.
and the Detriment Finding Are Moot, Whereas Her
Challenge to the Active Efforts Finding Is Not
“As a general rule, it is a court’s duty to decide ‘ “ ‘actual
controversies by a judgment which can be carried into effect, and
not to give opinions upon moot questions or abstract propositions,
or to declare principles or rules of law which cannot affect the
matter in issue in the case before it. ’ ” ’ [Citation.] An appellate
court will dismiss an appeal when an event occurs that renders it
impossible for the court to grant effective relief. [Citation.]”
(In re N.S. (2016) 245 Cal.App.4th 53, 58–59 (N.S.).) “ ‘ “An issue
is not moot if the purported error infects the outcome of
subsequent proceedings.” ’ ” (In re E.T. (2013) 217 Cal.App.4th
426, 436.)
DCFS contends that the juvenile court’s August 28, 2020
active efforts finding and its decision to terminate reunification
services moots mother’s challenge to the October 29, 2019 active
12
efforts finding.7 After briefing closed, we requested supplemental
briefing on whether the juvenile court’s August 28, 2020 findings
and orders mooted her appeal concerning (a) C.F., Jr. and (b) the
detriment finding made at the October 29, 2019 hearing.
At the August 28, 2020 hearing, the juvenile court made no
active efforts finding with respect to C.F., Jr., and the court
terminated mother’s reunification services relating to C.F., Jr.
“as a matter of law because [C.F., Jr.] is 18 years old.” The court
retained jurisdiction over C.F., Jr. after classifying him as a
nonminor dependent.
Mother maintains that her appeal concerning C.F., Jr. is
not moot because “[t]he juvenile court did not terminate
jurisdiction and may retain jurisdiction until C.F., Jr.[ ] is 21.”
(Citing § 303, subd. (a).) The dispositive issue is not, however,
whether the juvenile court still has jurisdiction over C.F., Jr.
Rather, it is whether we can offer “effective relief” to mother.
(See N.S., supra, 245 Cal.App.4th at pp. 58–59.)
As it is undisputed that C.F., Jr. has reached the age of
majority, he is no longer an “Indian child” subject to the
protections of ICWA and its related state law provisions. (See In
re Elizabeth M. (2018) 19 Cal.App.5th 768, 784 [“For purposes of
ICWA, an ‘Indian child’ is an unmarried individual under age 18
7 DCFS moved to dismiss the entirety of mother’s appeal
on this ground. We elected to rule on DCFS’s motion together
with the merits of mother’s appeal. For the reasons discussed in
this section, although we deny DCFS’s motion, we dismiss
aspects of mother’s appeal as moot for reasons not raised in
DCFS’s motion but briefed in response to our requests for
supplemental briefing pursuant to Government Code
section 68081.
13
who is either a member of a federally recognized Indian tribe or
is eligible for membership in a federally recognized tribe and is
the biological child of a member of a federally recognized tribe.”];
In re Melissa R. (2009) 177 Cal.App.4th 24, 34 (Melissa R.)
[“ICWA applies only when an ‘Indian child’ is the subject of a
‘child custody proceeding,’ as those terms are defined by the
Act.”].) In particular, DCFS may continue C.F., Jr.’s placement
in foster care without first showing that it made active efforts to
prevent the breakup of the Indian family or that returning him to
mother’s care would likely result in serious emotional or physical
damage to him. (See A.L., supra, 243 Cal.App.4th at pp. 638,
645, citing 25 U.S.C. § 1912(d) & Welf. & Inst. Code, § 361.7,
subds. (a) & (c).) In fact, now that C.F., Jr. has been declared a
nonminor dependent and the juvenile court has terminated
mother’s reunification services, the lower court will instead
“focus[ ] on the goals and services described in the youth’s
transitional independent living case plan . . . .” (See § 366.31,
subd. (c).)
Additionally, although a detriment finding made at a
section 366.21, subdivision (f) review hearing could result in the
termination of parental rights, the juvenile court chose not to
schedule a hearing under section 366.26 for C.F., Jr. (See
§ 366.26, subds. (c)(1) & (c)(2)(B)(ii) [providing that a juvenile
court’s detriment findings are relevant to its decision whether to
terminate the rights of a parent of an Indian child]; see also
§ 361.6, subd. (a) [“The nonminor dependent’s legal status as an
adult is, in and of itself, a compelling reason not to hold a hearing
pursuant to Section 366.26.”].)
In short, the juvenile court’s prior findings that DCFS
engaged in active efforts to prevent the breakup of C.F., Jr.’s
14
Indian family and that returning him to mother would create a
substantial risk of detriment to him have no apparent impact on
C.F., Jr.’s future dependency proceedings. It follows that
mother’s appeal regarding C.F., Jr. is moot. (Cf. Melissa R.,
supra, 177 Cal.App.4th at pp. 33–34 [holding that a mother’s
appellate claim that a child welfare agency failed to comply
with ICWA’s notice requirements was moot because the child
later reached age 20 and thus was “no longer . . . an ‘Indian
child’ who could be subject to ICWA proceedings if the
orders . . . challenge[d] in this appeal were reversed”].)
Mother’s challenge to the October 29, 2019 detriment
finding regarding the other four children is moot as well. At the
August 28, 2020 hearing, the juvenile court once again found
clear and convincing evidence that returning M.A., A.A., N.A.,
and J.A. would create a substantial risk of detriment to them,
and scheduled a section 366.26 hearing for these four children.
“[O]rdinarily ‘[an] order [setting a section 366.26 hearing]
is not appealable; direct appellate consideration of the propriety
of the setting order may be had only by petition for
extraordinary writ review of the order.’ ” (See In re S.S. (2020)
55 Cal.App.5th 355, 370; § 366.26, subd. (l)(1) [“An 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: [¶] . . .
[(inter alia) a] petition for extraordinary writ review was filed in
a timely manner.”].) This limitation applies to “ ‘[a]ll court
orders, regardless of their nature, [that are] made at a hearing in
which a section 366.26 permanency planning hearing is set,”
along with “findings made at the time reunification services
are terminated . . . .” (See A.L., supra, 243 Cal.App.4th at
pp. 639–640.) “However, the court must give the parent notice
15
of the writ requirement and a failure to do so provides good
cause for allowing [an] appeal [of the order].” (See S.S., supra,
at p. 370.)
We take judicial notice of the juvenile court’s records, which
reveal that mother has not filed a notice of her intent to file a
writ petition challenging the August 28, 2020 orders concerning
the four children. (Evid. Code, §§ 452, subd. (d), 459.) Indeed,
mother concedes that she did not seek appellate review of the
August 28, 2020 orders.
Furthermore, each of the four August 28, 2020 minute
orders includes a clerk’s certificate of mailing indicating that on
the date of the hearing, the following materials were mailed to
mother: “Notice of entry of the above minute order of
August 28, 2020 and appeal rights, notice of intent to file writ,
[and] petition for extraordinary writ form(s).” (Boldface &
capitalization omitted.) Mother does not claim the juvenile court
failed to provide adequate notice of the writ requirement. Thus,
the deadline for mother to seek writ relief has expired, and she
will be unable to seek appellate review of the August 28, 2020
detriment finding in the future.8 (See A.L., supra,
8 Mother suggests in her supplemental briefing that a
reversal of the October 29, 2019 detriment finding would
automatically invalidate the August 28, 2020 orders and findings.
Yet, mother does not cite any authority establishing she may
circumvent the statutory requirement to seek writ relief to be
able to challenge an order setting a section 366.26 hearing. (See
also A.L., supra, 243 Cal.App.4th at p. 639 [emphasizing the
importance of section 366.26, subdivision (l)(1)’s limitation on
appellate relief as it “ensures that challenges to findings made at
the time reunification services are terminated are resolved
expeditiously, and do not interfere with later proceedings”].)
16
243 Cal.App.4th at pp. 639–640 [holding that a mother was
barred from challenging an active efforts finding made in an
order setting a section 366.26 hearing because she did not contest
it via a writ petition and she did “not allege defective notice of
her right to obtain review” of that order]; Cal. Rules of Court,
rule 8.450(e)(4)(B) [“[T]he notice of intent must be filed within
12 days after the date the clerk mailed the notification.”].)
Furthermore, even if we reversed the finding made at the
October 29, 2019 hearing that returning the four children to
mother’s custody would create a substantial risk of detriment to
them, the August 28, 2020 detriment finding alone would
“constitute a sufficient basis for termination of parental rights” if
“it is likely the child[ren] will be adopted,” unless a specific
statutory exception applies (e.g., the court finds a “compelling
reason” for determining that termination would be detrimental to
the children). (See § 366.26, subd. (c)(1).) In light of that fact,
and the fact that mother fails to explain how she could
nonetheless obtain effective relief on her challenge to the October
29, 2019 detriment finding, we conclude that appellate claim is
moot.
Next, DCFS argues that the August 28, 2020 active efforts
finding and the order terminating reunification services moot
mother’s appeal of the October 29, 2019 active efforts finding
concerning M.A., A.A., N.A., and J.A. This argument is
unavailing.
Section 366.26, subdivision (c)(2)(B)(i) provides in pertinent
part: “The court shall not terminate parental rights if: [¶] . . . [¶]
[i]n the case of an Indian child: [¶] . . . [a]t the hearing
terminating parental rights, the court has found that active
17
efforts were not made as required in Section 361.7.”9 (§ 366.26,
subd. (c)(2)(B)(i).) This provision “explicitly allows the issue [of
whether the agency made active efforts] to be addressed at the
permanency planning hearing” held under section 366.26, even
though the juvenile court would have already addressed the issue
at prior review hearings. (See A.L., supra, 243 Cal.App.4th at
pp. 640–641.) Further, section 361.7 does not place any temporal
limitation on the juvenile court’s active efforts analysis at the
section 366.26 hearing, meaning that it can include time periods
preceding the one covered by the August 28, 2020 review
hearing. (See § 361.7, subd. (a); see also A.L., supra,
243 Cal.App.4th 628, 642–645 [considering the child welfare
agency’s conduct “throughout the proceedings” to determine
whether it made “active efforts” for the purposes of sections 361.7
and 366.26, subdivision (c)(2)(B)(i)].) As a consequence, the
juvenile court’s prior active efforts finding is relevant to the
analysis required by section 366.26, subdivision (c)(2)(B)(i).
9 Section 361.7, subdivision (a) requires that “a party
seeking an involuntary foster care placement of, or termination of
parental rights over, an Indian child . . . 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).) Subdivision (b) in turn
provides: “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.”
(Id., subd. (b).)
18
Because reversal of the October 29, 2019 active efforts finding
may affect whether the juvenile court decides to terminate
mother’s parental rights over M.A., A.A., N.A., and J.A., that
aspect of her appeal is not moot.
For these reasons, we dismiss as moot mother’s challenges
concerning (a) C.F., Jr. and (b) the October 29, 2019 detriment
finding relating to C.F., Jr.’s four siblings. We thus next reach
the merits of mother’s claim that the juvenile court erred in
finding at the October 29, 2019 hearing that DCFS made active
efforts to reunite her with M.A., A.A., N.A., and J.A.
B. The Juvenile Court Did Not Err in Failing to Make
Specific and Detailed Findings Regarding DCFS’s
Active Efforts
Mother argues that the juvenile court erred in failing to
make “specific” findings regarding DCFS’s active efforts, and that
the court instead “merely recited ‘active efforts’ had been made,
without detail” and “did not make the second half of the finding
that they were unsuccessful.”10 Mother claims that Title 25
United States Code section 1912(d); 25 Code of Federal
10 Although the juvenile court did not explicitly find that
DCFS’s active efforts were unsuccessful, that finding is implicit
in the court’s conclusion that returning the children to mother’s
custody “would create a substantial risk of detriment to the
child[ren], creating a continued necessity for and appropriateness
of the current placement.” (See Discussion part C, post [holding
that the substantial evidence standard applies to the active
efforts finding]; In re S.R. (2020) 48 Cal.App.5th 204, 219
[“ ‘ “ ‘[Under the substantial evidence standard,] we draw all
reasonable inferences from the evidence to support the findings
and orders of the dependency court[.]’ ” ’ ”].)
19
Regulations part 23.120(a) and (b); Welfare and Institutions Code
section 361.7, subdivision (a); and California Rules of Court,
rule 5.485(c) obligated the juvenile court to make specific and
detailed findings. Thus, mother raises a legal question that is
subject to de novo review. (See In re R.C. (2011) 196 Cal.App.4th
741, 748 [“[T]he proper interpretation of a statute and the
application of the statute to undisputed facts are questions of
law, which we review de novo.”]; Hoitt v. Department of
Rehabilitation (2012) 207 Cal.App.4th 513, 522 (Hoitt) [“Issues of
law[,] . . . including the interpretation of applicable statutes or
regulations, are for the courts to resolve de novo.”]; In re William
M.W. (2019) 43 Cal.App.5th 573, 583 (William M.W.) [“We
independently review interpretations of California Rules of
Court, applying the usual rules of statutory construction.”].)
None of the aforementioned provisions explicitly states that
the juvenile court shall make specific and detailed findings
regarding the active efforts undertaken by a child welfare agency.
Title 25 United States Code section 1912(d) simply provides that
“[a]ny party seeking to effect a foster care placement of, or
termination of parental rights” bears the burden of showing that
“active efforts have been made to provide remedial services and
rehabilitative programs designed to prevent the breakup of the
Indian family” and that those efforts proved to be unsuccessful.
(See 25 U.S.C. § 1912(d).) In turn, 25 Code of Federal
Regulations part 23.120(a) requires the juvenile court to find that
active efforts have been made but proved to be unsuccessful at
preventing the breakup of the Indian family before it may order
an involuntary foster care placement or the termination of
parental rights, and subdivision (b) provides that “[a]ctive efforts
must be documented in detail in the record.” (See 25 C.F.R. part
20
23.120(a) & (b) (2019), italics added.) Section 361.7,
subdivision (a) essentially restates Title 25 United States Code
section 1912(d)’s and 25 Code of Federal Regulations
part 23.120’s requirements. (§ 361.7, subd. (a).)
Additionally, although California Rules of Court,
rule 5.485(c) further expounds on the meaning of “active efforts”
and reiterates that “[t]he active efforts must be documented in
detail in the record,” it does not state that a juvenile court must
make specific and detailed findings concerning an agency’s active
efforts. (See Cal. Rules of Court, rule 5.485(c) [“These active
efforts must include affirmative, active, thorough, and timely
efforts intended primarily to maintain or reunite the child with
his or her family, must be tailored to the facts and circumstances
of the case, and must be consistent with the requirements of
Welfare and Institutions Code section 224.1(f).”].)
We cannot “rewrite” these provisions “to conform to an
assumed intention which does not appear from [their] language.”
(See People v. Haney (1984) 156 Cal.App.3d 109, 115 [construing
a statute]; see also Hoitt, supra, 207 Cal.App.4th at p. 523 [“Rules
of statutory construction govern our interpretation of regulations
promulgated by administrative agencies.”]; William M.W., supra,
43 Cal.App.5th at p. 583 [holding that “the usual rules of
statutory construction” apply to the California Rules of Court].)
Mother argues that we should impose specific and detailed
findings requirement because an appellate court could not
otherwise conduct a “meaningful” review of an active efforts
finding. This assertion is without merit, given that the Court of
Appeal has had no difficulty reviewing the record evidence to
determine whether to uphold active effort findings. (See, e.g.,
A.L., supra, 243 Cal.App.4th at pp. 636–637, 642–645 [concluding
21
that “[i]t [was] clear from the record that the services provided to
[the mother] constituted active efforts,” even though the juvenile
court did not even make an active efforts finding at the hearing
in question]; C.F. v. Superior Court (2014) 230 Cal.App.4th 227,
237, 239–242 (C.F.) [affirming an active efforts finding that
lacked detail and specificity].)
Mother’s reliance on a Montana Supreme Court decision is
not well-founded. (See In re B.Y. (2018) 393 Mont. 530, 534–535.)
First, it is not authoritative precedent as to the interpretation of
federal or California law. (See Wang v. Nibbelink (2016) 4
Cal.App.5th 1, 19 [“While cases from other states are not binding
on us [citation], California courts may adopt other states’
construction of uniform laws to promote consistency.”]; People v.
Mays (2009) 174 Cal.App.4th 156, 164–167 [stating, in the course
of addressing a federal and state due process claim, that “we
are not bound by cases from other states”].) Second, it rests on
the unexplained assumption that ICWA obligates juvenile courts
to make specific and detailed active efforts findings, a premise we
have already rejected.11 Additionally, the other decisions she
cites for this specific and detailed findings requirement are
wholly inapposite. (Citing Oakland Raiders v. National Football
League (2007) 41 Cal.4th 624, 634 [interpreting a statute that
11 Mother also cites an unpublished decision from the
Supreme Court of Alaska. We decline to consider this case
because it is not citable authority. (See Hawran v. Hixson (2012)
209 Cal.App.4th 256, 287 [“While citing unpublished federal
opinions does not violate the California Rules of Court [citation],
there is no such allowance for unpublished opinions of other state
courts. We decline to consider [an unpublished opinion from a
Delaware State Court of Chancery].”].)
22
explicitly requires a trial court to issue a “ ‘specification of
reasons’ ” if it decides to grant a new trial motion]; C.S. v.
Superior Court (2018) 29 Cal.App.5th 1009, 1028–1029 [holding
that “[p]rinciples of due process” required the juvenile court to
include a statement of reasons with an order to transfer the
matter to “adult/criminal court”].)
For these reasons, we hold that the juvenile court did not
err in failing to make specific and detailed findings supporting its
conclusion that DCFS made active efforts to prevent the breakup
of the Indian family.
C. The Substantial Evidence Standard of Review
Applies to Mother’s Challenge to the Evidentiary
Sufficiency of the Juvenile Court’s Active Efforts
Finding
Before reaching the merits of mother’s challenge to the
sufficiency of the evidence supporting the juvenile court’s
October 29, 2019 active efforts finding, we must determine the
applicable standard of review. Mother relies upon a Fourth
District decision holding that this issue is a question of law that
we decide independently, (citing A.L., supra, 243 Cal.App.4th
at p. 639), whereas DCFS contends the First District correctly
adopted the substantial evidence standard. (Citing C.F., supra,
230 Cal.App.4th at pp. 238–239.)
A.L.’s holding rests on the premise that de novo review is
appropriate because “ ‘[w]hether active efforts were made is a
mixed question of law and fact.’ ” (See A.L., supra,
243 Cal.App.4th at pp. 638–639.) Conversely, C.F. reasoned that
the juvenile court’s active efforts inquiry is analogous to its
decision regarding whether the child welfare agency provided
reasonable reunification services, and that a reasonable services
23
finding is subject to substantial evidence review on appeal. (See
C.F., supra, 230 Cal.App.4th at p. 239.) We find C.F.’s reasoning
persuasive.
We acknowledge there is an ongoing dispute as to whether
a child welfare agency’s duty to make active efforts is more
rigorous than its generally applicable duty to offer reasonable
reunification services. (See A.L., supra, 243 Cal.App.4th at
p. 643 [noting that the Bureau of Indian Affairs has issued
guidance arguably suggesting that the active efforts standard is
higher than the standard applicable to reunification services, but
declining to take a position on this issue].) Regardless of whether
that is the case, we conclude that the juvenile court’s active
efforts analysis is sufficiently akin to the reasonable reunification
services inquiry that the two should be reviewed under the same
appellate standard. Specifically, in order to determine whether
the child welfare agency made active efforts or offered reasonable
services, the juvenile court must conduct a fact-intensive
assessment of the circumstances of the case.12 Because the
juvenile court is in the best position to undertake that
assessment, the deferential substantial evidence standard is
appropriate. (Cf. 27A Cal.Jur.3d (2019) Delinquent and
Dependent Children, § 491 [“[In a juvenile criminal adjudication
12 (See A.L., supra, 243 Cal.App.4th at p. 643 [noting that
“ ‘ “[t]he adequacy of reunification plans and the reasonableness
of [the Agency’s] efforts [in an ICWA case] are judged according
to the circumstances of each case,” ’ ” third bracketed insertion
added]; In re D.N. (Oct. 27, 2020, B302910) ___ Cal.App.5th ___,
___ [2020 Cal.App.Lexis 1016, at p. *40, & fn. 19] [observing that
reasonable services have been offered if they “ ‘were reasonable
under the circumstances’ ”].)
24
proceeding], as in any other criminal appeal, a reviewing court is
in no position to weigh any conflicts or disputes in the
evidence.”].)
D. Substantial Evidence Supports the Juvenile Court’s
Finding that DCFS Made Active Efforts
To satisfy its obligation to make active efforts, “ ‘[t]he [child
welfare a]gency “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 . . . .’ ” ’ ” (A.L., supra, 243 Cal.App.4th at p. 638.)
“These active efforts must include affirmative, active, thorough,
and timely efforts, intended primarily to maintain or reunite the
child with his or her family . . .” (Cal. Rules of Court,
rule 5.485(c)), including the identification of “appropriate
services” and “community resources” for the Indian family.
(See § 224.1, subds. (f)(2) & (f)(8).)
Under the substantial evidence standard applicable to an
appellate challenge to an active efforts finding, “ ‘ “ ‘we review the
record in a light most favorable to the judgment and must uphold
the trial court’s findings unless it can be said that no rational
factfinder could reach the same conclusion.’ ” ’ ” (C.F., supra,
230 Cal.App.4th at p. 239.)
Mother claims the juvenile court’s active efforts finding
is not supported by substantial evidence because: (1) DCFS
“did not engage in any effort at all to clarify the [case] plan[s],”
which “were confusing and internally inconsistent”; (2) DCFS
25
rejected mother’s certified addiction specialist because the agency
erroneously believed the court had ordered mother to participate
in individual counseling with a licensed mental health provider;
and (3) “DCFS continued to oppose and not approve mother’s
participation in the methadone program,” and “did not determine
if there was another program which would incorporate the
physician-approved methadone treatment mother had been
receiving for years.” None of these arguments is persuasive.
We acknowledge that the case plans for M.A., A.A., N.A.,
and J.A. could have been better written. Mother correctly
observes that “[n]o two case plans were identical” and they
contained numerous inconsistencies and vague and ambiguous
instructions, including the fact that only A.A.’s, N.A.’s, and J.A.’s
case plans had an individual counseling requirement, and that
only N.A.’s and J.A.’s case plans stated that the individual
counseling was intended to address case issues. Nonetheless, if
mother believed that any aspect of these case plans required
clarification and/or modification, then it was incumbent on
mother’s counsel to seek relief from the juvenile court.13 (See
Cal. Rules of Court, rule 5.660(d) [“Every party in a dependency
proceeding who is represented by an attorney is entitled to
competent counsel. [¶] . . . [¶] Attorneys or their agents are
expected to meet regularly with clients, . . . to contact social
workers and other professionals associated with the client’s case,
13 It appears that prior to the October 29, 2019 hearing,
mother’s counsel did not discharge that obligation. Rather, the
juvenile court intimated at the September 18, 2019 hearing that
it discovered “there was an issue as to . . . what the case plans
were” when it “read the transcript” of the hearing at which it had
imposed the case plans.
26
[and] to work with other counsel and the court to resolve disputed
aspects of a case without contested hearing.”].) Mother does not
cite any authority establishing that ICWA and/or its related state
law provisions shift this duty from her counsel to DCFS. (See
J.F., supra, 39 Cal.App.5th at p. 79 [“The juvenile court’s orders
are ‘presumed to be correct, and it is appellant’s burden to
affirmatively show error.’ [Citations.] ‘ “Appellate briefs must
provide argument and legal authority for the positions taken.”
[Citation.]’ ”].)
Second, although we agree with mother that the case plans
did not require that her individual counseling sessions be
conducted by a licensed mental health provider,14 we nonetheless
uphold the juvenile court’s active efforts finding. The active
efforts standard does not require perfection on the part of the
child welfare agency; rather, it requires “ ‘ “a good faith effort to
develop and implement a family reunification plan.” ’ ” (See A.L.,
supra, 243 Cal.App.4th at p. 638; see id. at p. 645 [affirming an
active efforts finding even though “the Agency might have done
more to assist” the mother].) While “ ‘merely draw[ing] up a
reunification plan and leav[ing] the mother to use her own
resources to bring it to fruition’ ” would fall short of that
standard, “ ‘provid[ing] the mother with the resources necessary
to achieve the goals of her case plan’ ” is sufficient. (See C.F.,
supra, 230 Cal.App.4th at p. 240.)
The December 3, 2018 status report shows that between
October and November 2018, DCFS provided mother with the
14 Mother maintains “[t]his case arose because of domestic
violence and substance abuse [citation], not mental health
issues,” but does not claim the juvenile court erred in ordering
her to participate in individual counseling.
27
contact information for United American Indian Involvement to
allow her to enroll in its counseling sessions, and referred her to
the American Indian Counseling Center. Furthermore, it is
undisputed that on April 8, 2019, the agency told mother that she
had already been referred to these programs, informed her that
they offered individual counseling, and provided her with contact
information for them. (See fn. 2 and its accompanying
paragraph, ante.) There is also no dispute that DCFS provided
her with the programs’ contact information once again on
May 14, 2019. (See id.) In addition, the October 7, 2019 last
minute information report indicates that DCFS re-referred
mother to the American Indian Counseling Center on September
23, 2019.
Applying the deferential substantial evidence standard,
we conclude that DCFS provided mother with the resources
necessary to satisfy the individual counseling requirement, and
thus discharged its obligation to make active efforts to prevent
the breakup of the Indian family. That mother failed to utilize
these resources does not negate the adequacy of the agency’s
efforts. (See C.F., supra, 230 Cal.App.4th at p. 242 [upholding an
active efforts finding because, “despite the impediments caused
by Mother’s continued failure to comply with her case plan, the
Agency made some affirmative efforts to assist Mother” in doing
so].)
Mother’s failure to participate in the individual counseling
programs is thus consistent with her lack of response to DCFS’s
efforts to reunify her family and her apparent lack of interest in
this case. Mother did not attend the October 29, 2019 and
August 28, 2020 review hearings, even though the custody of her
28
children and her parental rights were at stake.15 Furthermore,
evidence in the record shows that shortly before the children
were detained on December 15, 2017, the children were hungry
and lived in an unclean home, the children had failed to attend
school for months, and, after the family was evicted from their
home, mother failed to attend meetings with the wraparound
team and refused a hotel voucher because she wanted to stay at a
better hotel.16 Mother also missed at least five scheduled drug
tests during the pendency of this case. In addition, during the
review period covered by the October 29, 2019 hearing, she
repeatedly missed or was late to scheduled visits with the
children, and on the few occasions when mother did visit the
children during that period, she often did not stay for the time
allotted for these visits.
Third, although mother also complains that “DCFS
penalized [her] [by] requiring her to participate in an unrequired,
15 (See § 366.21, subds. (f)(1) & (g)(4) [providing that at the
12-month review hearing, “the court shall order the return of the
child to the physical custody of his or her parent or legal
guardian unless the court finds, by a preponderance of the
evidence, that the return of the child to his or her parent or legal
guardian would create a substantial risk of detriment” to the
children, and that if the child is not returned at the hearing, the
court may schedule a hearing under section 366.26]; § 366.22,
subds. (a)(1) & (a)(3) [provisions governing 18-month review
hearings, which are similar to section 366.21, subdivisions (f)(1)
and (g)(4)].)
16 We derive the facts included in the textual sentence
accompanying this footnote and in the following two sentences
from admissions made in mother’s opening brief. (See Artal,
supra, 111 Cal.App.4th at p. 275, fn. 2.)
29
full drug and alcohol program,” this purported misconduct on the
part of DCFS has no bearing on the propriety of the juvenile
court’s active efforts finding. Given that the juvenile court
clarified at the October 29, 2019 hearing that it had not ordered
mother to participate in a full drug and alcohol program, the
agency’s efforts relating thereto could not have formed the basis
of the active efforts finding. Furthermore, although mother’s
briefing on this point is not altogether clear, she seems to argue
that DCFS should have determined whether her therapy sessions
with a certified addiction specialist satisfied the case plans’
individual counseling requirement. We reject that contention
because as discussed earlier in this section, DCFS did not have to
explore every conceivable means by which she could achieve the
goals set forth in the case plan, but was simply required to
provide her with the resources necessary to do so. (See C.F.,
supra, 230 Cal.App.4th at p. 240.)
Accordingly, mother has failed to overcome the
presumption of correctness afforded to the juvenile court’s
October 29, 2019 active efforts finding with regard to M.A., A.A.,
N.A., and J.A. (See J.F., supra, 39 Cal.App.5th at p. 79 [“The
juvenile court’s orders are ‘presumed to be correct, and it is
appellant’s burden to affirmatively show error.’ [Citations.”].)
30
DISPOSITION
For the foregoing reasons, we deny the Los Angeles County
Department of Children and Family Services’s motion to dismiss
as to mother’s challenge to the juvenile court’s active efforts
findings made at the October 29, 2019 hearing; affirm the
juvenile court’s active efforts findings made at the
October 29, 2019 hearing in case Nos. CK58890D, CK58890G,
CK58890H, and CK58890I; and dismiss the remainder of
mother’s appeal as moot.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
31