243 Cal. App. 4th 628
Cal. Ct. App.2015Background
- Mother Amber L., an enrolled member of the Iipay Nation of Santa Ysabel, had two children removed after parents were arrested for drug use; children were placed with paternal grandmother and dependency petitions under Welf. & Inst. Code § 300(b) were sustained.
- Tribe notified and tribal representative (Linda Ruis) participated; juvenile court initially found ICWA applicability and that active efforts had been made and that return would likely cause serious harm.
- Reunification services were ordered but later terminated at the six‑month review after Amber made minimal progress, had sporadic visitation, relapsed in treatment, and tested positive for drugs. Amber did not seek writ review of the review‑hearing orders.
- At the permanency planning/§ 366.26 hearing, the court received agency reports and an expert declaration from the tribal representative; the court excluded portions of the expert declaration addressing whether “active efforts” were provided, concluding that issue had already been decided at the review hearing.
- The court found the children adoptable, found by proof beyond a reasonable doubt (ICWA § 1912(f)) that continued parental custody would likely cause serious emotional or physical damage, terminated parental rights, and ordered adoption placement with the paternal grandmother.
Issues
| Issue | Plaintiff's Argument (Agency) | Defendant's Argument (Amber) | Held |
|---|---|---|---|
| Whether the juvenile court erred by excluding evidence and failing to make an ICWA “active efforts” finding at the § 366.26 termination hearing | Agency: Issue was already decided at the six‑month review; Amber forfeited challenge by not pursuing timely writ; no need to relitigate at § 366.26 | Amber: Court wrongly precluded evidence and failed to make a new active‑efforts finding; the review finding was inadequate | Court: Excluding evidence and failing to make a new active‑efforts finding at § 366.26 was error, because § 366.26 expressly contemplates an active‑efforts determination at the termination hearing, but the error was harmless on these facts |
| Whether Amber forfeited challenge to the review‑hearing active‑efforts finding by not filing a writ | Agency: Forfeiture under § 366.26(l)(1); Amber received notice and did not seek writ relief | Amber: Did not seek writ; argues prior finding was inadequate | Court: Amber forfeited challenge to the six‑month finding but may attempt to litigate active efforts at the termination hearing; forfeiture stands for the review order |
| Whether the agency’s services satisfied ICWA/§ 361.7 “active efforts” standard | Agency: Services and tribal coordination (referrals, contacts, placement per ICWA preferences) amounted to active efforts | Amber: Agency efforts were inadequate, conflated ‘‘reasonable efforts’’ with the higher ICWA standard; pointed to BIA Guidelines | Court: Record shows good‑faith, case‑specific efforts that met ICWA and state law; BIA Guidelines not controlling; agency satisfied active‑efforts standard on these facts |
| Whether evidence supported the § 1912(f) finding that continued custody would likely cause serious harm | Agency: Tribal expert, agency reports, history of parental substance abuse, sporadic visitation, relapse, and prior failure to reunify supported detriment finding | Amber: Tribal expert had limited personal contact and was not aware of recent treatment; Amber had enrolled in treatment pre‑hearing | Court: Substantial evidence supports the beyond‑a‑reasonable‑doubt detriment finding; court weighed credibility and considered all evidence |
Key Cases Cited
- In re K.B., 173 Cal.App.4th 1275 (Cal. Ct. App.) (whether ‘‘active efforts’’ were made is a mixed question of law and fact)
- In re A.C., 239 Cal.App.4th 641 (Cal. Ct. App.) (agency must make good‑faith efforts; adequacy judged case‑by‑case)
- In re Matthew Z., 80 Cal.App.4th 545 (Cal. Ct. App.) (timing of detriment findings and relationship to § 366.26 proceedings)
- In re Merrick V., 122 Cal.App.4th 235 (Cal. Ct. App.) (orders made when setting a § 366.26 hearing must be challenged by writ)
- In re Jason L., 222 Cal.App.3d 1206 (Cal. Ct. App.) (harmless‑error analysis in dependency context)
- In re Debra M., 189 Cal.App.3d 1032 (Cal. Ct. App.) (child’s need for timely permanency may limit opportunity for parental rehabilitation)