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In Re D.G.H. et al., Persons Coming Under the Juvenile Court v. C.H

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Butte


April 27, 2011

IN RE D.G.H. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. BUTTE COUNTY DEPARTMENT OF EMPLOYMENT AND SOCIAL SERVICES, PLAINTIFF AND RESPONDENT,
v.
C.H., DEFENDANT AND APPELLANT.

Super. Ct. Nos. J34345, J34346, J34347, J34348

The opinion of the court was delivered by: Butz , J.

In re D.H. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COPY

C.H., mother of the minors, appeals from orders of the juvenile court made at the permanency review hearing. (Welf. & Inst. Code, §§ 366.22, 395.)*fn1 Mother raises several contentions relating to the substantive provisions of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) as interpreted in California statutes and rules.*fn2 (§§ 224-224.6; Cal. Rules of Court, rules 5.480-5.487.*fn3 ) We conclude the court erred in failing to make a finding of active efforts but the error was not prejudicial and we shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The four minors, D.G.H. (aged 14), D.D.H. (aged 11), J.H. (aged seven), and D.K.H. (aged four), were removed from the father's custody in September 2008. The minors are Indian children and the ICWA applies. Both parents were offered reunification services. Prior to the permanency hearing, the father died and J.H. and D.D.H. were placed with a cousin. By the time of the permanency hearing, mother had not completed parenting classes, had relapsed into substance abuse and was not visiting regularly. A psychological evaluation indicated mother had mild cognitive impairments and a memory dysfunction. The social worker spent large amounts of time on the case and worked closely with the tribe in tailoring mother's service plan and in following up on mother's participation. At the permanency hearing in January 2010, the court ordered further services for mother, although she had not significantly benefitted from the previous reunification efforts, and modified the recommended findings to include the phrase "active efforts" as required by the ICWA.*fn4

The report for the permanency review hearing filed in March 2010, recommended termination of services and a permanent plan of long-term foster care with a goal of guardianship for the minors. D.G.H. and D.D.H. remained placed with a cousin while J.H. and D.K.H. were in a tribal foster home. Mother continued to struggle to find stable housing for herself and her infant and was currently living with a relative.

During this period of services, the social worker offered transportation to mother, which she declined. The social worker also made referrals as needed to services, including those at Feather River Tribal Health (FRTH), and made active efforts to discuss mother's progress and her ability to apply the concepts addressed in the services. The social worker continued to call and remind mother of appointments to ensure her attendance and supervised her weekly visitation with the minors. At supervised visits mother did not demonstrate she had benefitted from parenting classes at FRTH in that she was unable to consistently monitor the minors' behaviors and intervene appropriately, asked five-year-old D.K.H. to watch her one-year-old child so she could leave the room and generally did not understand age-appropriate behavior. The visits remained supervised because mother continued to try to discuss adult matters with the minors, which led to their acting out when they returned to foster care. Mother participated in a domestic violence class at FRTH, but maintained her relationship with the father of the one year old although the father had a history of domestic violence. Mother also participated in substance abuse treatment at FRTH. Mother was regularly visiting J.H. and D.K.H. but had difficulty supervising them. D.G.H. and D.D.H. continued to refuse regular visits with mother. Visits were increased to include a visit at the Tribal Office during the Elder's Dinner. The social worker recommended continuing the current placements with a goal of greater permanency for J.H. and D.K.H.

The permanency review hearing was continued to May 2010. At the hearing, mother submitted on the recommendation to terminate reunification services with the placements of the minors to remain the same. All the parties agreed to that resolution of the matter. As to D.K.H. and J.H., the court terminated reunification services and ordered a permanent plan of long-term foster care with a goal of guardianship. As to D.G.H. and D.D.H., the court terminated reunification services and ordered a plan of relative placement. The issue of good cause to deviate from the ICWA placement preferences was reserved by stipulation. The findings and orders adopted by the juvenile court were not amended to strike the phrase "reasonable efforts" and replace it with the phrase "active efforts" and no other modification of the orders was made to show a finding of active efforts.

DISCUSSION

I Mother's notice of appeal states she is appealing the orders of the permanency planning hearing as to all four minors. However, the arguments in her opening brief are limited to the two younger minors, J.H. and D.K.H. No issues having been raised as to the two older minors, the permanency planning orders as to D.G.H. and D.D.H. are affirmed. (See People v. Tanner (1979) 24 Cal.3d 514, 518, fn. 2.)

II Mother argues as to J.H. and D.K.H. that the court failed to make the required findings that return of the two minors would likely result in serious emotional or physical damage to them based upon testimony of a qualified expert witness and considering evidence of the prevailing social and cultural standards of the tribe as required by title 25 United States Code section 1912(e), Welfare and Institutions Code section 361.7, and rule 5.484.

As in the prior appeal, no one, including the tribal representative, made any objection to the form of the finding and orders and no one challenged the lack of an expert; therefore, the issue has been forfeited. (In re K.B. (2009) 173 Cal.App.4th 1275, 1285, fn. 11; In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502; In re Christopher B. (1996) 43 Cal.App.4th 551, 558.)

Mother now asserts that failure to object constituted ineffective assistance of counsel. For the reasons set forth in our prior opinion (D.G.H. I, supra, C064177), the findings and supporting evidence mother now asserts should have been part of the court's ruling were unnecessary. The foster placement was a continuing placement and, because expert testimony was adduced at the dispositional hearing, circumstances had not changed significantly, and the ruling was the result of an agreement among the parties, there is no reason to suppose the court's findings would have differed if an expert had testified. Accordingly, counsel's representation could not have been inadequate for failing to object. (Strickland v. Washington (1984) 466 U.S. 668, 688 [80 L.Ed.2d 674, 693]; People v. Fosselman (1983) 33 Cal.3d 572, 581; People v. Pope (1979) 23 Cal.3d 412, 426, disapproved on a different ground in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.)

III Mother also contends the juvenile court failed to make proper findings of active efforts as required by title 25 United States Code section 1912(d), Welfare and Institutions Code section 361.7, and rule 5.484(a).

Again, there was no objection to the form or content of the orders, which would normally constitute a forfeiture of the issue. (In re Dakota S., supra, 85 Cal.App.4th at pp. 501-502; In re Christopher B., supra, 43 Cal.App.4th at p. 558.) Mother again claims trial counsel was inadequate for failing to object. Because no active efforts finding was made either orally or in the written orders, we address the issue.

Unlike the permanency orders, which were modified to include the phrase "active efforts," the orders for the permanency review hearing were not so modified. This hearing was a review of a continuing foster placement and the court was required to consider the "extent of the agency's compliance with the case plan in making reasonable efforts, or, in the case of an Indian child, active efforts as described in section 361.7, to return the child to a safe home and to complete any steps necessary to finalize the permanent placement of the child . . . ." (§ 366, subd. (a)(1)(B), italics added.) Section 361.7, subdivision (b) provides, in relevant part: "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 services agencies, and individual Indian caregiver service providers."

Despite mother's submission on the recommendation to terminate her reunification services, the court was required to make a finding of active efforts and did not do so. Mother's trial counsel failed to object when no active efforts finding was made and we must determine whether counsel's inaction was prejudicial to mother. (Strickland v. Washington, supra, 466 U.S. at p. 694 [80 L.Ed.2d at p. 698].)

In assessing the question of prejudice we consider whether active efforts were made. "Whether active efforts were made is a mixed question of law and fact." (In re K.B., supra, 173 Cal.App.4th at p. 1286.) We can review the record to determine what services were provided. Whether the services constituted "active efforts" within the meaning of section 361.7 is a question of law, which we decide independently. (In re K.B., at p. 1286.)

The record shows that mother was referred to FRTH services and had visits with the minors at a regular tribal event. The social worker was in constant contact with the tribal representative and service providers. The social worker accommodated mother by moving regular visits to a convenient location, which improved mother's ability to attend visits, and by reminding mother of appointments to minimize the effect of mother's memory loss problems. The intensive efforts by the social worker took into account the tribal social and cultural values and utilized tribal resources because all of mother's services were through FRTH except supervised visitation and visits had been expanded to permit mother to attend a regular tribal event with the minors. Further, the social worker accommodated mother's special needs and coordinated efforts with the tribal service providers.

It is abundantly clear that the services provided mother constituted "active efforts." The court's failure to make the finding was harmless because it was not reasonably probable that the finding, if made, would have been in mother's favor. (In re Jason L. (1990) 222 Cal.App.3d 1206, 1219.) Thus, trial counsel's failure to object to the lack of an active efforts finding was not prejudicial to mother.

DISPOSITION

The orders of the juvenile court as to the four minors are affirmed.

We concur: HULL , Acting P. J. HOCH , J.


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