Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco City & County Super. Ct. No. JD063308
RIVERA, J.
Diane G. (Mother) and two of her children, D.J.1 and D.J.2 (collectively the children) appeal after the juvenile court denied reunification services and ordered the children placed in long-term foster care. Their primary contention on appeal is that there is no substantial evidence that active efforts were made to prevent the breakup of an Indian family. We affirm.
I. Background
The San Francisco Department of Human Services (the Department) filed a petition pursuant to Welfare and Institutions Code section 300 on behalf of the children on August 10, 2006, alleging the children’s father (Father) had a substance abuse problem, had not completed a treatment program, did not have adequate housing for the children, and had abandoned them in a shelter without adequate supervision, and that Mother was unable to protect the children from the abuse or neglect. The petition also alleged that Mother and Father had two older children who had been provided with a permanent plan of adoption, and that Mother had a third older child who was a dependent of the court. According to the detention report, Mother’s oldest child, X.G., had been in out-of-home placement most of his life. He had a permanent plan of long-term foster care and lived with a licensed extended family member. Mother and Father had two other children, but their parental rights had been terminated and Father’s sister had adopted the children. The Department had not yet located Mother, and the court ordered a search for her.
All undesignated statutory references are to the Welfare and Institutions Code.
Father is not a party to this appeal. We will discuss Father’s involvement with these dependency proceedings only as relevant to the issues on appeal.
The Department found an address for Mother and gave her notice of the jurisdictional hearing of September 14, 2006. Mother appeared at that hearing and told the juvenile court she was a member of the Oglala Sioux Tribe. The juvenile court ordered three hours of supervised visitation a week for Mother, and ordered the Department to provide her with BART tickets or some other appropriate transportation to visit the children.
According to a jurisdiction/disposition report filed November 13, 2006, Mother had a history of mental health and drug problems and was unable to provide for the children. However, she had been visiting them. The Department recommended against providing services for the parents, since their parental rights to two other children had been terminated, and Mother had failed to reunify with her oldest child, X.G.
It appears that the social worker assigned to the case unexpectedly went on an extended medical leave, and at a hearing in October 2006, the juvenile court appointed an independent social worker. Mother was present at the hearing, and her counsel told the court that she had had trouble receiving services through the Department because of her social worker’s medical problems, and that she had been involved in various outpatient classes, but that she needed help arranging further treatment, including residential treatment.
Mother did not appear for a settlement conference on November 16, 2006, and the matter was set for mediation. She did not appear on the date set for mediation, December 19, 2006.
A contested jurisdictional hearing took place on February 13, 2007. Mother appeared at the hearing. The social worker on the case, Rosetta Carol White Mountain, testified that when Father was unable to care for the children, she had a meeting with Father and his family members, and they decided the children should be placed in the same home as their half brother, X.G. The children had been in Father’s care for about four years, since Mother had set her apartment on fire and tried to commit suicide by drinking bleach in front of the children.
White Mountain had also been the social worker responsible for X.G.’s case, approximately 12 years earlier. X.G. was removed from Mother and his father when he was an infant, as a result of Mother’s substance abuse and mental health issues. Mother had been hospitalized pursuant to section 5150 shortly after X.G. was born. Mother had not reunified with X.G., and her parental rights to two other children had been terminated. D.J.1 and D.J.2 were living in a licensed foster home, along with X.G.
White Mountain described the contact she had had with Mother since the children’s dependency proceedings began in August 2006. Father had told White Mountain that he was in contact with Mother and gave an address. White Mountain went to that address on September 7, 2006, and found her there. White Mountain’s conversation with Mother on this occasion went well. White Mountain called the children’s foster mother so that she and Mother could speak, exchange phone numbers, and begin to talk about the children, and also so that Mother could begin to have phone calls with the children. Mother told White Mountain she was not “together” enough yet to visit the children, but said she had been clean and sober for two months.
Since then, White Mountain had had approximately two telephone conversations with Mother, and no face-to-face meetings. She spoke with Mother in early January. Mother told White Mountain she had forgotten an earlier appointment but that she was getting and cashing the checks the Department provided to allow her to visit her children. She was too “overwhelmed” to continue the conversation, and put the telephone down. White Mountain contacted Mother’s treatment program in January 2007 and arranged a meeting on February 1, 2007, with Mother and the staff of the program. However, the meeting was cancelled because Mother left the program without completing it. White Mountain also spoke with Mother about a week before the February 13 hearing; mother told her she was on the way to another program and that she would call or come to see White Mountain later that day to pick up a bus pass, but she never contacted White Mountain.
White Mountain testified that Mother had visited the children three times since October. During that time, White Mountain called Mother’s cell phone several times, and had called Mother’s attorney to ask if she knew where Mother was. The letters White Mountain had sent to Mother’s last address had been returned, and she did not know where Mother was living. She did not know if Mother was in a treatment program, and did not have a release to allow her to talk to the staff of the last program Mother had mentioned. White Mountain was on medical leave from October 1 until about December 12, 2006, and had missed a meeting with Mother in late September due to a medical emergency.
White Mountain believed Mother had a history of substance abuse and mental health issues. In addition to Mother’s confinement under section 5150 when X.G. was a baby, White Mountain had received phone calls from a social worker at “San Francisco General Psych Emergency” about a year before the jurisdictional hearing, asking what kind of services Mother should receive when she was discharged. Staff members at a treatment program had also recently told White Mountain that Mother needed new medications to stabilize her enough to work in their program. White Mountain believed Mother’s mental health issues impeded her ability to act as a parent to the children.
Mother testified that White Mountain had called her late at night, “[a]round 12:00, 10:00, 2:00, sometimes 5:00 in the morning.” This had apparently happened on about three occasions. In those conversations, according to Morther, White Mountain did not discuss the children’s cases. Mother said she had left one treatment program because a staff member there told her she would not be allowed to visit her children for four months. White Mountain denied ever having called Mother during non-business hours.
The juvenile court found it had jurisdiction over the children. As amended, the allegations against Mother were that she had been unable to protect the children from Father’s neglect, and that her “ability to care and provide for the children [was] unknown.”
A dispositional report prepared in February 2007 indicated that Mother had been in a treatment program for almost 30 days during January, and that the staff there had focused on stabilizing her mental health. She was angry and agitated during most of her stay. She had not met with the social worker to pick up her monthly bus passes and to discuss her situation. Although she had been provided with weekly visits and transportation since October, she had visited the children only three times. The Department recommended a plan of long-term placement.
The Oglala Sioux Tribe indicated that Mother was an enrolled member of the tribe and that the children were eligible for services under the Indian Child Welfare Act, title 25 United States Code section 2501 et seq. (ICWA), and that it would participate in the proceedings.
A contested dispositional hearing was set for March 8, 2007. Mother did not appear at the hearing, which was continued.
The continued dispositional hearing took place on May 7, 2007. Neither Mother nor Father appeared at the hearing. Nanette Gledhill testified as an expert on dependency issues regarding ICWA and Indian children. In her opinion, there was clear and convincing evidence that the children would likely suffer serious emotional or physical damage from the continued care and custody of their parents. She had spoken with Gwen Poulier, the ICWA representative from Mother’s tribe, who told her the tribe supported continuing the children’s placement in the foster home and did not want the children to be adopted. Gledhill believed it was necessary to break up the Indian family; she based this conclusion on the facts that the family had a 13-year history with child welfare services, that previous services had been offered and had not eliminated the risk to the children, that Mother’s whereabouts were unknown and until recently Father’s had also been unknown, and that children had been removed from the parents in the past. She believed the Department had made active efforts, including the current efforts to provide the parents with visits, telephone calls, and financial assistance for transportation to the visits.
Deborah Goldstein, a child welfare worker supervisor, testified that she prepared the November 2006 jurisdiction/disposition report while White Mountain was on medical leave. When she prepared the report, she recommended that no services be provided to the parents because the parents were not available, and they were either unable or unwilling to provide a home for the children. Since that time, Mother had had at best “very sporadic contact” with the Department, and Goldstein saw no reason to change the recommendation. While White Mountain was on leave, Mother’s attorney asked Goldstein for transportation money so Mother could visit the children. Goldstein said she would provide the money, but Mother did not come in to get it, and Goldstein never met her. The Department did not provide services for Mother because it was recommending long-term placement.
White Mountain testified that since she began working on the case in July 2006—except for the period she was on medical leave—she had written letters one or two times a month asking Mother to come to the office to meet with White Mountain and telling her she had a bus pass. White Mountain also tried to arrange visitation with the children, advised Mother of times to call the caretaker to arrange visits and talk with the children, and asked Mother for information about her marriage so she could apply for a certificate for tribal enrollment purposes. The phone number she had for Mother been disconnected, and Mother neither called nor came in to the office. White Mountain asked Mother’s attorney for Mother’s current telephone number, but she did not receive one. Although Mother had been present at the earlier contested hearing, White Mountain did not speak with her because Mother did not want to meet with her. Mother had not visited the children since the end of December 2006, and had not made her scheduled telephone calls. White Mountain did not know her whereabouts. However, when she needed Mother’s signature on forms to enroll the children in the Oglala Sioux Tribe, she was able to obtain it through Mother’s attorney in late March 2007.
For the period of February through April 2007, White Mountain sent letters on February 14, March 5, March 8, April 4, April 11, and April 23. A December 2006 letter had been returned to the Department, and after that, Mother filed an address form with the court. None of the other letters were returned to the Department, but White Mountain received no response to them.
When Mother and White Mountain were first in contact, Mother told White Mountain she wanted to go to a substance abuse program in Oakland. White Mountain did an Internet search for programs and gave Mother the information by telephone, as well as mailing her a copy of the information. She referred Mother to a residential program close to where Mother was living, which was designed for Native Americans. Mother did not enroll in the program, however, because it did not take clients with both mental health and substance abuse issues. Mother subsequently spent 30 days at a program in San Francisco, and left without completing it. While Mother was in that program, White Mountain arranged to meet with her and her counselor to discuss visits and contact with the children, but Mother left the program before the meeting took place. White Mountain was not aware of any other programs Mother had entered or mental health services she had used. Mother had not been cooperative with White Mountain, which made case planning difficult; White Mountain did not know whether Mother wanted to reunify with the children or even to have contact with them.
Father had entered and failed to complete three different drug programs during the dependency. On one occasion, White Mountain picked Father up, took him to gather his belongings, and drove him to a residential program.
White Mountain believed neither parent was in a position to offer a home and provide stability to the children. She also believed the children were at risk of neglect, and noted that while in Father’s care, D.J.1 was “very behind in school” and had not been to the dentist, and that her immunizations were not up to date. In addition, in the dependencies of her older children, Mother had not made good use of the services that were offered by the Department and by Indigenous Child and Family Services, and she had failed to reunify with her older children.
The dispositional hearing was continued to July 12, 2007. Neither Mother nor Father attended the continued hearing. White Mountain testified that although the Department had recommended against providing reunification services, in fact it had done so by contacting the parents, providing transportation, arranging for contact with the children, and working with Father’s program. White Mountain had also tried unsuccessfully to meet with Mother earlier in July. She believed she had made active efforts under ICWA to reunify Mother and Father with the children.
Since the May 7, 2007 hearing, White Mountain had tried unsuccessfully to contact Mother, both through mail and through the court-appointed social worker. Mother had not visited the children since January. White Mountain had also been unsuccessful in reaching Father, either though mail, by phone, or in person. Father had not seen the children since August 2006, and had had only one phone call with the children during that time.
The juvenile court approved long-term foster placement as the permanent plan for the children. It ordered no reunification services for the parents, and provided for monthly visitation between the parents and the children. It found that reasonable efforts had been made to prevent or eliminate the need for removal from the home and that active efforts had been made to provide the needed services and rehabilitative programs designed to prevent the breakup of the Indian family. This appeal ensued.
However, the court noted that during post-permanency, it would be happy to consider a petition under section 388 asking for services to be provided if the parents had entered programs and visited the children.
II. Discussion
A. Jurisdictional Findings
Mother contends there is no substantial evidence to support the juvenile court’s jurisdictional finding pursuant to section 300, subdivision (g). Subdivision (g) provides that a child may be adjudged a dependent where “[t]he child has been left without any provision for support; physical custody of the child has been voluntarily surrendered pursuant to Section 1255.7 of the Health and Safety Code and the child has not been reclaimed within the 14-day period specified in subdivision (e) of that section; the child’s parent has been incarcerated or institutionalized and cannot arrange for the care of the child; or a relative or other adult custodian with whom the child resides or has been left is unwilling or unable to provide care or support for the child, the whereabouts of the parent are unknown, and reasonable efforts to locate the parent have been unsuccessful.”
The juvenile court sustained amended allegations under subdivision (g) that “The mother’s ability to care and provide for the children is unknown.” Mother contends this allegation does not state a basis for dependency jurisdiction under subdivision (g). There is evidence, however, that Mother’s own failure to stay in contact with the Department or to respond to its efforts to help her had made it impossible for the Department to know whether she even wanted to reunify with the children, let alone whether she could support and care for them. On the facts of this case, the trial court could reasonably conclude, based on this behavior, that neither Mother nor anyone with whom the children had been left were able to care for and support the children, and that they fell within the terms of section 300, subdivision (g).
In any case, there was no prejudice. The juvenile court also sustained an allegation pursuant to section 300, subdivision (b) that Father had a substance abuse problem for which he required assessment and treatment, that he had not completed a treatment program, that he had abandoned the children in a shelter without adequate supervision, that he did not have adequate housing for the children, and that Mother had been unable to protect the children from Father’s neglect. Mother does not challenge the sufficiency of either this finding or the evidence supporting it.
B. Substantial Evidence Supported the ICWA Findings
Appellants contend there is no substantial evidence to support the juvenile court’s finding that active efforts had been made to prevent the breakup of the Indian family. “In reviewing the findings of the trial court made pursuant to the ICWA, we must decide if the record contains supporting evidence which is reasonable, credible and of solid value. ‘Consequently we “employ[] the substantial evidence test by which 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. [Citation.]” [Citation.]’ [Citation.]” (In re Michael G. (1998) 63 Cal.App.4th 700, 715-716 (Michael G.).)
Under ICWA, “[a]ny party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.” (25 U.S.C. § 1912(d).)
Section 361.7, subdivision (a), tracks this language, and subdivision (b) 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.”
To satisfy these requirements, “ ‘active’ remedial and rehabilitative efforts must be directed at remedying the basis for the parental termination proceedings, and thus the types of required services depend on the facts of each case.” (Michael G., supra, 63 Cal.App.4th at p. 713.) The court in Michael G. went on to note: “[W]hile the court must make a separate finding under section 1912(d), the standards in assessing whether ‘active efforts’ were made to prevent the breakup of the Indian family, and whether reasonable services under state law were provided, are essentially undifferentiable. Under the ICWA, however, the court shall also take into account ‘the prevailing social and cultural conditions and way of life of the Indian child’s tribe. [Remedial services] shall also involve and use the available resources of the extended family, the tribe, Indian social service agencies, and individual Indian care givers.’ (U.S. Dept. of the Interior, Bureau of Indian Affairs, Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg. 67592, § D.2 (Nov. 26. 1979)[(Guidelines)] [guidelines interpreting the ICWA unpublished because binding legislative effect not intended.]; see also Cal. Rules of Court, [former] rule 1439(j).)” (Id. at p. 714; see also Cal. Rules of Court, [former] rule 5.664(j) & (l).)
All rule references are to the California Rules of Court.
At the time of the juvenile court’s ruling, former rule 5.664(l) and (m) applied the active efforts requirement of title 25 United States Code section 1912 to dependency proceedings. The applicable provisions are now found at rules 5.484(c) and 5.485.
Discussing the meaning of active services, the court in Letitia V. v. Superior Court (2000) 81 Cal.App.4th 1009, 1016 (Letitia V.) stated: “The federal statute . . . requires that active efforts be made to prevent the breakup of Indian families. The phrase ‘active efforts,’ construed with common sense and syntax [citation], seems only to require that timely and affirmative steps be 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.” The phrase “breakup of [the] Indian family” means “a situation in which an Indian parent is unable or unwilling to raise the child in a healthy manner emotionally or physically.” (Guidelines, 44 Fed.Reg. 67592, Guideline D.2 & Commentary; In re Crystal K. (1990) 226 Cal.App.3d 655, 667.) Thus, the court in Michael G. noted: “One commentator on the ICWA has drawn the following distinction between active and passive efforts: ‘. . . passive efforts entail merely drawing up a reunification plan and requiring the “client” to use “his or her own resources to[] bring[] it to fruition.” [Citation.] Active efforts, on the other hand, include “tak[ing] the client through the steps of the plan rather than requiring the plan to be performed on its own.” ’ (A.M. v. State (Alaska 1997) 945 P.2d 296, 306, citing Craig J. Dorsay, The Indian Child Welfare Act and Law Affecting Indian Juveniles Manual (1984) 157-158.)” (Michael G., supra, 63 Cal.App.4th at pp. 713-714.)
Appellants argue that the Department’s efforts were neither reasonable nor active, and indeed, that it provided no reunification services at all. As we have noted, the adequacy of efforts to provide active services must be reviewed on a case-by-case basis. (§ 361.7.)
The overriding fact in our evaluation of the Department’s efforts is the difficulty it had in making and maintaining contact with Mother. Mother’s whereabouts were unknown when the petition was originally filed. The Department found her, and Mother appeared at the September 14, 2006, jurisdictional hearing, and the February 13, 2007, contested jurisdictional hearing. She did not appear on the dates set for settlement conference and mediation, and was absent at the contested dispositional hearing. Although Mother attended the February 2007 contested hearing, she did not want to speak with White Mountain.
White Mountain wrote to Mother regularly, but Mother did not respond or pick up her transportation passes. White Mountain called Mother’s cell phone and tried to contact her through her attorney, but it appears she was able to have few conversations with Mother. In January, Mother ended a telephone conversation because she was “overwhelmed,” and in February Mother promised to contact White Mountain to pick up a bus pass, but she did not do so. White Mountain continued to try, unsuccessfully, to contact Mother between the May and July hearing dates. Mother visited the children three times between October and the end of December 2006, and not at all after that, although visitation had been ordered. White Mountain gave Mother referrals to substance abuse programs. She tried to meet with Mother while she was in a San Francisco program to discuss visits and contact with the children, but Mother left the program before the meeting took place. Moreover, there was evidence that Mother had not made good use of services provided in connection with the dependencies of her older children, including services offered by Indigenous Child and Family Services.
Bearing in mind Mother’s failure to communicate with the Department, her failure to contact or visit the children after December 2006, and her failure to complete her treatment program, it is difficult to discern what else the Department could profitably have done to prevent the breakup of the family. The evidence is overwhelming that Mother was in no position to care for the children, and indeed it is clear that she showed no interest in maintaining contact either with them or with the Department for more than six months. Despite that, the Department tried regularly over the course of the dependency to contact Mother, to offer her transportation to visit the children, and to arrange telephone calls between Mother and the children. The Department referred her to treatment programs and tried to meet with her at a program to help her maintain contact with the children. The juvenile court could reasonably conclude that Mother’s virtual disappearance made it impossible for the Department to do more. Based on the facts of this case, we cannot conclude there is no substantial evidence to support the juvenile court’s findings.
Appellants point out, however, that pursuant to its policy, the Department elected not to offer reunification services to Mother because it was recommending long-term placement for the children. Despite this policy, White Mountain testified that the Department had in fact offered such services by providing transportation, arranging for contact with the children, and working with Father’s program, and that she believed she had made active efforts under ICWA. In addition, as we have noted, she gave Mother referrals to treatment programs and tried to meet with her while she was at a residential program. Gledhill likewise testified to the efforts the Department had made when it offered visitation, telephone calls, and financial assistance.
Mother argues that we should not consider Gledhill’s testimony that the Department had made active efforts, contending that it was a legal conclusion offered in the guise of an expert opinion. Whatever the correct resolution of this legal issue, Gledhill testified to the efforts that the Department in fact made. The juvenile court stated that its finding that active efforts had been made under ICWA was based in part on review of the expert testimony.
Appellants challenge the juvenile court’s failure to order reunification services, arguing that ICWA does not allow services to be “bypassed” in the case of an Indian child. The Attorney General disagrees, arguing that under Letitia V., services can be bypassed when a parent has failed to reunify with another child. The mother in Letitia V. had recently lost her parental rights to three children after receiving reunification services. (Letitia V., supra, 81 Cal.App.4th at pp. 1012-1013.) Four days after being arrested for using cocaine, the mother gave birth to a son, who was immediately detained. (Id. at p. 1013.) The court declined to order further services and found that active efforts had been made to prevent the breakup of an Indian family. (Id. at p. 1015.) The mother and her tribe challenged this order in a petition for writ of mandate, contending it conflicted with ICWA. (Id. at pp. 1010-1011.)
The Court of Appeal articulated the issue raised by the petitioners as “whether ‘active efforts’ within the meaning of ICWA require reunification services be provided for each individual child or, put another way, whether the state is free to consider what it defines as recent but unsuccessful reunification efforts with the same parent but a different child sufficient to satisfy the mandate of 25 United States Code section 1912(d) with regard to a sibling.” (Letitia V., supra, 81 Cal.App.4th at p. 1016.) The court denied the petition, stating in part: “The law does not require the performance of idle acts. (Civ. Code, § 3532.) And where substantial but unsuccessful efforts have just been made to address a parent’s thoroughly entrenched drug problem in a juvenile dependence case involving one child, and the parent has shown no desire to change, duplicating those efforts in a second case involving another child—but the same parent—would be nothing but an idle act.” (Ibid., fn. omitted.)
Appellants argue that Letitia V. was incorrectly decided, and that past efforts to help a parent reunify with other children do not satisfy ICWA’s active efforts requirement. They further argue that even if correctly decided, Letitia V. is inapplicable because the dependencies of Mother’s older children were not recent and because the record does not disclose what services Mother received in the past. We need not decide whether any past efforts made in connection with the dependencies of Mother’s older children could satisfy ICWA’s requirements with respect to the dependencies at issue here, however, because we have concluded that under the facts of this case, the juvenile court could reasonably conclude the Department made active efforts with respect to these children.
The children make another challenge to the ICWA finding. They contend that Gledhill did not have sufficient expertise in the traditions and customs of the Oglala Sioux Tribe to qualify as an expert under section 224.6, subdivision (c). Section 224.6, subdivision (c) provides: “Persons with the following characteristics are most likely to meet the requirements for a qualified expert witness for purposes of Indian child custody proceedings: [¶] (1) A member of the Indian child’s tribe who is recognized by the tribal community as knowledgeable in tribal customs as they pertain to family organization and childrearing practices. [¶] (2) Any expert witness having substantial experience in the delivery of child and family services to Indians, and extensive knowledge of prevailing social and cultural standards and childrearing practices within the Indian child’s tribe. [¶] (3) A professional person having substantial education and experience in the area of his or her specialty.” (See also former rule 5.664(i)-(j).)
Title 25 United States Code section 1912(e) provides that state courts may not order foster care of an Indian child “in the absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.”
Gledhill stated in her expert witness declaration that she had extensive experience working with Native American children and families through her employment for five years with the Hoopa Valley Tribe as a housing specialist; that her childhood in a multi-generational Native American home had given her knowledge of Native American customs and childrearing practices; that she had bachelor and master’s degrees in social work, worked as an instructor in the Social Work Department at California State University, Chico, and had worked as a social worker for Butte County Children’s Services for seven years and for one and a half years for a licensed foster family agency; that she had provided expert witness services for 12 counties and the Tehama County Probation Department; that she was the Director of Operations of the California Indian Child Welfare Association; that she had provided ICWA training through the UC Davis Extension Program, Northern California Training Academy; and that she was a member of the California Citizens Review Panel, an oversight committee for child welfare services in California. Moreover, she testified at the dispositional hearing that in her work as a social worker, she had worked on cases involving Mother’s tribe and had provided expert testimony on approximately 10 cases involving the tribe. When asked whether there were substantial differences between her tribe and Mother’s, Gledhill stated that there were differences in ceremonial practices and some cultural practices, but that otherwise there were “some very general commonalities” between the tribes. Based on this testimony, the juvenile court could reasonably conclude that Gledhill was a qualified expert witness, either as one with “substantial experience in the delivery of child and family services to Indians, and extensive knowledge of prevailing social and cultural standards and childrearing practices within the Indian child’s tribe” (§ 224.6, subd. (c)(2)) or as “[a] professional person having substantial education and experience in the area of his or her specialty” (§ 224.6, subd. (c)(3)).
Moreover, the children do not suggest any way in which the testimony of an expert with greater knowledge of the specific cultural traditions of Mother’s tribe could have made any difference to the outcome. This is not a case in which removal of Indian children was attributable to cultural biases, or “the family’s nonconformance with ‘the decision-maker’s stereotype of what a proper family should be.’ ” (In re Brandon T. (2008) 164 Cal.App.4th 1400, 1414 (Brandon T.), quoting Guidelines, 44 Fed.Reg. at p. 67593, D.3 & Commentary.) Mother had not visited the children for more than six months before the juvenile court’s ruling. She had not responded to the social worker’s attempts to contact her to help her visit or speak with the children, and she had failed to complete a treatment program. Appellants have demonstrated no prejudice resulting from the lack of evidence of the social and cultural practices of Mother’s tribe. (See Brandon T., supra, 164 Cal.App.4th at p. 1414.)
C. Denial of Reunification Services
Pursuant to section 361.5, subdivision (b)(10) and (11), the juvenile court ordered no reunification services to Mother. Section 361.5, subdivision (b) provides in pertinent part that reunification services need not be provided when the court finds by clear and convincing evidence: “(10) That the court ordered termination of reunification services for any siblings or half siblings of the child because the parent or guardian failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent or guardian pursuant to Section 361 . . . and that, according to the findings of the court, this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from that parent or guardian. [¶] (11) That the parental rights of a parent over any sibling or half sibling of the child had been permanently severed, . . . and that, according to the findings of the court, this parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from the parent.” Appellants contend the juvenile court should not have applied these “bypass” provisions but instead should have ordered services.
“There is a presumption in dependency cases that parents will receive reunification services. [Citation.] Section 361.5, subdivision (a) directs the juvenile court to order services whenever a child is removed from the custody of his or her parent unless the case is within the enumerated exceptions in section 361.5, subdivision (b). [Citation.] Section 361.5, subdivision (b) is a legislative acknowledgement ‘that it may be fruitless to provide reunification services under certain circumstances.’ [Citation.]” (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 95-96 (Cheryl P.).) However, as noted in Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1464 (Renee J.), making a “reasonable effort to treat” the problems that led to the removal of the siblings is not the same as curing those problems; thus, the fact that a parent has not entirely abolished the problems would not preclude the court from finding she had made a reasonable effort to treat it. (See also In re Albert T. (2006) 144 Cal.App.4th 207, 221 (Albert T.) [requirements “directed to the parent’s reasonable efforts to treat the problem, not the success or failure of those efforts”].) We review an order denying reunification services under section 361.5, subdivision (b) for substantial evidence. (Albert T., at p. 96.)
Mother argues that the record contains no evidence of what services she received in the previous dependencies or what efforts she made to treat the problems that led to the removal of her older children, and contends that the court accordingly had no evidence upon which to base findings under section 361.5, subdivision (b)(10) and (11). In addition, she points out that in September 2006, Mother told White Mountain she had been clean and sober for two months, and argues that this indicates she had made efforts to resolve her substance abuse problems.
Even in the absence of more detailed evidence of the efforts Mother had made, we conclude the record is adequate to support the trial court’s findings. Mother had a history of mental health and drug problems, stemming at least from the time her first child was an infant. The children had not lived with Mother for approximately four years, after Mother had set her apartment on fire and attempted suicide by drinking bleach in front of the children. Although she told White Mountain in September 2006 that she had been clean and sober for two months, she failed to complete a residential program in early 2007, and did not maintain contact with White Mountain afterwards. On one occasion Mother’s attorney procured Mother’s signature for White Mountain, but White Mountain’s efforts to get Mother’s telephone number were unsuccessful. While this evidence is not overwhelming, the juvenile court could conclude from it that Mother had not made reasonable efforts to overcome the mental health and substance abuse problems that had led to the removal of her previous children.
The record does not disclose the circumstances of the removal of Mother’s second and third children, but it does indicate that her first child was removed due to substance abuse and mental health problems, and that she was hospitalized pursuant to section 5150 shortly after he was born.
Mother argues that this evidence is insufficient to support the juvenile court’s decision to bypass reunification services, but each of the cases upon which she relies presents markedly different facts. The court in Renee J. concluded the mother might be eligible for further reunification services, characterizing her conduct as “remarkably good” overall and “nearly flawless” after some initial problems: she had participated in an inpatient drug treatment program and done well, and was thereafter accepted into a sober living home, where she lived successfully, regularly drug-testing, attending 12-step meetings, going to drug court, and holding down a job. (Renee J., supra, 96 Cal.App.4th at pp. 1456-1457, 1464.)
The parents in Cheryl P. similarly had made efforts to resolve the problems that had led to the removal of their older child, Daniel. During Daniel’s dependency, the parents had participated in their case plans, but failed to reunify after 18 months of services. In terminating services, however, the court noted that both parents had tried hard and wanted to be good parents. Furthermore, at the 12-month review hearing in Daniel’s dependency, the court had found that the parents had made good progress with their case plans and substantial progress in alleviating the causes that led to the dependency. (Cheryl P., supra, 139 Cal.App.4th at pp. 94-95.) During Daniel’s dependency, the mother gave birth to Nicholas, and the agency filed a petition on his behalf. (Id. at p. 94.) The court found that the bypass provision of section 361.5, subdivision (b)(10) applied, and denied services. (Cheryl P., at p. 95.) The Court of Appeal granted the parents’ petition for extraordinary writ relief as to Nicholas. (Id. at pp. 90, 99-100.) In doing so, it concluded that a trier of fact could not reasonably find by clear and convincing evidence that the parents had not made a reasonable efforts to treat the problems that led to the removal of Daniel, noting that the parents had rented an adequate apartment, had undergone psychological and psychiatric evaluations, completed parenting courses, engaged in individual therapy, and regularly visited their son, and that the father had followed his medication regiment and had attended an anger management course. (Id. at p. 98.)
Similarly, the mother in Albert T. had made efforts in the dependency of her older child to address her problem of maintaining relationships with men who engaged in domestic violence. She had attended several court-ordered and department-supervised programs directed to domestic violence, and had participated in individual counseling that addressed the issue. Although services as to her older child were ultimately terminated at the 18-month hearing, the Court of Appeal concluded the evidence did not support the finding in her younger child’s dependency that she had not made reasonable efforts to treat the problem, and that she had earned the right to try to reunify with him. (Albert T., supra, 144 Cal.App.4th at pp. 220-221.)
There is no indication that Mother made any comparable efforts in this case. Although Mother told White Mountain in September 2006 that she had been clean and sober for two months, she subsequently left a treatment program without completing it, ignored the Department’s regular communications, and failed to contact or visit her children for months on end. The facts here support a conclusion that she had not made reasonable efforts to treat her problems.
The children note that section 316.5, subdivision (b) allows, but does not require, the court to deny reunification services in the specified circumstances (see Renee J., supra, 96 Cal.App.4th at p. 1464), and contend that the juvenile court abused its discretion in denying services. They argue that reunification was in their best interests for three reasons: to ensure that active efforts have been made to prevent the breakup of the Indian family; because they will be placed in long-term foster care rather than released for adoption; and because they want to reunify with their parents. In light of the evidence we have already discussed, however, we cannot conclude the juvenile court abused its discretion in denying reunification under the bypass provisions of section 361.5, subdivision (b)(10) and (11).
In a July 2007 report, a court-appointed special advocate reported that they wanted to live with their parents if they were being “good.” D.J.1 said that when their father was “bad” he was “mean to them,” and she described being “bad” as using drugs, or “crack.”
III. Disposition
The orders appealed from are affirmed.
We concur: REARDON, Acting P. J., SEPULVEDA, J.