Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JD225275
OPINION
SCOTLAND, P.J.
Roderick C. (appellant), the father of R.H. (the minor), appeals from the juvenile court’s dispositional order denying him custody of the minor. (Welf. & Inst. Code, § 395; further section references are to this code unless otherwise specified.) Appellant contends the juvenile court (1) did not make the proper finding of detriment to the minor before placing her in foster care, and (2) erred in finding active efforts were made to prevent the breakup of an Indian family. We shall affirm the order.
BACKGROUND
In December 2006, the minor was a six-year-old girl who was living with her mother, Carrie H. On December 28, the mother went to a suspected drug house next door, leaving the minor with the mother’s boyfriend, Ricky F., who could not care for the minor. Before the mother left, Ricky F. warned her that he would call Child Protective Services (CPS) if she left. She told him to go ahead because she did not care.
When police officers responded, they found the mother next door. She appeared to be very intoxicated and was with many other intoxicated adults. The minor was taken into protective custody because her intoxicated mother was unable to care for her.
The minor told a social worker that the police brought her to the Sacramento Crisis Nursery North “because Mommy was drunk.” She said that her mother used sandals and belts to “whoop” her, while Ricky F. “only uses belts”; that the minor slept on the floor while her siblings slept in beds; and that her mother did not put the minor in school. The minor also indicated that she knew of domestic violence between her mother and Ricky F. However, when questioned further, she denied witnessing any such incident.
The Sacramento County Department of Health and Human Services (DHHS) filed a dependency petition, alleging that the mother’s ability to provide adequate care, support, and supervision of the minor was impaired by substance abuse problems, and that she and her boyfriend had a history of domestic violence in the presence of the minor. (§ 300, subd. (b).)
The social worker’s report related prior CPS referrals for the family, including one made to CPS in Oklahoma in 2001, while the minor was living with her mother and maternal great grandmother after the mother removed the great grandmother from a nursing home in order to have a caretaker for the minor. The home was described as filthy, with broken windows and the odor of something dead, and the mother was “high” and “drunk.”
The mother is registered with the Fort Sill Apache Tribe in Oklahoma. Appellant has no Indian heritage. The mother is from Oklahoma; she moved to California about three years before the incident in this case and had gone back and forth between the two states during that time.
The Fort Sill Apache Tribe was given notice of the proceedings and expressly declined to intervene at the time of the combined jurisdictional and dispositional hearing.
In July 2006, the mother called a Bureau of Indian Affairs (BIA) investigator and asked for the tribe’s help in returning her to Oklahoma. The mother said she had been involved in severe domestic violence with her boyfriend. She was given an 800 number to call for immediate assistance in escaping from the domestic violence and was told that her tribe would be called to arrange assistance. However, she never called the investigator back. A few days after the call, the BIA investigator saw the mother at a local Wal-Mart in Oklahoma, appearing to be intoxicated or under the influence of a controlled substance.
In an interview with the social worker on January 2, 2007, the mother was intoxicated, laughed at inappropriate times, and bobbed her head with a glazed look. Admitting to being a heavy drinker of alcohol who first used alcohol at the age of 12, she dismissed her CPS history, denied having problems with drugs or alcohol, and said that she wanted the minor released to her custody so they could move to Oklahoma. She acknowledged she had not enrolled the minor in school, claiming that she could not find the birth certificate. Stating that she would participate in services, she hoped the tribe will intervene in the proceedings.
On the day of the detention hearing, the mother tested positive for cocaine. She declined a referral to residential treatment and instead was referred to the Specialized Treatment and Recovery Services program (STARS), 12 step group meetings, and drug testing three times a week at a local testing facility. She never participated in the STARS program after her initial intake on January 2, 2007, and there is no evidence of her using any of the other services offered or taking any other steps to address her drug problem.
At 11:55 a.m. on January 8, 2007, the mother called the social worker, sounding intoxicated and asking where the minor was. After being reminded the minor was in foster care, the mother asked for visitation but would not agree to a specific date. That same day, the mother called a representative from her tribe and declared that she would not undergo drug treatment or any other service until she got the minor back. The tribal representative knew the mother well and believed she was an extensive drug user.
Appellant, who lived in Anadarko, Oklahoma, was interviewed over the telephone. According to him, the mother had been in a relationship with Ricky F. for the last four years. The mother had phoned appellant twice in the summer of 2006 with allegations that Ricky F. had beaten her. And she had called appellant a few times in the past two months, sounding drunk during the calls. According to appellant, the minor lived with him the first two years of her life because of the mother’s personal problems.
Appellant admitted to having been in prison from 1996 to 1999 for selling crack cocaine. He acknowledged using cocaine and marijuana before going to prison, but claimed he used marijuana only once or twice a month to help him eat. Not having worked since 2001, when he discovered he has Crohn’s disease, he was trying to obtain disability benefits.
Appellant’s wife worked “on the side” and was going to school. They were living with their two children. Appellant has another child, a daughter, with a third woman. The girl was in protective custody, and appellant was seeking custody of her.
When asked what he liked about himself, appellant replied: “I’m a pretty good person. I’m laid back. I’m respectful. I’m not confrontational. I’m good with kids. I coach football. I volunteer my time with kids.” When asked why he allowed the minor to live with her mother in spite of her inability to take care of their daughter, defendant said: “I can’t take a child away from her mom.”
At the detention hearing on January 3, 2007, the juvenile court ordered DHHS to offer reunification services to the parents and to initiate Interstate Compact on the Placement of Children (ICPC) proceedings with respect to appellant in Oklahoma.
An Indian Child Welfare Act (ICWA) expert presented a report on the family, although the expert had been unable to contact either parent or the tribal representative. The expert concluded there was “no evidence that services have been provided to prevent the break-up of this Indian family. Though there have been prior referrals, no information was received that a case plan had been developed, or that services had been provided.” The expert also questioned whether any of the services provided were “culturally relevant” to the mother. The expert opined that the lack of supervision provided by the mother and the child’s exposure to domestic violence “constitute[d] a concrete threat to the child’s physical and emotional well being.” Although appellant had asked for the child to be placed with him, the expert raised “concerns with regard to his continued drug use, and the fact that he has two children living with him, and his oldest daughter is currently in protective custody.”
Neither parent was present at the hearing when the juvenile court sustained the dependency petition. Both parents also were absent at the dispositional hearing. No evidence was presented other than the expert’s report and report and recommendations of DHHS. Counsel for appellant argued that placement with appellant was supported by ICWA, as codified in section 361.7, subdivision (a), and by section 361.2. According to appellant’s counsel, there was no clear and convincing evidence that placement of the minor with appellant would be detrimental to her, and no substantial evidence that DHHS had made active efforts to prevent the breakup of this Indian family.
The juvenile court made extensive findings as follows:
• There was “clear and convincing evidence 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 proved to be unsuccessful.” As basis for the ruling, the court cited the mother’s contact with the tribe, her contact with the BIA regarding domestic violence, and her telling the tribal social worker she would not be participating in reunification services.
• Appellant had not complied with the case plan and had made only “minimal” progress towards alleviating the conditions that required placement of the child. The court concluded DHHS had shown by clear and convincing evidence that it had satisfied its burden of providing the services required under ICWA.
• “There is a substantial danger to the child’s physical health/safety, protection or emotional well-being or would be if the child was returned home and there are no reasonable means by which the child’s well-being can be protected without removing the child from the parent(s)’ physical custody.”
• There was clear and convincing evidence, including the ICWA expert’s report, “that continued custody of the child by the parents is likely to result in serious emotional or physical damage to the child . . . .”
• Clear and convincing evidence established that there had been a failure to protect the child. In this respect, the court noted the mother’s substance abuse and domestic violence, and appellant’s use of illegal substances and failure to take action to protect the minor from her mother.
Accordingly, the juvenile court ordered placement of the minor in a home other than her parents’, and adopted the case plan that was recommended by DHHS.
DISCUSSION
I
Appellant contends the juvenile court failed to make a proper finding, either written or expressly on the record, of the detriment necessary to place the minor with someone other than her noncustodial parent, and that any implied finding of detriment is not supported by substantial evidence. The contention fails.
When it orders removal of a minor under section 361, the court “shall first determine” whether there is a parent who wants to assume custody who was not residing with the minor at the time the events that brought the minor within the provisions of section 300 occurred. (§ 361.2, subd. (a).) If that parent requests custody, the court “shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.” (Ibid.) Written or oral findings must be made regarding the basis for the court’s determination. (§ 361.2, subd. (c).)
A finding of detriment must be made by clear and convincing evidence. (In re John M. (2006) 141 Cal.App.4th 1564, 1569.) On appeal, the juvenile court’s finding is reviewed in the light most favorable to the order to determine if substantial evidence supports it. (In re Marquis D. (1995) 38 Cal.App.4th 1813, 1825 (hereafter Marquis D.).) If the court made no express finding of detriment, we imply the necessary finding “only where the evidence is clear.” (Ibid.)
Relying on Marquis D., appellant contends the juvenile court never made the express finding required by the Welfare and Institutions Code that placement with him would be detrimental to the minor. Marquis D. is distinguishable.
Respondent argues appellants did not challenge the order in the juvenile court and have forfeited the issue. (In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502.) However, part of appellant’s argument is, in effect, that substantial evidence does not support the court’s order. Such a challenge cannot be forfeited. (In re Brian P. (2002) 99 Cal.App.4th 616, 623.)
In Marquis D., the Court of Appeal was “not satisfied” that the juvenile court had made the necessary finding of detriment or had even “adequately explored” whether placing the children with the nonoffending parent would be detrimental to their welfare. (Marquis D., supra, 38 Cal.App.4th at p. 1825.) Indeed, the juvenile court had relied on the wrong statutory provision in removing the children from the nonoffending parent’s custody, and it did not “articulate the basis for its order denying” placement with the nonoffending parent. (Id. at p. 1821.)
Here, the juvenile court did not apply the wrong standard. Not only did appellant’s trial counsel argue that the clear and convincing evidence standard applied to a finding of detriment necessary to preclude placing the minor in appellant’s custody, the court repeatedly referred to the clear and convincing evidence standard in making various findings. Although the court did not recite the detriment standard of section 361.2, subdivision (a), its findings--related in detail above--were centered on avoiding a placement that was detrimental to the minor.
In any event, absent an express detriment finding by the juvenile court, we will infer such a finding when the evidence unquestionably demonstrates the requisite detriment, as it did in this case. (Marquis D., supra, 38 Cal.App.4th at p. 1825.) Overwhelming evidence supports an implied finding that placement of the minor with appellant would have been detrimental to her.
II
In accordance with ICWA, a child shall not be placed in involuntary foster care unless the juvenile court is satisfied “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).)
Appellant contends there was insufficient evidence to support the juvenile court’s finding that active efforts had been made to prevent the breakup of the Indian family. We disagree.
To satisfy the requirements of ICWA, “‘active’ remedial and rehabilitative efforts must be directed at remedying the basis for the . . . proceedings . . . .” (In re Michael G. (1998) 63 Cal.App.4th 700, 713.) Therefore, “the types of required services depend upon the facts of each case.” (Ibid.) In practice, these services are “essentially undifferentiable” from the reunification efforts required under California law for dependency proceedings that are not subject to ICWA. (See id. at p. 714.) We review the juvenile court’s findings under the substantial evidence standard. (Id. at p. 715.)
Reunification efforts must be reasonable and tailored to the family’s needs. (In re Mario C. (1990) 226 Cal.App.3d 599, 603-604.)
Here, numerous services had been offered to the mother, including drug counseling, participation in a 12 step program, and contact with a social worker from her tribe. But she refused to participate in the offered services until she regained custody of the minor. In spite of the mother’s unwillingness to take the offered help, DHHS developed a case plan for her, which was implemented in the juvenile court’s order. These efforts were sufficient to satisfy the statute with respect to the mother.
The family preservation efforts also included appellant. The ICPC process initiated by the juvenile court would aid appellant’s effort to have custody of the child if a favorable report was obtained. DHHS also had a case plan for appellant, which included participation in a 12 step program, substance abuse testing, and completion of the ICPC process.
The ability of DHHS to provide the appropriate services to appellant was limited because he lived in Oklahoma and did not come to California. However, ICWA does not require the performance of unreasonable or impossible services to maintain the family. “The Act requires that active efforts be made to provide services, not that services be provided regardless of when a parent becomes available to receive those services.” (In re William G. (2001) 89 Cal.App.4th 423, 428.)
The juvenile court was entitled to find that DHHS did all it reasonably could, given appellant’s remote location. ICWA required no more. The court’s finding that active efforts were made to prevent the breakup of the Indian family is supported by substantial evidence.
DISPOSITION
The order is affirmed.
We concur: NICHOLSON, J., CANTIL-SAKAUYE, J.