In re V.M. CA6
Opinion
Filed 9/9/26 In re V.M. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
In re V.M. et al., Persons Coming H053805 Under the Juvenile Court Law. (Santa Clara County Super. Ct. Nos. 25JD028609, 25JD028610, 25JD028611)
SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN’S SERVICES,
Plaintiff and Respondent,
v.
D.W.,
Defendant and Appellant.
D.W. (mother) appeals from a juvenile court order following a joint jurisdiction and disposition hearing adjudging three Spirit Lake Nation children—ages 16, 13, and 9—dependent children under Welfare and Institutions Code1 section 300, subdivision (b)(1), and removing them from parental custody pursuant to section 361, subdivision (c)(1).
1 All further unspecified statutory references are to the Welfare and
Institutions Code.
The Santa Clara County Department of Family and Children’s Services (department) filed this dependency action after mother was arrested for driving under the influence with one of the children in the car. The children had relocated with mother to San Jose from North Dakota and were residing in the home of their step-grandmother. The home lacked running water and adequate food, and mother had not enrolled the children in school after their arrival in California. Mother had an extensive history of alcohol abuse, and the children had previously been removed from her care while in North Dakota.
After the children’s initial removal from the home, their 14-year-old sibling left boarding school and began living with mother. He continued residing with mother while the three children were placed in foster homes. The children struggled with behavioral and mental health challenges while in their foster placements (the two older children were hospitalized several times on psychiatric holds), and, although mother participated in substance abuse treatment, she struggled to engage fully with the recommended services and establish safety factors in the home.
At the combined jurisdiction and disposition hearing, the department recommended removal of the children from parental custody, and a qualified expert witness of the Spirit Lake Nation concurred. The juvenile court found that returning the children to mother’s care would create a substantial danger of harm to the children’s physical or emotional safety and ordered reunification services. The court also found that the department had made “active efforts” required by the Indian Child Welfare Act of 1978 (ICWA) (25
U.S.C. § 1901 et seq.) and related California statutes, to prevent the breakup of the Indian family,2 and that those efforts had been unsuccessful.
On appeal, mother contends there is no substantial evidence to support the finding that the children were at risk of serious physical or emotional harm if returned to her, since her other son was allowed to remain at home. Mother also asserts the department failed to prove that it made active efforts to provide her with appropriate services to prevent the breakup of the children’s family.
For the reasons explained below, we affirm the juvenile court’s order.
I. FACTS AND PROCEDURAL BACKGROUND A. Preremoval Background The children Vn. M. (Vn.), Vc. M. (Vc.) and Dr. M. (Dr.) (together, the children) were ages 15, 12, and 8, respectively when the department initiated this dependency proceeding. The children’s brother, Da. M. (Da.) was 14 years old at the time of the jurisdiction and disposition hearing. Mother also had four older children who were adults at the time of these proceedings and did not live with her.
Prior to California, the children lived in North Dakota on the Spirit Lake reservation. In 2017, the Bureau of Indian Affairs (BIA) removed the children from their parents for reasons including domestic violence in the household and substance abuse by both mother and the children’s father.3
2 In accordance with case authority, we use the term “Indian” to reflect
the statutory language of both federal and state law; in so doing, we intend no disrespect and recognize alternative terms such as “American Indian” and “Native American.” (See In re Dezi C. (2024) 16 Cal.5th 1112, 1125 (Dezi C.).)
3 The children’s father, Da. M. (father), is listed in the petition but is
not a party to the appeal. The children reported that they have not had contact with him since 2020. As of the disposition and jurisdiction hearing,
In April 2025,4 shortly before coming to California, mother moved the children from the Spirit Lake reservation to Devil’s Lake, North Dakota. She moved the children from the reservation (and did not want the Spirit Lake tribe notified of the children’s detention by the department) because “the tribe was not helping them.”
B. Dependency Petition and Removal The family came to the attention of the department on May 3, when Mountain View police officers arrested mother on suspicion of driving under the influence after they observed her “speeding and ‘blowing through a red light’ ” with Vc. in the vehicle. Vc. was not physically harmed but later told the social worker that she felt very scared, and before the officers stopped them, mother had hit another vehicle and “panicked and drove off” when the men in the car asked for repair money. Vc. told police officers that mother had been drinking and behaving similarly for the past few days, as well as before they left North Dakota. Police officers released Vc. to the children’s stepfather, who appeared to “ ‘brush . . . off’ ” the officers’ concern about creating a safety plan and stated he was unaware that mother had been drinking when she left with Vc.
The next day, department social workers made an unannounced visit to the family residence and obtained a court order to interview the children. The social worker also spoke further with the children the next day at “The Welcoming Center.”
the department had been unable to locate him. At the July 1, 2025 continued jurisdiction and disposition hearing, the juvenile court found that father was a presumed parent of the children pursuant to Family Code section 7573. In its jurisdiction and disposition order, the court made findings as to father that are not at issue on appeal.
4 Unless otherwise indicated, all dates were in 2025.
The children lived with their stepfather, stepgrandmother, and mother in a two-bedroom home. The children slept in the living room. There was minimal food, an overflowing trash can, and no running water. The family used water from a bottle to flush the toilet, but the bottle was empty and the toilet contained “a pile of human feces.” The social worker observed numerous bug bites (mosquito or flea) and scratches from itching on the arms and legs of Vc. and Dr., and black fingernail tips (suggesting they had not bathed or had their nails trimmed in some time). The children said that they could not remember when they had showered, and it had been “a while” because there was no hot water, and no running water for over a week.
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Filed 9/9/26 In re V.M. CA6
NOT TO BE PUBLISHED IN 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 has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
In re V.M. et al., Persons Coming H053805 Under the Juvenile Court Law. (Santa Clara County Super. Ct. Nos. 25JD028609, 25JD028610, 25JD028611)
SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN’S SERVICES,
Plaintiff and Respondent,
v.
D.W.,
Defendant and Appellant.
D.W. (mother) appeals from a juvenile court order following a joint jurisdiction and disposition hearing adjudging three Spirit Lake Nation children—ages 16, 13, and 9—dependent children under Welfare and Institutions Code1 section 300, subdivision (b)(1), and removing them from parental custody pursuant to section 361, subdivision (c)(1).
1 All further unspecified statutory references are to the Welfare and
Institutions Code.
The Santa Clara County Department of Family and Children’s Services (department) filed this dependency action after mother was arrested for driving under the influence with one of the children in the car. The children had relocated with mother to San Jose from North Dakota and were residing in the home of their step-grandmother. The home lacked running water and adequate food, and mother had not enrolled the children in school after their arrival in California. Mother had an extensive history of alcohol abuse, and the children had previously been removed from her care while in North Dakota.
After the children’s initial removal from the home, their 14-year-old sibling left boarding school and began living with mother. He continued residing with mother while the three children were placed in foster homes. The children struggled with behavioral and mental health challenges while in their foster placements (the two older children were hospitalized several times on psychiatric holds), and, although mother participated in substance abuse treatment, she struggled to engage fully with the recommended services and establish safety factors in the home.
At the combined jurisdiction and disposition hearing, the department recommended removal of the children from parental custody, and a qualified expert witness of the Spirit Lake Nation concurred. The juvenile court found that returning the children to mother’s care would create a substantial danger of harm to the children’s physical or emotional safety and ordered reunification services. The court also found that the department had made “active efforts” required by the Indian Child Welfare Act of 1978 (ICWA) (25
U.S.C. § 1901 et seq.) and related California statutes, to prevent the breakup of the Indian family,2 and that those efforts had been unsuccessful.
On appeal, mother contends there is no substantial evidence to support the finding that the children were at risk of serious physical or emotional harm if returned to her, since her other son was allowed to remain at home. Mother also asserts the department failed to prove that it made active efforts to provide her with appropriate services to prevent the breakup of the children’s family.
For the reasons explained below, we affirm the juvenile court’s order.
I. FACTS AND PROCEDURAL BACKGROUND A. Preremoval Background The children Vn. M. (Vn.), Vc. M. (Vc.) and Dr. M. (Dr.) (together, the children) were ages 15, 12, and 8, respectively when the department initiated this dependency proceeding. The children’s brother, Da. M. (Da.) was 14 years old at the time of the jurisdiction and disposition hearing. Mother also had four older children who were adults at the time of these proceedings and did not live with her.
Prior to California, the children lived in North Dakota on the Spirit Lake reservation. In 2017, the Bureau of Indian Affairs (BIA) removed the children from their parents for reasons including domestic violence in the household and substance abuse by both mother and the children’s father.3
2 In accordance with case authority, we use the term “Indian” to reflect
the statutory language of both federal and state law; in so doing, we intend no disrespect and recognize alternative terms such as “American Indian” and “Native American.” (See In re Dezi C. (2024) 16 Cal.5th 1112, 1125 (Dezi C.).)
3 The children’s father, Da. M. (father), is listed in the petition but is
not a party to the appeal. The children reported that they have not had contact with him since 2020. As of the disposition and jurisdiction hearing,
In April 2025,4 shortly before coming to California, mother moved the children from the Spirit Lake reservation to Devil’s Lake, North Dakota. She moved the children from the reservation (and did not want the Spirit Lake tribe notified of the children’s detention by the department) because “the tribe was not helping them.”
B. Dependency Petition and Removal The family came to the attention of the department on May 3, when Mountain View police officers arrested mother on suspicion of driving under the influence after they observed her “speeding and ‘blowing through a red light’ ” with Vc. in the vehicle. Vc. was not physically harmed but later told the social worker that she felt very scared, and before the officers stopped them, mother had hit another vehicle and “panicked and drove off” when the men in the car asked for repair money. Vc. told police officers that mother had been drinking and behaving similarly for the past few days, as well as before they left North Dakota. Police officers released Vc. to the children’s stepfather, who appeared to “ ‘brush . . . off’ ” the officers’ concern about creating a safety plan and stated he was unaware that mother had been drinking when she left with Vc.
The next day, department social workers made an unannounced visit to the family residence and obtained a court order to interview the children. The social worker also spoke further with the children the next day at “The Welcoming Center.”
the department had been unable to locate him. At the July 1, 2025 continued jurisdiction and disposition hearing, the juvenile court found that father was a presumed parent of the children pursuant to Family Code section 7573. In its jurisdiction and disposition order, the court made findings as to father that are not at issue on appeal.
4 Unless otherwise indicated, all dates were in 2025.
The children lived with their stepfather, stepgrandmother, and mother in a two-bedroom home. The children slept in the living room. There was minimal food, an overflowing trash can, and no running water. The family used water from a bottle to flush the toilet, but the bottle was empty and the toilet contained “a pile of human feces.” The social worker observed numerous bug bites (mosquito or flea) and scratches from itching on the arms and legs of Vc. and Dr., and black fingernail tips (suggesting they had not bathed or had their nails trimmed in some time). The children said that they could not remember when they had showered, and it had been “a while” because there was no hot water, and no running water for over a week.
Vn. reported that she was not enrolled in school but had attended 9th grade in North Dakota and had good grades. She told the social worker that “alcohol is a drink that messes with you and makes you crazy.” Vn. stated that the day before, mother had taken the children to Walmart but on the way home said she needed to stop because she wanted to drink and had left Vn. and her siblings in the car. Mother had returned with two cans of Twisted Tea lemonade and drank some before getting back into the car. Vn. and mother had argued about mother’s drinking, and mother agreed to drop the children at home, but Vc. left again with mother. Vn. reported that mother has at times left them in the car while she goes to bars, and that when mother is drunk, Vn. is the one who takes care of her. Vn. was worried about mother’s drinking and about mother’s mental health and shared that when they were living in North Dakota, mother had told her she wanted to die and had tried to hurt herself with a sharp object.
According to Vn., mother drinks when she gets upset with stepfather, and the two of them argue almost every day. Vn. reported that mother smokes “ ‘weed’ ” outside in the backyard and that she always has alcohol and
marijuana with her in the car. In North Dakota, she and her siblings had been “ ‘taken away’ ” from their father and put in foster care because he abused them and mother. Vn. did not believe mother’s drinking would ever stop. Vn. reported that mother had told her alcohol addiction “ ‘runs deep in our family.’ ”
Vc. reported that she stayed in the car with mother after mother dropped Vn. and Dr. at home because Vc. was worried something bad could happen to mother. Vc. told the social worker that mother drank a lot, approximately 10 to 15 cans of Twisted Tea, and that stepfather and mother argue because he does not want mother to drink. Vc. explained that mother did not physically discipline the children but would threaten to drink if they did not listen. She also reported that mother smokes marijuana with stepfather in the backyard, and that stepgrandmother also smokes marijuana. Mother also takes pills. Vc. did not know what the pills were for but thought they calmed mother down. Vc. shared that she and her siblings were in foster care for approximately two or two and one-half years in North Dakota, and she has another brother who is in boarding school. She stated that, when they lived in Spirit Lake, mother wanted to kill herself with a sharp object. Vc. reported that she and her siblings have blankets and sleep on the floor and do not eat breakfast at home because there is not any food to eat. Vc. stated that she has not gone to the dentist or the doctor for about two years.
Dr. told the social worker that Vn. and mother got into an argument “yesterday” while mother was driving, and mother dropped him and Vn. at home. Vc. left with mother again. Dr. reported that mother drinks alcohol “a lot,” the last time he saw her drink was when she drank two Twisted Teas, and he has lost count of how many times she has driven with them after
drinking alcohol. Dr. asked when mother would come home and said he felt hungry because he had only had a soda and a sandwich from Safeway that day. He reported that mother smokes in the backyard with stepfather every day, and they allowed Vn. to smoke with them. Dr. reported that he does not go to school and watches movies all day. He gets scared when stepfather and mother get into arguments, and he does not feel comfortable when stepfather is angry.
The children each reported feeling safe under the care of stepfather and stepgrandmother, but afraid and unsafe around mother when she is drinking. All three reported that mother did not physically hit, shove, or push them, nor did they see stepfather physically pushing, shoving or hitting.
Stepfather reported that he and mother had been married since 2021, and mother and the children moved in one month ago. Stepfather knew that mother struggled with alcohol in the past but was not aware, until her arrest, that she had started drinking again. He stated that he would not allow her to drink and drive with the children. Stepfather had served 10 years in prison (from 2008 to 2018) and was unemployed. Mother also was not employed but was looking for a job, and the family was using money from a truck they sold in North Dakota. The children were not yet enrolled in school, and mother was receiving CalFresh benefits and was in the process of getting MediCal for them. Stepfather stated that he and mother smoked marijuana in the backyard while the children were safe inside the house; they did not use any other drugs. Stepfather agreed to work on a safety plan for when mother returned home. He reported that when the children were in foster care in North Dakota, he and mother worked hard to get the children back.
Stepgrandmother showed the social worker the two-bedroom home.
She allowed the family to live with her because they had no other place to live and she did not want them to be on the street. Stepgrandmother was aware of mother’s drinking history, and her son (stepfather) stops mother from drinking. The day prior was the first time that stepgrandmother had witnessed mother drinking. As to running water and food, stepgrandmother reported that she did not have enough money to pay the water bill and had a broken pipe. She stated that the children had cereal with milk for breakfast, but there was no milk in the refrigerator, and the cereal box was empty. She did not have snacks for the children and told the social worker that the children had finished all the food they had that day. Stepgrandmother did not show the social worker the bedrooms; she explained that her husband had passed away in one of the bedrooms a few years ago and she never allowed anyone to enter it.
That evening, the children were taken into protective custody. Mother was released from custody but placed on an involuntary psychiatric hold for being gravely disabled due to alcohol abuse.
Mother was released the next day and spoke with the social worker.
She acknowledged that the children were removed from her care due to her drinking and driving with a child in the car. Mother explained that she had had a child welfare case in 2020 in North Dakota, due to her drinking and to the children’s father’s drug use. At that time, she participated in outpatient and counseling services while the children were home with her. Mother later told the social worker that father was very abusive to her in front of the children, he did not do anything to get the children back when they were removed, he allowed Vn. and Vc. to be sexually abused, and she had full custody. Mother stated that she has been diagnosed with depression,
anxiety, posttraumatic stress disorder, and high blood pressure. She was prescribed 25 milligrams of Zoloft but was not taking it daily so that it would last until their MediCal insurance started. Vc. and Dr. were both diagnosed with attention deficit hyperactivity disorder (ADHD) but were not taking medication until they could get it through MediCal.
On May 6, the department filed a juvenile dependency petition under section 300, subdivision (b)(1) as to all three children, and, on August 8, filed separate, first amended dependency petitions for each of the children (together, petitions). The petitions alleged that the children were at substantial risk of serious physical harm (§ 300, subd. (b)(1)) and were placed into protective custody because of mother’s alcohol abuse. Additional allegations pertained to mother’s extensive history of alcohol abuse and prior child welfare involvement in North Dakota, her continued use of marijuana, the children’s removal from father’s care in North Dakota due to concerns of abuse, Vc.’s diagnosis of fetal alcohol syndrome and mother’s failure to adequately supervise or protect her or take care of her special needs, and Vn.’s self-harm behaviors and history of marijuana use.
On May 7, mother filed notice of the children’s Indian status, declaring their membership in the Spirit Lake Nation. The juvenile court held a hearing on the petition. Mother and the children were present at the hearing with their court-appointed counsel. A representative of the Spirit Lake tribe appeared by telephone and stated that the tribe planned to intervene in the case but was not requesting transfer to the tribal court.5 The representative
5 The juvenile court in this matter later determined—after consulting
with judicial officers of both the Spirit Lake Tribal Court and Ramsey County, North Dakota—that it had continuing jurisdiction over the children under the Uniform Child Custody Jurisdiction and Enforcement Act (Fam. Code, § 3400 et seq.). Mother does not challenge that determination.
confirmed that the prior child welfare case for the family was under the jurisdiction of the Spirit Lake Tribal Court.
The department addressed ICWA’s requirements related to placement of the children, acknowledging that “active efforts were not provided prior to the removal given the emergency nature of the removal” but that the department would continue to make active efforts going forward to try to avoid the children’s removal at disposition. The department sought a temporary good cause finding for deviating from ICWA placement preferences. Counsel explained that the children were placed together temporarily in an out-of-county licensed foster home and that the department would work with the family and Spirit Lake tribe to identify “ICWA compliant placement as soon as possible.” Through her counsel, mother stated that she understood the concerns of the department and took the allegations seriously. Because she also was facing criminal charges, she would not address the specific allegations but was “absolutely willing to work with the [d]epartment as if the allegations are true.”
The juvenile court ordered the children’s continued detention, finding it necessary to prevent imminent physical harm to the children and no reasonable means of protecting them short of removal. The court ordered the department to make “ongoing active efforts to work with the Spirit Lake Tribe and the family to locate an ICWA compliant placement.” It also ordered that mother be provided supervised visits once weekly for a minimum of four hours.
C. Jurisdiction and Disposition The juvenile court continued the jurisdiction and disposition hearing (hearing) several times in May, June, July, and August. Matters addressed during the continued hearings included the court’s continuing jurisdiction,
mother’s request that the children be returned to her care and for a contested hearing, and stepfather’s request to be granted presumed father status (which the court denied after considering testimony and the arguments of counsel).
During this period, the department continued to investigate appropriate placements for the children and facilitate mother’s participation in services and reunification efforts. All three children experienced significant mental health and behavioral issues while in foster care.
1. Disposition Report and Addenda (May – October)
The department’s June 23 disposition report (June 23 report)
recommended that the juvenile court sustain the section 300, subdivision (b) petition as to all three children, declare the children dependents of the juvenile court, and provide reunification services for the parents. Together with the May 28 jurisdiction report and addendum reports for June, August, September, and October, the department provided a detailed account of the family’s history and challenges in North Dakota, the children’s mental health and behavioral struggles while in foster care, mother’s engagement with services, and the department’s efforts to identify appropriate services and foster placements.
a. The Children
The children were placed on May 5 in an emergency foster home in Merced County. The caregiver reported that Vc. and Dr. fought constantly and required close supervision. She also reported that 12-year-old Vc. and 8- year-old Dr. presented as much younger than their ages, and the pediatrician recommended an evaluation for developmental delays.
Mother reported that Vc. and Dr. were each diagnosed with ADHD and required medication. Vc. was also diagnosed after birth with fetal alcohol
syndrome. Dr. had a speech delay and behavioral challenges, and it was discovered upon his enrollment in summer school that he did not know how to read. The school inquired whether Dr. had an Individualized Education Plan (IEP) and stated that a regular classroom would be unable to meet his needs. In mid-June, Dr. was evaluated by a psychiatrist who cited Dr.’s “ ‘extreme behavior and aggression’ ” at summer school and indicated possible diagnoses of autism and fetal alcohol syndrome. In early September, the caregiver reported that Dr. was doing “so much better this school year” and “ ‘much better with therapy and his medication.’ ” Dr.’s caregiver reported in October that he was at times emotional and cried, regularly expressed wanting to return to mother’s care, and told his caregiver that he wished mother did not drink alcohol. In late October, the social worker inquired with Dr.’s medical team whether he was ready to start participating in family therapy but had not yet received a response as of the disposition hearing.
Vn. and Vc. were both hospitalized during their foster placement. On June 2, Vn. was hospitalized when the caregiver discovered she had cut her arms and face with a screw from the bed. Vn. was discharged on June 13 but readmitted on June 14 due to self-harming behaviors. Vn. remained hospitalized as of the June 23 report.
On June 13, Vc. was placed on a psychiatric hold in a separate hospital and remained there as of the June 23 report. The caregiver expressed concerns about caring for two teenage girls with self-harm behaviors and thought it appeared the girls “had a pact” to go to the hospital. As of the June 23 report, the department had been unsuccessful in identifying foster placements that could care for Vn. and Vc. upon their release from the hospital, even if they were separated. The Spirit Lake tribal representative agreed to continue trying to identify potential placements and kinship names.
Mother and stepfather also agreed to provide relative names and phone numbers to the department for potential placements.
The social worker asked mother about scars that she observed on Vn.’s arms. Mother stated that Vn. had a history of cutting herself, and that she had taken Vn. to the hospital in North Dakota due to her cutting behavior, but Vn. was not receiving services because that would have required her to transport Vn. to a different state. When they moved to California, mother “ ‘just left it alone.’ ”
Vn. acknowledged having thoughts of harming herself but stated she was not having those thoughts at present. Vn denied using alcohol or drugs. Vn. later told the caregiver that mother and stepfather allowed her to smoke marijuana with them “because[] ‘[she] was miserable.’ ” Mother denied allowing Vn. to smoke with her and stepfather but stated that she knew Vn. smoked marijuana with her friends in North Dakota.
After Vn. was discharged from the hospital in late June, the department placed her in one of Santa Clara County’s transitional shelter care facilities, a licensed facility for temporary stays for children lacking an available foster placement. In August, the department placed Vn. in a specialized foster home, which was a time-limited placement through mid- October. Vn. experienced additional hospitalizations in late July and mid- August. Vn. disclosed to the medical worker that she was feeling bad about being in foster care and felt responsible for mother’s DUI.
During her hospitalization in June, Vc. was diagnosed with unspecified mood disorder and ADHD, combined type. Vc. reported feelings of depression, anxiety, hopelessness, worthlessness, and suicidal ideation. After Vc. was discharged from the hospital, she returned to her former placement with Dr. in Merced County.
In early August, Vc. disclosed to a clinician that she was afraid to share her trauma history and feelings because it would get mother into trouble and she would not be able to reunify with mother. The clinician also reported concerns about Vc. presenting as a much younger child and stated that she would refer her for a comprehensive assessment as she was not qualified to make a developmental diagnosis.
In late August, Vc. attacked her therapist while screaming that she was going to kill her (the therapist), that all she wanted was to see her mother and why is she (mother) cancelling visits, and that no one was helping her. Vc. was placed on a psychiatric hold, and the caregiver informed the department that she would not be able to take Vc. back after she was discharged because she did not think she could keep Vc. safe. Vc. was discharged from the hospital shortly after and was admitted to a transitional shelter care facility. Vc. told the caregiver that she wanted to go to court to tell the judge that she, Dr., and Vn. should return to their mom, and that everyone is doing everything against mother and mother thinks it is her (Vc.’s) fault.
In early October, mother cancelled a meeting with Vc.’s providers due to not feeling well, and upon arriving at the meeting Vc. repeatedly expressed frustration that mother was not there. Mother commented, during a visit with Vc. shortly after the missed meeting, that Vc.’s eyes looked “ ‘weird’ ” and she was not happy about all the new medication Vc. had been prescribed. The next week, Vc. refused to meet with her psychiatrist or take her medicine, stating her mother told her that she was taking too much medicine. The social worker had inquired with Vc.’s service providers if she had started individual therapy and if she was ready for family therapy but had not received a response as of the disposition hearing.
b. Mother
Shortly after the initial hearing in May, mother reported that she had started outpatient substance abuse treatment. A client status report from the treatment program in early August indicated that mother had been attending sessions weekly since mid-May 2025 and had attended six of 12 group therapy sessions. Mother’s drug tests for mid-May through early August were positive for marijuana and negative for any other substance or alcohol. Mother also was wearing an electronic ankle monitor (in connection with her pending criminal case) that monitored for alcohol. In mid- September, mother pleaded no contest to charges of driving under the influence with a child under the age of 14 in the vehicle and was sentenced to three years of informal probation and ordered to complete a three-month alcohol offender class.
In August, mother had six unexcused missed drug tests and stopped testing on August 8. Mother reported mid-August that she had suffered a “ ‘mini stroke’ ” and was admitted to the hospital and discharged on August 16. This affected mother’s participation in her case plan, and she reported to the social worker on August 25 that stepfather had had seizures and was in the hospital. Mother stated that she was trying to get back on track but failed to provide the social worker with the requested doctor’s note to confirm any medical restrictions from her stroke and did not provide requested updates on stepfather’s health status.
As of early September, mother had not provided any documentation of her participation in 12-step meetings. Also around that time, shortly after the resolution of mother’s criminal case, the department social worker made an unannounced home visit to stepgrandmother’s house where mother was residing and observed a strong odor of alcohol in front of the home and a beer
can beside the door. Mother’s ankle bracelet had been removed earlier that day. Stepgrandmother stated that she brought the beer can home for recycling and that “ ‘no one here drinks.’ ”
Mother completed additional drug tests in late September and October, with two missed unexcused tests (which the department presumes positive for alcohol). Her drug tests were positive for marijuana and negative for other substances. Mother completed her outpatient treatment program in early October. The service provider reported that mother smelled like marijuana at her last group session and mother’s “ ‘decision to use marijuana is pre-contemplative behavior and she appears to be at continued risk of relapse without a structured environment or mandates.’ ” The department recognized mother’s efforts in beginning treatment to address her long history of alcohol abuse and mental health challenges. But mother was early in her sobriety, had not participated in AA meetings, obtained a sponsor, or started therapy. Mother needed to solidify a relapse prevention plan, understand her triggers to prevent relapse and maintain sobriety, and address her use of marijuana in lieu of alcohol. The department also noted concerns about mother’s relationship dynamic with stepfather, as all the children reported that stepfather has anger issues, and he and mother argue constantly. Stepfather reported that their arguments were about mother wanting to drink, and he would prevent her from drinking. Mother was scheduled to begin the “Celebrating Families” class on September 25.
As of October, mother had identified a sponsor who had agreed to support mother in attending AA meetings, but mother had not yet attended any meetings. Mother was participating in the Celebrating Families class and had also elected to participate in a special needs class. She also reported
that she had been hired to work at Safeway and was waiting to obtain her schedule.
The department connected mother with behavioral health services and confirmed that she had been receiving treatment since mid-May for generalized anxiety and major depressive disorder. Mother was taking medication, which she reported was helping her emotional stability and ability to communicate, but she had not begun therapy. Mother acknowledged that she made a mistake by not planning so that she had appointments and medication for the children when they arrived in California. She also admitted that she had not enrolled them in school, as she was trying to secure housing. Mother’s rehabilitation counselor at behavioral health services was in the process of trying to connect her with a therapist.
In early August, the social worker re-referred mother to the Indian Health Center, where she had previously been referred by the ICWA social worker. Mother completed a screening and signed a release of information with Ms. Yellowhorse, a Native American therapist, but as of mid-October, mother had missed her first two appointments to complete an intake. Ms. Yellowhorse had called mother to reschedule the intake, but mother had not yet returned her call. Ms. Yellowhorse confirmed that, once mother has completed her intake, she could be scheduled for weekly therapy sessions and provided additional support, including traditional healers. The social worker spoke with mother and offered to call Ms. Yellowhorse using a three-way call and to inquire about obtaining a medical doctor through Indian Health Center. Mother declined the assistance and indicated that she still had the phone number. In a follow-up call with the social worker on October 21,
mother stated that she had called Ms. Yellowhorse and had an appointment scheduled for the next week.
The department learned that mother had three convictions in North Dakota for driving under the influence, including in August 2024 and January 2025 (within one year of the incident giving rise to the children’s removal in California). In May, mother informed the social worker that the children’s sibling Da. had left boarding school and moved in with her at the home with stepfather and stepgrandmother. The department social worker documented concerns about mother’s capacity to care for Da., who was 14 years old, given the recent removal of the other children and mother’s history of alcohol abuse, limited food in the home, and living conditions. The department was not aware at that time whether Da. has any developmental, medical, or mental health conditions or diagnoses. A referral was made to assess Da.’s safety in the home.
In mid-September, the department social worker spoke with another individual (“Ms. Murphy”), identified by mother as a support person. Ms. Murphy resided in North Dakota, was also a member of the Spirit Lake tribe, had grown up with the children’s maternal grandmother, was in communication with mother, and confirmed that she would be a support person and that mother could call her “ ‘day or night.’ ” Ms. Murphy was not a placement option for the children due to her family obligations and explained that maternal grandmother also could not be a placement as she was residing with a registered sex offender. Ms. Murphy was not aware of any tribal or ICWA services or classes that were accessible online.
In another conversation with department social worker, Spirit Lake’s interim director of tribal social services confirmed the information about maternal grandmother (that she could not serve as a potential placement due
to living with a registered sex offender) and indicated that the tribe was not able to assist mother without mother’s consent, since mother had refused to work with tribal social services.
2. Hearing
The juvenile court held the hearing over five days in September and October. Mother’s counsel clarified that mother was not contesting jurisdiction but was contesting the petitions’ allegations. Mother was requesting the return of the children on a plan of family maintenance. Counsel for the children joined the department’s recommendation as to disposition.
The juvenile court heard testimony from mother, stepgrandmother, department social worker, and Melissa Lourens, a qualified ICWA expert from the Spirit Lake Nation. The court also granted a request by minors’ counsel to exclude Vn. and Vc. from being present at the contested hearing. The court recognized Vn.’s and Vc.’s right to be present but agreed with their counsel that, under the circumstances and given concerns about their mental health histories and potential for escalation, their best interests warranted their exclusion a. Mother
Mother testified that she struggles with memory issues, including after her hospitalization for a minor stroke. Mother described her history in North Dakota, including her 12-year relationship with the children’s father, substance abuse and physical abuse, marrying stepfather, who helped her reunify with the children, and moving from the reservation to Devil’s Lake, and to California at the end of March. Mother began drinking alcohol at the age of 12 years old; the longest period of sobriety she has maintained as an adult was two years.
Mother had enrolled the children in medical insurance but acknowledged that she was still in the process of finding housing and had not yet enrolled them in school. She believed that if she had had more time, she would have done so, as she had done for Da. after his arrival in San Jose on May 9. Da. was attending high school regularly, and mother had enrolled him in a program to help with school supplies and lunches, since she was still looking for work. She felt confident she could do the same for the children once returned to her. Da. does not have any mental health or behavioral health diagnoses. Da. did have a physical altercation with another youth while in school at the time in South Dakota, which landed him in juvenile detention for one week. She believes that Da. could benefit from therapeutic services but had not yet enrolled him.
Mother identified herself as a chronic alcoholic with extensive family history of alcoholism. She testified that she takes accountability for the trauma caused to her children due to her alcoholism and “that’s why [she is] willing to participate in therapy, family therapy, anything to help to fix this problem.” Mother is working on her sobriety daily, which is harder without the ankle monitor, but she is using her support people including stepfather, stepgrandmother, and her sponsor. Mother denied that she used alcohol after her ankle monitor was removed, asserting the beer can in front of the house was from stepgrandmother collecting recycling for cash.
Mother has taken up doing beadwork to alleviate stress. She explained that she had several deaths in the family (two cousins and an uncle), and stepfather was hospitalized twice during the course of these proceedings, but she has not relapsed. The social worker had asked mother for documentation so she could make accommodations to her case plan, but mother had not provided what she asked. Mother was in touch with her sponsor, had started
the 12-step program, and was engaged in outpatient services. Mother acknowledged using marijuana in the evenings outside where she does beadwork. She does it privately with stepfather, away from Da., who is inside. She does not feel that using marijuana has impacted her ability to parent Da. or make good decisions.
Mother acknowledged driving with Vc. on May 3. She agreed that she has gotten angry and driven intoxicated with the children but denied that she has ever threatened the children with drinking when they did not listen. Mother stated that an argument with stepfather had triggered her on the day of her arrest, and since then she and he have been working on taking accountability. Mother has been taking her psychiatric medication and feels that it helps her, and she has been trying to begin individual therapy.
Mother believes that she can keep the children safe at this stage in her sobriety. She is not currently driving and does not have access to a vehicle. She takes the bus and has support to help her, including stepfather, her brother-in-law and mother-in-law, and has even reconnected with her own mother. Mother was open to taking classes for parenting children with special needs, and for parenting teenagers. The department had not offered those classes. Mother would allow professionals into the home to help support her and the children. She is open to creating a safety plan around marijuana use and has been trying to use less frequently.
Mother was concerned for Vn., who had self-harmed before but “not like this.” The hospital in North Dakota had suggested a program for Vn. in Minnesota, but mother decided to come to California. Mother and stepfather had not had a chance to get Vn. resources to help her before she was removed. Since Vn. was taken, Vn. has run away from her foster home and been hospitalized numerous times. Mother testified she was afraid that, if
Vn. was not reunified with her soon, mother would receive a call from police that Vn. had passed away.
Mother explained that Vc. had fetal alcohol syndrome and ADHD. Vc.
was assessed for an IEP in North Dakota, and mother attended those meetings. Vc. did well in school while taking her ADHD medication, and under mother’s care she had never been aggressive or threatened anyone. Mother testified it was “upsetting. It’s behaviors that I’ve never seen before with both of my girls.”
Mother testified that Dr. was “a late bloomer,” did have an IEP “at one point in time,” and was taking medication for ADHD. She believed his sadness and emotions were due to Vc. leaving the foster placement so that he was without any siblings, and that he wanted to return home to her and stepfather.
b. Stepgrandmother
Stepgrandmother described her relationship with the children, initially meeting them through video calls. In March, stepgrandmother was able to fly to North Dakota and help her son, who had seizures, drive back to California with the children and mother. The intent was for them to live temporarily at her home, until they (mother, stepfather, and the children) got their own housing. Stepgrandmother explained that mother did not enroll the children in school, as school would have ended within 30 or 45 days of the children’s arrival, and mother did not know what district to enroll them since she did not know yet where they would be living.
If the children are reunified, stepgrandmother would allow them to live with her. She would open the second room and allow the girls to sleep there. She works long hours for a retractable screen door company, but she currently helps with Da. when he gets home from school. Stepgrandmother
has participated in one of the child and family team meetings but did not recall any discussion of formulating a safety plan. Stepgrandmother had also participated in a recent visit with Vc. and Dr. She would allow the department to inspect the home, so long as her son or mother is there. Stepgrandmother agreed that, because of the water being off, her home was not appropriate for the children at the time they were removed.
Neither stepgrandmother nor her son uses alcohol. On cross-
examination, stepgrandmother stated that she began using marijuana when she was undergoing cancer treatment, which is over but she still uses marijuana a few times a week for pain. She keeps the marijuana locked in a drawer in her room.
c. Department Social Worker Department social worker Silvia Rodriguez testified as an expert in risk assessment, child welfare investigations, and the provision of services in child welfare cases. Rodriguez has been the assigned social worker for the children’s dependency case since shortly after they were placed into protective custody. Rodriguez opined that mother was not “solidly in her recovery” because mother continued to struggle with substance abuse issues, following through on her appointments, and had not fully engaged in all the recommended services. Rodriguez believed that mother’s marijuana use impacted her ability to meet the children’s needs. The children’s mental health and behavioral needs were “extensive” and required a parent who “can be readily available to respond to any crisis or emergency[,] and marijuana use can . . . impact a parent’s ability to respond.” Rodriguez explained that each of the children had needs that required “an active parent” who is readily available and able to supervise the children at all times. Failing to do so could result in serious bodily harm or even death to the children, given both
girls’ mental health issues and expressions of suicidal ideology and acts of self-harm. Rodriguez also opined that mother’s ongoing mental health and substance abuse issues adversely affected mother’s ability to follow through on daily tasks.
Rodriguez testified that the case has remained longer than is typical in the dependency investigation phase, and during that time she has made active efforts to connect mother to supportive resources. These efforts included connecting mother with the department’s ICWA social worker who “provided her with resources that are native in our community,” asking mother if there were any specific services she might need, and speaking with several members of the Spirit Lake tribe to ask about possible resources that could be provided virtually. However, the tribe did not identify any such resources.
Rodriguez further testified that she did not believe that stepgrandmother and stepfather were able to ensure the children’s safety if they were returned home. Rodriguez made many attempts to contact stepgrandmother and had difficulty scheduling time to speak with her. They did eventually speak, and stepgrandmother participated in one child and family team plan. Rodriguez was concerned that stepgrandmother was not home during the day, did not acknowledge there were concerns in her son’s relationship with mother, did not think the children had behavioral health concerns, and had expressed a desire on weekends to “kickback with her Adderall and do her laundry.” Rodriguez similarly had concerns about stepfather’s ability to be a safety person for mother and the children. Stepfather had exhibited short tempered behavior in interviews with the department, had walked out of at least two meetings, and became “escalated” when the social worker raised concerns about visitation. The children
additionally reported ongoing arguments between stepfather and mother and stated that they would want to return home if mother and stepfather stopped arguing.
The department’s recommendations for mother included a parent orientation, two parenting classes (“Celebrating Families” and “Parenting Children with Special Needs”), individual and family therapy, drug and alcohol testing, participation in 12-step meetings, a substance use treatment assessment, after care services, and a relapse prevention plan. Mother had completed the parent orientation and was in the process of starting on or proceeding with each of these case plan elements. Although mother was participating in services, Rodriguez opined that it had not translated into returning the children home because “the reasons or the exposure to her kids continues to be the same.”
On cross-examination, Rodriguez stated that she and the ICWA social worker had provided mother with resources (i.e., given her the phone numbers for behavioral health for therapy) and had not called with her or accompanied her to intake appointments because mother indicated she could call the providers. Rodriguez asserted that the reason mother had not started therapy “wasn’t because we didn’t provide her with the resources. She lacked the ability to follow through and obtain the resource – the actual therapy.” Rodriguez stated that while Da. remained in the home, the department social worker who conducted an assessment of Da. in the home determined the risk to be “moderate.” Rodriguez has the same concerns for Da.’s safety as she has for all the children.
D. Tribal Representative Melissa Lourens is employed by the Spirit Lake tribe as an in-home family service specialist and testified as a qualified expert witness on ICWA.
Lourens is also a member of the Spirit Lake tribe. Lourens opined, based on her review of the case file and the hearing testimony, that mother “hasn’t progressed enough” in her case plan and treatments and has not shown “an adequate period of sobriety and thoroughly addressed her mental health issues.” Lourens noted that mother had not completed the 12-step program or all the recommendations of the case plan.
Lourens testified that the department had provided mother with appropriate services and programs and made active efforts to prevent the breakup of the family. She stated that the tribe did not have any other potential placement options for the children at this time, and, given the circumstances of the case, there was good cause to deviate from the ICWA placement preferences. Lourens agreed on cross-examination that the children were struggling in their foster and transitional placements but did not think they could safely be returned to mother until mother had progressed further in her case plan. Lourens agreed with the department’s recommendation to continue reunification services to help mother move toward reunification.
3. Juvenile Court’s Ruling On October 24, after considering the testimony and arguments of counsel, the juvenile court issued its order on jurisdiction and disposition. The court commended mother for her openness, honesty, and trustworthiness in testifying about her challenges and “not hiding from the facts” of the struggles she faces. It found that mother loves her children “very very much” and that they love her as well. Nevertheless, the court found that mother needed to resolve those issues that had brought the dependency to the court before it could return the children home.
The juvenile court found the allegations of the petitions true as alleged, that the children have behavioral health needs and there was a lapse in enrolling them in school, and that, even as mother has begun engaging in helpful activities like beading, walking, and social services, the children are not “safe.” The court found that the department had met its burden, by clear and convincing evidence, that the children’s welfare required that physical custody be taken from mother and that there would be a substantial danger to the children’s physical or emotional safety if they were returned to mother’s physical custody. The court found, as to Vn., that she had self- harming behavior and a history of marijuana use, and the failure or inability to meet her needs places her at substantial risk of serious physical and emotional harm in mother’s care. It sustained the allegations of the petitions as to all three children.
The juvenile court further found good cause to deviate from ICWA preferences, as there was no appropriate tribal placement—as confirmed by the qualified tribal expert—and reasonable efforts had been made to prevent the need for removal of the children from their home. It also found, by clear and convincing evidence, that active efforts had been made to provide remedial services and rehabilitation programs designed to prevent the breakup of the Indian family. It found that “those efforts have proved unsuccessful as of now” and that placement outside of the county was authorized due to the special needs of the children. The court encouraged the department to continue its efforts to safety plan, including with stepgrandmother (whom the court found to be credible at times, though her availability was limited).
The juvenile court adopted the case plan and ordered reunification services, including supervised weekly visits with mother for a minimum of
four hours. The court gave the department full discretion to increase the frequency of visitation, including a recommendation to accommodate a mid- week phone call as requested by mother’s counsel. Counsel for the children joined the request for supervised mid-week phone calls. The court set a sixmonth review hearing for April 15, 2026.
II. DISCUSSION
Mother raises two issues on appeal. She contends that the juvenile court’s order for removal of the children at disposition was unsupported, where mother had another minor child (Da.) who was similarly situated yet allowed to remain in mother’s custody and where the law requires significantly heightened efforts to avoid the removal of Indian children compared to non-Indian children. Mother also maintains that the department failed to make active efforts, as required by ICWA and California law, to provide appropriate remedial services and rehabilitative programs to prevent the breakup of the Indian family.
A. Legal Principles “ ‘ “A dependency proceeding under section 300 is essentially a bifurcated proceeding.” [Citation.] First, the court must determine whether the minor is within any of the descriptions set out in section 300 and therefore subject to its jurisdiction.’ [Citation.] Section 300, subdivision (b)(1), authorizes a juvenile court to exercise dependency jurisdiction over a child if the ‘child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent . . . to adequately supervise or protect the child.’ ” (In re E.E. (2020) 49 Cal.App.5th 195, 205 (E.E.).)
“[I]f the court exercises jurisdiction over the minor, it must decide the appropriate disposition. Generally, the court chooses between allowing the
child to remain in the home with protective services in place and removing the child from the home while the parent engages in services to facilitate reunification.” (E.E., supra, 49 Cal.App.5th at p. 205; see Michael G. v. Superior Court (2023) 14 Cal.5th 609, 624.) Removal requires clear and convincing evidence of a substantial danger to the child, based on one of the grounds specified by the Legislature, and no reasonable way to protect the child in the home. (§ 361, subd. (c)6; see In re Henry V. (2004) 119 Cal.App.4th 522, 525); E.E., at pp. 205–206.) The specified ground for removal in this case is “[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parent’s, guardian’s, or Indian custodian’s physical custody.” (§ 361, subd. (c)(1).) The court must consider whether “[r]easonable efforts have been made to prevent removal.” (Cal. Rules of Court, rule 5.695(d)(1).)
In a dependency proceeding involving a confirmed Indian child, additional protections and standards apply under both California and federal law. “Congress enacted ICWA in 1978 ‘to protect the best interests of Indian children and to promote the stability and security of Indian tribes and
6 Section 361, subdivision (c) states, “A dependent child shall not be
taken from the physical custody of their parents, guardian or guardians, or Indian custodian with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following circumstances listed in paragraphs (1) to (5), inclusive, and, where it is known or there is reason to know that the child is an Indian child, as defined by” statute. Section 224.1, paragraph (6) defines “the term ‘Indian child’ ” in relation to being a member or citizen of an Indian tribe, or being eligible for membership or citizenship and a biological child or a member or citizen. (§ 224.1, subd. (b)(1)(A), (B).))
families . . ..’ (25 U.S.C. § 1902.)” (In re A.L. (2015) 243 Cal.App.4th 628, 637 (A.L.).) In 2006, the Legislature amended California’s statutes “to bring them into greater conformity with ICWA.” (Ibid.; see Dezi C., supra, 16 Cal.5th at pp. 1130–1131.) The state is required to apply that law which provides greater protection to the rights of the parent or Indian custodian of an Indian child. (25 U.S.C. § 1921.)
Those requirements include that a party seeking an involuntary foster care placement of an Indian child must first 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); § 361.7, subd. (a).) The department must document the active efforts “in detail in the record.” (§ 361.7, subd. (a); see also 25 C.F.R. § 23.121(b).)
“What constitutes active efforts shall be assessed on a case-by-case basis” (§ 361.7, subd. (b)), considering “the prevailing social and cultural values, conditions, and way of life of the Indian child’s tribe” and utilizing “the available resources of the Indian child’s extended family, tribe, tribal and other Indian social service agencies, and individual Indian caregiver service providers” (ibid.).
“ ‘Active efforts’ means affirmative, active, thorough, and timely efforts intended primarily to maintain or reunite an Indian child with their family. If an agency is involved in an Indian child custody proceeding, active efforts shall involve assisting the parent, . . . through the steps of a case plan and with accessing or developing the resources necessary to satisfy the case plan. To the maximum extent possible, active efforts shall be provided in a manner consistent with the prevailing social and cultural conditions and way of life of the Indian child’s tribe and shall be conducted in partnership with the Indian
child and the Indian child’s parents, extended family members, Indian custodians, and tribe. . . . Active efforts shall be tailored to the facts and circumstances of the case and may include, but are not limited to . . .: [¶] (1) Conducting a comprehensive assessment of the circumstances of the Indian child’s family, with a focus on safe reunification as the most desirable goal. [¶] (2) Identifying appropriate services, . . . and helping the parents overcome barriers, including actively assisting the parents in obtaining those services. [¶] (3) Identifying, notifying, and inviting representatives of the Indian child’s tribe to participate in providing support and services to the Indian child’s family and in family team meetings, permanency planning, and resolution of placement issues. [¶] (4) Conducting or causing to be conducted a diligent search for the Indian child’s extended family members, and contacting and consulting with extended family members regarding possible placements and to provide family structure and support for the Indian child and the Indian child’s parents.” (§ 224.1, subd. (f).)
In granting such a foster placement, the juvenile court must also determine, “supported by clear and convincing evidence, including testimony of a qualified expert witness, as defined in [s]ection 224.6, 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.” (§ 361.7, subd. (c); 25 U.S.C. § 1912(e).) The evidence “must show a causal relationship between the particular conditions in the home and the likelihood that continued custody of the child will result in serious emotional or physical damage to the particular child who is the subject of the child-custody proceeding.” (25 C.F.R. § 23.121(c); see In re Collin E. (2018) 25 Cal.App.5th 647, 658.)
Under section 224.6, a “ ‘qualified expert witness’ ” for purposes of an Indian child custody proceeding “shall be qualified to testify regarding
whether continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child and shall be qualified to testify to the prevailing social and cultural standards of the Indian child’s tribe. A person may be designated by the child’s tribe as qualified to testify to the prevailing social and cultural standards of the Indian child’s tribe. The individual may not be an employee of the person or agency recommending foster care placement, . . . or termination of parental rights.” (Id., subd. (a); see 25 U.S.C. § 1912(e).)
B. Standard of Review “ ‘In reviewing the jurisdictional findings and the disposition, we look to see if substantial evidence, contradicted or uncontradicted, supports them. [Citation.] In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court’s determinations; and we note that issues of fact and credibility are the province of the trial court.’ ” (In re R.T. (2017) 3 Cal.5th 622, 633; see In re I.J. (2013) 56 Cal.4th 766, 773 (I.J.).)
The appellant bears the burden to show that the juvenile court’s finding is not supported by substantial evidence. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.) “The term ‘substantial evidence’ means such relevant evidence as a reasonable mind would accept as adequate to support a conclusion; it is evidence which is reasonable in nature, credible, and of solid value.” (In re J.K. (2009) 174 Cal.App.4th 1426, 1433; In re Veronica G. (2007) 157 Cal.App.4th 179, 185.)
In assessing the sufficiency of the evidence to support the findings requiring clear and convincing evidence, we do not “ ‘ “reweigh the evidence or express independent judgment” ’ ” but rather we determine whether a
reasonable trier of fact could have found for the respondent based on the whole record. (I.J., supra, 56 Cal.4th at p. 773.) We do so while bearing in mind the “high probability demanded by” the “clear and convincing” standard of proof. (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005.)
We decide whether the department satisfied the active efforts requirement as “a mixed question of law and fact.” (In re K.B. (2009) 173 Cal.App.4th 1275, 1286 (K.B.).) We review the record to determine what services were provided. (Ibid.) “Whether those services constituted ‘active efforts’ within the meaning of section 361.7 is a question of law which we decide independently.” (Ibid.; accord, A.L., supra, 243 Cal.App.4th at p. 639.)
C. Analysis 1. Removal From Parental Custody Mother’s challenge to the juvenile court’s removal order at disposition focuses on the apparent incongruity of the determination that returning the children to mother’s custody would place them at substantial risk of serious harm while Da. was permitted to remain in mother’s custody. She contends that the court’s finding that there was a substantial danger to the children’s physical and emotional well-being if they were returned home “could not be logically supported if the [m]other was permitted to continue to care for and maintain custody of one of her four younger children, in the same home, with the same circumstances, the same background trauma, the same parental variables, and the same mental health and behavioral challenges as the children who were removed.” Mother focuses on the elevated burden for removal in cases—like this one—involving Indian children, reflecting the Legislature’s focus on family preservation and requiring clear and convincing evidence of the risk of substantial harm to the children if returned home and the lack of reasonable means short of removal to protect their safety.
We are not persuaded that the juvenile court’s disposition finding as to each of the three children lacks supporting substantial evidence. The juvenile court heard testimony over several days and reviewed reports and addenda containing a detailed accounting of mother’s participation in outpatient substance abuse treatment, drug and alcohol testing, and her efforts to build support to maintain sobriety and establish safety factors. The court also heard expert testimony from stepgrandmother, the department social worker, and the qualified ICWA expert for the Spirit Lake Nation.
Drawing all reasonable inferences from the evidence to support the findings and orders of the juvenile court and viewing the record in the light most favorable to the court’s determinations (I.J., supra, 56 Cal.4th at p. 773), it is clear that multiple issues remained insufficiently resolved and presented significant risk factors to the children’s safety if returned to the home.
The record documents mother’s extensive history of substance abuse and alcoholism. Mother acknowledged that she is a chronic alcoholic, began drinking alcohol at 12 years old, and her longest period of sobriety was two years. Prior treatment and efforts at maintaining sobriety had been followed by relapse. Mother had several arrests for driving under the influence with a child in the vehicle, including two within the past year. Mother recognized the harmful effect of drinking on the children and substantial danger to them of driving while intoxicated, yet was not stable in her recovery. Mother admitted that staying sober was more challenging without the ankle monitor, she had not yet begun attending AA meetings, and, while she had a sponsor, the sponsor stated that mother was still on the first step of the 12-step program.
Moreover, mother was smoking marijuana in the evenings and appeared to have inadequate support in place to help maintain her sobriety. The facilitator at her outpatient substance abuse treatment noted that mother smelled like marijuana at her last session and called her marijuana use “ ‘pre-contemplative behavior’ ” that showed “ ‘continued risk of relapse without a structured environment or mandates.’ ” Mother also acknowledged that she had previously “sneak[ed]” alcohol and hid her drinking from stepfather, and both stepfather and stepgrandmother reported that they did not know she had been drinking. Mother testified that she was relying on the close presence of family members (stepfather, stepgrandmother, and Da.) to help her deal with her cravings.
Mother’s limited progress in establishing sobriety supports and continued use of marijuana placed the children at substantial risk of physical and emotional harm if returned to mother’s custody as long as relapse and lack of sobriety due to ongoing marijuana use was a significant possibility. All three children reported feeling unsafe when mother was using alcohol, and Vn. questioned mother’s ability to stop drinking alcohol.
In addition, the record showed that while mother met with the psychiatrist and was taking her prescribed medication, she had missed her last appointment. Mother recognized that she would benefit from individual therapy but had not begun it—having missed two intake appointments with the referred therapist at Indian Health Center —though she testified that she had an appointment scheduled. Mother reported addressing her stress and grief (due in part to the recent deaths of her uncle and two cousins) by spending many hours a day beading and taking walks and admitted that when she does not take her medication, she becomes very emotional, cries a lot, stays in bed, and “basically shut[s] down.”
The record thus reflects that, even as mother was taking psychotropic medication and working to manage her stress factors, she had not begun therapy and was struggling with daily functioning and follow through. The record also shows that stepfather was not a significant safety factor in the home, as he appeared reluctant to work with the department, walked out of meetings, and the children felt scared when father became angry or argued with mother.
The record thus supports the juvenile court’s finding that mother’s tenuous progress in her sobriety and mental health did not sufficiently reduce the likelihood of physical or emotional detriment to the children if they were returned to her. The children’s significant needs for behavioral and emotional support, including IEPs, medical and counseling appointments, and a present and responsive adult, amplified the substantial risk of harm to the children if returned to mother’s custody.
Mother testified that she would be able to enroll the children in school (as she had Da.) and described her fears and concerns about the girls’ self- harm behaviors and Dr.’s emotional distress. However, there was no evidence that mother was equipped to address these issues if the three children were returned to her. Mother was aware of Vn.’s cutting behavior when they left North Dakota but “ ‘just left it alone’ ” upon arriving in California. She had not enrolled the children in school or tried to connect Vc. and Dr. with service providers in California who could prescribe their ADHD medication or evaluate them for services based on their IEPs. While mother testified that she believed Da. would benefit from therapy and that she had spoken to stepfather about it, she had not yet taken any steps to do so.
In sum, the record establishes that during the extended period leading up to the contested hearing, mother participated in some services but failed
to engage (or had only recently begun engaging) in several key services intended to allow the children’s safe return. Mother’s ongoing struggle at the time of the hearing to connect and follow through with her own service providers, as well as her early-stage (step one) sobriety for alcohol, and her continued use of marijuana, raised serious questions about her ability to address the needs of the children if they were returned to her. Due to the children’s significant emotional and behavioral needs and risk factors, we conclude that substantial evidence supported the juvenile court’s determination by clear and convincing evidence that returning them to mother’s custody at this time would place them at substantial risk of serious physical or emotional injury.
That Da. was permitted to remain in mother’s custody during this period does not alter the existence of substantial evidence in the record to support the juvenile court’s determination. Section 361, subdivision (c)(1) requires a finding based on clear and convincing evidence of “substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and . . . no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parent’s . . . physical custody.” Furthermore, the evidence “must show a causal relationship between the particular conditions in the home and the likelihood that continued custody of the child will result in serious emotional or physical damage to the particular child who is the subject of the child-custody proceeding.” (25 C.F.R. § 23.121(c).)
The evidence supporting the juvenile court’s findings is specific to the three children subject to the dependency. The court’s findings were based on the circumstances the three children experienced after their arrival in
California—resulting in their placement into protective custody and the juvenile dependency petition—and on the record of each of their needs for stability and protection. During that period, the children were exposed to mother’s drinking and driving under the influence, her arguing with stepfather as a factor in the drinking, and Vn.’s distress at mother’s drinking and arguments with her about it. Each of the children had some combination of significant mental health diagnosis and/or behavioral challenge requiring intervention and specialized services. Furthermore, each of the children identified mother’s drinking and mother’s and stepfather’s arguing as a source of distress and agitation. These facts support a finding of causal relationship between “the particular conditions in the home” and “the likelihood that continued custody of the child will result in serious emotional or physical damage to the particular child who is the subject of the child- custody proceeding.” (25 C.F.R. § 23.121(c).)
Da. was differently situated. He arrived in California from boarding school after mother’s arrest and the children’s removal and was not subject to mother’s drinking and driving episode in May or to the living conditions at the time. According to mother, Da. did not have any mental health diagnoses, self-harm behaviors, or behavioral challenges.7 Further, when Da. was living with mother in California, mother did not have to care for the significant needs of any of the other three children.
The social worker who evaluated Da.’s safety after his arrival in California assessed Da.’s risk as moderate. The reasons given (despite high risk factors like the family’s prior history, open dependency case, and
7 Although Da. did not have behavioral or mental health diagnoses,
mother described an incident that had occurred between Da. and another youth when Da. was in school in South Dakota, resulting in Da. staying for one week stay in juvenile detention.
mother’s substance abuse) included current “oversight through court services” and social worker involvement, mother’s substance abuse treatment, ankle monitor (at the time), weekly drug testing requirements, medication compliance, and improvements to the home, including running water, working shower and toilet, and food in the refrigerator and cupboards. Also, the social worker assessed Da. as “ ‘at a developmental age to protect and advocate for himself and seek out support’ ” and noted that he “ ‘was able to identify local natural supports he can contact in case of an emergency.’ ”
The causal factors that placed the three other children at greater and specific risk (see 25 C.F.R. § 23.121(c)) were therefore not as substantial for Da., who was found to have a level of developmental maturity and coping ability (i.e., ability to seek out supports in case of emergency) not shared by the others. On this record, the ongoing risk factors that mother had not yet addressed posed substantially greater danger to the physical and mental health of the children and supported the conclusion that continued custody by mother “is likely to result in serious emotional or physical damage” to them in a manner not true for Da. (§ 361.7, subd. (c); 25 U.S.C. § 1912(e).) Based on the entire record and considering the heightened standard of proof, we conclude “ ‘ “a reasonable trier of fact could find” ’ ” (I.J., supra, 56 Cal.4th at p. 773) that return of the children to mother’s custody was substantially unsafe to them.
2. Active Efforts
Mother contends that the department failed to take active remedial efforts, required by law, to prevent the breakup of this Indian family. She argues that the department made only “[m]inimal efforts . . . other than the standard referrals” and failed to show specific, tailored actions or coordination to support mother.
We have carefully reviewed the record and trial testimony.
Considering the applicable standards, we conclude that the department made active (albeit ultimately unsuccessful) efforts to provide remedial services and rehabilitation programs designed to prevent the breakup of the family.
Prior to legislative amendments in 2018 to the California Indian Child Welfare Act; § 224 et seq.), the term active efforts was not statutorily defined by ICWA or its California counterpart. (K.B., supra, 173 Cal.App.4th at p. 1286; see Stats. 2018, c. 833, § 3 [amending § 224.1].) California courts generally understood the term “to require that timely and affirmative steps be taken 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.” (Letitia V. v. Superior Court (2000) 81 Cal.App.4th 1009, 1016 (Letitia V.); accord, K.B., at p. 1284; A.L., supra, 243 Cal.App.4th at p. 638.)
The detailed definition supplied by section 224.1 is consistent with the overarching understanding of “timely and affirmative steps.” (Letitia V., supra, 81 Cal.App.4th at p. 1016.) Simply put, active efforts are not passive.8 Active efforts require “affirmative, active, thorough, and timely efforts intended primarily to maintain or reunite an Indian child with their family” (§ 224.1, subd. (f)) and “tailored to the facts and circumstances of the case” (ibid.). Furthermore, active efforts are measured in context of the specific
8 The BIA Guidelines for State Courts and Agencies in Indian Child
Custody Proceedings (Guidelines) “clarify that ‘active efforts’ are ‘a level of effort beyond “reasonable efforts” ’ that are required for states to qualify for federal foster care and adoption assistance under the Social Security Act.” (A.L., supra, 243 Cal.App.4th at p. 643, quoting Guidelines, 80 FR 10146–02 (Feb. 25, 2015); see 80 Fed. Reg. 10146, 10150.) While the Guidelines are not binding authority, they are consistent with California’s statutes and rules. (A.L., at p. 643.)
case (“on a case-by-case basis” (§ 361.7, subd. (b)) and in relation to the prevailing social and cultural values and way of life of the child’s tribe, as well as “the available resources” of the extended family, tribe, and tribal and other Indian social service agencies and service providers (ibid.). Thus, what constitutes “active efforts” in one case might not be adequate in another, depending both on the prevailing culture and conditions of the tribe and its available resources, plus those of the child’s extended family. (See ibid.)
In K.B., the Court of Appeal adopted the guideline for “active efforts”
articulated by the Alaska Supreme Court: “ ‘Passive efforts are where a plan is drawn up and the client must develop his or her own resources towards bringing it to fruition. Active efforts . . . is where the state caseworker takes the client through the steps of the plan rather than requiring that the plan be performed on its own. For instance, rather than requiring that a client find a job, acquire new housing, and terminate a relationship with what is perceived to be a boyfriend who is a bad influence, [ICWA] would require that the caseworker help the client develop job and parenting skills necessary to retain custody of her child.’ ” (K.B., supra, 173 Cal.App.4th at p. 1287, quoting A.A. v. State (Alaska 1999) 982 P.2d 256, 261.)
The Court of Appeal in K.B. upheld the juvenile court’s finding that active efforts were made and affirmed the order terminating parental rights as to three children with Choctaw Nation heritage. (K.B., supra, 173 Cal.App.4th at pp. 1280, 1287.) The Court of Appeal explained that the social services department had “provided numerous services to the mother” in both a prior dependency and the current dependency involving the children, including in-patient substance abuse, counseling, and a parenting class (all of which the mother had completed), assistance in finding housing, including monetary assistance with rent, and bus passes to assist in attending
programs and facilitate visitation. (Id. at p. 1287.) The Court of Appeal decided, “[i]t is abundantly clear that [the department of social services] did more than merely draw up a reunification plan and leave the mother to use her own resources to bring it to fruition. [Citations.] On the contrary, [the department] provided the mother with the resources necessary to achieve the goals of her case plan. This constitutes ‘active efforts’ within the meaning of ICWA.” (Ibid.)
In A.L., the Court of Appeal similarly concluded that services provided to the mother, Amber L., constituted active efforts under ICWA and California law. (A.L., supra, 243 Cal.App.4th at pp. 637, 642.) These efforts included the social services agency’s “good faith effort to develop and implement a plan to address the [mother’s drug abuse] problem and to return the minors to Amber’s care,” its attempt “to maintain contact with Amber in the face of her steady resistance,” and its success “in getting Amber into treatment for a brief period of time.” (Id. at p. 643.) The agency undertook these efforts with help from the director of family services for Amber’s tribe (the Iipay Nation of Santa Ysabel), whom the agency contacted seeking “help and input throughout the proceedings.” (Ibid.)
In this case, the record contains evidence of the department’s active efforts to connect mother with services it recommended. Some of these efforts were initially met with resistance from mother. From the outset of the dependency proceeding, mother did not want the department to notify her tribe because she believed “the tribe was not helping them.” In fact, mother had left North Dakota because she wanted a new start for the family. Nonetheless, the department took steps after mother confirmed the children’s Indian heritage to comply with the procedures required by ICWA and California law (see Dezi C., supra, 16 Cal.5th at p. 1129 [describing
“minimum standards for state courts to follow before removing Indian children from their families” and states’ authority to “establish[] higher standards”]) and sought to identify individuals and tribal resources who could help support mother.
More specifically, the record reflects that the department—concurrent with its efforts to provide mother with local resources to address her needs for substance abuse treatment, psychiatric and counseling support, parenting classes, and job training—tried to identify culturally relevant resources and support persons from within the tribe. Inter alia, the department social worker Rodriguez connected mother in May with the department’s ICWA social worker who provided mother with counseling and other resources, both by e-mail and over the phone, and told her that she could reach out to her if she had questions or needed additional support. Tribal representative and ICWA coordinator, Marie Martin, participated in the initial detention hearing and throughout the proceeding; however, Martin was unable to identify any ICWA compliant or tribal placements for the children.
Rodriguez also spoke with the Spirit Lake tribe’s director of social services regarding contact information for the children’s father and any Native American services or resources—including AA meetings or parenting classes held virtually—but received no response regarding resources. Rodriguez asked the same questions of the interim director of tribal social services for the Spirit Lake tribe, who responded that the tribe was not able to do anything for mother because mother refused to work with them. Another member of the Spirit Lake tribe, Ms. Murphy, offered her support for mother and told department social worker Rodriguez that mother “can call her ‘day or night.’ ” Nevertheless, Ms. Murphy was similarly unaware of any tribal services or culturally relevant classes or resources that might be
available to mother. These individuals also confirmed that maternal grandmother was not a potential placement for the children because she was residing with a registered sex offender.
When mother had not begun counseling as of mid-September, department social worker Rodriguez offered to call the Indian Health Center with her to schedule the counseling and to obtain a doctor, but mother indicated that she still had the number and would call (which mother did). Mother had previously received counseling resources in May and had “indicated she would call on her own.” Therefore, Rodriguez and the ICWA social worker did not attempt to make calls with her. Mother did not ask for additional support.
Mother asserts that these were not active efforts and the department should have been more proactive in connecting her with rehabilitative and culturally relevant services. Mother suggests that the department could have placed her in an inpatient or outpatient program that might have allowed the children to remain safely with her, and been more involved in mother’s rehabilitative activities by “accompany[ing] her to intakes, . . . offer[ing] special funds to expedite therapy or provide cultural substance use or grief supports,” and providing “culturally tailored services, tribal-specific programs, or involvement of tribal service providers to address [] mother’s needs while engaging her in treatment and testing.” Mother argues that when she suffered the mini stroke, the department made no accommodation (such as in-home drug testing, or virtual visits) and criticizes the department for failing to identify relatives of mother or the children for potential placement consistent with ICWA’s mandate.
The standard for active efforts is not whether the department could have theoretically done more (see A.L., supra, 243 Cal.App.4th at p. 645
[“Although the Agency might have done more to assist Amber, its efforts in this case satisfied ICWA and state law requirements”]), but whether the department assists the parent through the steps of the case plan and with accessing the resources needed to satisfy the plan. (§ 224.1, subd. (f); K.B., supra, 173 Cal.App.4th at p. 1287.) We therefore do not examine the record based on ideal circumstances where there exist robust, culturally relevant service offerings for the department to offer. Instead, we evaluate active efforts “on a case-by-case basis” and utilizing “the available resources of the Indian child’s extended family, tribe, tribal and other Indian social service agencies.” (§ 361.7, subd. (b).) Active efforts must be “affirmative, active, thorough, and timely efforts” but also “tailored to the facts and circumstances of the case.” (§ 224.1, subd. (f).)
The department social worker looked for “cultural services that are for substance abuse” online, asked the department’s ICWA expert, and asked several individuals with the Spirit Lake tribe. She found no tailored services available that could be delivered remotely. When she and the ICWA social worker offered mother additional support in connecting with counseling services, including at the Indian Health Center, mother informed them that she could do it herself. Mother was not interested in seeking support from her tribe, as she believed the tribe had not helped her and the children. Although mother suffered health setbacks such as the minor stroke and deaths in her family, she did not immediately inform the department when those occurred, did not provide Rodriguez with discharge papers or documentation from the hospital so the department could assess if she required any accommodations, and did not respond to offers for additional support in connecting with case services.
We recognize that, apart from connecting mother with counseling at the Indian Health Center, the department’s efforts to identify ICWAcompliant placements for the children and culturally relevant services for mother were not fruitful. Nevertheless, this outcome does not mean the department failed to meet its burden to show “active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family.” (25 U.S.C. § 1912(d); § 361.7, subd. (a).) The record contains detailed documentation of outreach to tribal representatives and at least one tribal support person identified by mother, as well as efforts to procure ICWA services locally through the ICWA social worker and by connecting mother to the Indian Health Center. (§ 361.7, subd. (a).)
The complex dynamics presented by the children’s special needs and challenges the department faced in identifying potential relative, tribal, or ICWA compatible placements, as well as mother’s reticence to engage the Spirit Lake Nation for help and apparent preference (expressed on several occasions) to follow up directly with resources, rather than have the social worker assist, are relevant considerations in ascertaining active efforts. We conclude that, despite the limited availability of ICWA and culturally relevant resources available to mother, the department undertook active efforts (affirmative, thorough, and timely) to connect mother with the resources that were available and enable the return of the children to mother’s custody at the disposition hearing. (§§ 361.7, subd. (b), 224.1, subd. (f)).) We decide the juvenile court did not err in concluding that the department met its burden to make active efforts under ICWA and California-ICWA.
III. DISPOSITION
The juvenile court’s October 24, 2025 jurisdiction and disposition order is affirmed.
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Danner, J.
WE CONCUR:
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Greenwood, P. J.
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Adams, J.
H053805 In re V.M. et al.; Santa Clara County DFCS v. D.W.
In re V.M. CA6 (In re V.M. CA6) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.