Filed 4/22/22 In re M.G. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re M.G., a Person Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E078035
Plaintiff and Respondent, (Super. Ct. No. J284265)
v. OPINION
I.C.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander,
Judge. Affirmed.
Jacob I. Olsen, under appointment by the Court of Appeal, for Defendant and
Appellant.
Tom Bunton, County Counsel, and Dawn M. Martin, Deputy County Counsel, for
Plaintiff and Respondent.
1 I.
INTRODUCTION
I.C. (Mother) is the mother of seven-year-old M.G., born November 2014, and 1 two-year-old I.B., born November 2019. The children were removed from Mother’s
care due to issues with substance abuse and domestic violence. Despite receiving over 20
months of services, Mother failed to reunify with her children and her services were
terminated. Mother’s sole contention on appeal is that there was insufficient evidence to
support the juvenile court’s finding that there was a substantial risk of detriment in
returning M.G. to her care. We disagree and affirm the juvenile court’s order.
II.
FACTUAL AND PROCEDURAL BACKGROUND
The family came to the attention of the San Bernardino County Children and
Family Services (CFS) on February 17, 2020, after law enforcement responded to a
domestic violence incident in the home. It was reported that Mother and K.T. (I.B.’s
father) had been drinking and arguing, and as Mother was attempting to leave in her
vehicle with M.G., K.T. followed her to the car and choked her. K.T. also picked up
Mother and threw her to the ground. After Mother got up, she hit K.T. once, and he then
hit her multiple times on her body. Mother eventually ran into the home, grabbed a knife,
1 M.L.G. is the father of M.G. K.T. is the father of I.B. Neither father is a party to this appeal. In addition, I.B. is not a subject of this appeal.
2 and chased K.T. while stating she was going to kill him. A witness reported that Mother
had tried to stab K.T. with the knife.
When law enforcement arrived, Mother refused to open the door because she had
active warrants for her arrest. She was screaming and claimed that she suffered from
postpartum depression and was tired from taking care of I.B. I.B. was in the basinet
during the incident. She admitted to holding the knife but denied chasing or stabbing
K.T. M.G. confirmed the allegations to law enforcement, noting that he had seen K.T.
choke Mother and “‘almost kill her.’” M.G. also reported that he saw Mother trying to
stab K.T. with a knife. Mother was arrested for assault with a deadly weapon and
criminal threats, and K.T. was arrested for felony domestic violence.
After Mother and K.T. were arrested, the children were left with the maternal
grandmother. The maternal grandmother allowed M.G. to go with his father, and the
whereabouts of M.G. and his father became unknown. Eventually, on May 1, 2020,
M.G.’s father met with the social worker to place M.G. into CFS custody. M.G. was
taken into protective custody and placed with his half-sibling I.B.
On February 24, 2020, petitions were filed on behalf of the children pursuant to 2 Welfare and Institutions Code section 300, subdivisions (b) (failure to protect) and (g)
(no provision for support). The children were formally detained the following day at the
detention hearing and CFS was ordered to provide Mother with predisposition services.
2 All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
3 CFS recommended that the juvenile court sustain the allegations in the petitions
and that Mother be provided with reunification services. Mother and K.T. had a history
of engaging in domestic violence. Mother also had a domestic violence history with
M.G.’s father and a substance abuse and criminal history. Moreover, Mother had another
recent incident involving law enforcement after she threatened a woman on her property.
When officers arrived, Mother lied to them about her identity and tried to escape “‘out
the back door.’” K.T. was present at that time. K.T. and Mother, however, denied they
were still a couple. Mother also failed to drug test on five occasions.
The juvenile court took jurisdiction of the matter on August 12, 2020, and
continued the matter to assess M.G.’s father and his home for placement of M.G. The
court ordered Mother assessed for an inpatient substance abuse program with CFS to
facilitate referrals.
By October 2020, Mother continued to fail to drug test and had missed eight drug
tests from June to October. Mother admitted to smoking methamphetamines twice a day,
but believed it was “‘not a problem.’” She claimed that her drinking was the issue and
noted drinking a fifth of alcohol per day. She also admitted to living with K.T. and
continuing to engage in domestic violence. The social worker spoke with Mother about
entering inpatient substance abuse treatment, but Mother wanted outpatient services. On
September 16, 2020, Mother enrolled in an outpatient substance abuse treatment
program. Nonetheless, four days later she tested positive for drugs.
4 Mother also continued to violate the law. On September 27, 2020, Mother was
drunk and involved in a domestic violence incident with her pregnant sister and her
sister’s boyfriend. Mother had hit the boyfriend in the face with a glass bottle and then
stabbed him with a piece of broken glass. She also grabbed her sister by the throat and
punched her in the face three times. In addition, Mother attempted to give a false name
to responding officers and was aggressive with them. She also refused to allow her
fingerprints to be taken after being arrested and claimed she was pregnant to stop the
booking process. After Mother was released from jail, she contacted the social worker
and blamed others for the incident. The social worker attempted to get Mother to enter
an inpatient substance abuse program, but she refused and insisted she would no longer
drink or hang out with her sister. Furthermore, Mother consistently visited her children.
On October 21, 2020, M.G. was declared a dependent of the court and placed with 3 his father under a family maintenance plan. Mother was provided with reunification
services and ordered to participate in her case plan. Mother’s case plan required her to
participate and complete a domestic violence program, a parenting program, general
counseling, an outpatient substance abuse program, a 12-step program, and randomly
drug test and develop a safety and support network.
By April 21, 2021, CFS recommended that M.G. remain in his father’s care under
a family maintenance plan and that Mother be provided with additional reunification
3 I.B. was also declared a dependent of the court, removed from parental custody, and placed in a concurrent planning home.
5 services. CFS referred Mother to a domestic program, general counseling, and a
parenting education program on three separate occasions. Mother was making some
progress on her case plan, but continued to struggle with managing her emotions, finding
a stable place to live, developing a support network, and maintaining sobriety. She also
failed to randomly drug test on several occasions. Mother was consistently attending her
programs until her arrest on March 4, 2021 for violating her parole after she continued to
drink alcohol. The social worker spoke with Mother’s probation officer as to whether
Mother could be assessed for inpatient substance abuse treatment while in custody.
Mother’s probation officer indicated that she could recommend Mother be released to an
inpatient treatment center and that Mother would be assessed on April 8, 2021 while in
custody to determine if she can go to an inpatient treatment center.
On May 18, 2021, the juvenile court maintained M.G. in his father’s care and
continued Mother’s reunification services.
By August 19, 2021, CFS had initially recommended that M.G. remain in his
father’s care and that the court dismiss his dependency case. CFS also recommended that
Mother’s reunification services be terminated and that a section 366.26 hearing be set to
establish a plan of adoption for M.G.’s half-sibling I.B. During this reporting period,
Mother did not have stable housing and often slept in her car and occasionally at the
maternal grandmother’s home. She, however, was currently employed and had been
more consistent with visits. In addition, she had completed a parenting program and was
attending domestic violence classes and general counseling. She also participated in an
6 inpatient substance abuse program from April 23, 2021 through June 26, 2021, and was
scheduled to start outpatient treatment services. She tested negative on four occasions
between May and July 2021, but failed to test on three other instances between July and
August 2021.
CFS later changed its recommendation as to M.G. remaining in his father’s care
after it was informed M.G.’s father had been arrested on an outstanding warrant and
charged with felony murder, first degree murder, shooting at an inhabited building, and
possession of a firearm. CFS subsequently filed a section 387 supplemental petition on
behalf of M.G.
On August 23, 2021, the juvenile court formally detained M.G. from his father’s
custody.
CFS recommended that M.G.’s father be denied reunification services pursuant to
section 361.5, subdivision (e)(1), that Mother’s reunification services be terminated, and
that a permanent plan of return to Mother’s home be ordered for M.G. with Mother to
receive services in accordance to the permanent plan. Mother had moved out of M.G.’s
father’s home and was moving back in with the maternal grandmother. She had
completed most of her reunification services with the exception of one more domestic
violence class and failing to drug test on August 3 and 10, 2021.
But by October 19, 2021, CFS changed its recommendation as to Mother. CFS
recommended that Mother’s reunification services be terminated pursuant to section
361.5, subdivision (b)(10), and that a permanent plan of placement for M.G. with a fit
7 and willing relative be ordered. Mother had begun individual counseling and had
completed a domestic violence program. She stated that she would be enrolling in an
outpatient substance abuse program, but a few days later she still had not started the
program. When the social worker asked her about her participation, she said “‘it wasn’t
ordered by the court.’” She also did not drug test in September or October 2021. The
social worker believed that Mother did not appear proactive in maintaining her sobriety.
At a hearing on November 5, 2021, as to I.B., Mother’s counsel requested that the
court find that Mother had not been provided reasonable services and that her services
continue. The court found that Mother had not made substantial progress on her case
plan, terminated her reunification services, and scheduled a section 366.26 hearing for
I.B. The court stated that it believed that Mother was still struggling with her substance
abuse, noting she had completed an inpatient substance abuse program but then
subsequently failed to drug test. The court explained there was no evidence that she was
“stable, sober and able to provide for [I.B.] and it would be inappropriate to return at this
time.”
As to M.G., the court found true the allegations in the supplemental section 387
petition true, removed him from his father’s care, and declared him a dependent of the
court. Mother’s counsel requested additional reunification services with M.G. be
provided. Counsel noted that Mother had substantially participated in her case plan and
made reasonable efforts to treat the issues leading to the removal of I.B. from her care.
The court found that Mother was beyond the statutory timeframe and had failed to
8 reunify with her children. The court noted that Mother had received over 20 months of
services and that between August and October 2021 Mother was urged to enter an
outpatient substance abuse program. Yet, Mother continued to indicate that CFS could
not order her to participate in those services as they were not part of her court order. The
court also pointed out that Mother had not drug tested since that time, which showed she
had not benefitted from services, and substance abuse continued to be an ongoing issue
for her. The court found a compelling reason existed for determining that a section
366.26 hearing was not in M.G.’s best interest as no potential legal guardian had been
identified and ordered continued weekly visitation for Mother. Mother timely appealed.
III.
DISCUSSION
Mother contends there was insufficient evidence for the juvenile court to find that
it would be detrimental to return M.G. to her care. We disagree.
Family reunification services are subject to strict time limitations. “[T]o prevent
children from spending their lives in the uncertainty of foster care, there must be a
limitation on the length of time a child has to wait for a parent to become adequate.
[Citations.] To avoid unnecessary delays in the process the Legislature has directed the
juvenile court to ‘give substantial weight to a minor’s need for prompt resolution of his or
her custody status, the need to provide children with stable environments, and the damage
to a minor of prolonged temporary placements.’ (§ 352, subd. (a).)” (In re Marilyn H.
(1993) 5 Cal.4th 295, 308.) “Under the current dependency scheme, except in limited
9 circumstances, a parent is entitled to 12 months of reunification services, with a
possibility of [six] additional months, when a child is removed from a parent’s custody.
[Citation.] The juvenile court must review the case once every six months. [Citation.]”
(Ibid.) “‘Once reunification services are ordered terminated, the focus shifts to the needs
of the child for permanency and stability.’ [Citation.]” (In re A.J. (2015) 239
Cal.App.4th 154, 163.)
If the court finds it would be detrimental to return the child, it has the option of
continuing reunification services up to the 18-month review hearing. At that point, the
court must either return the child to parental custody or set a hearing under section 366.26 4 to select a permanent plan. (§ 366.22, subd. (a)(3).) However, reunification services
may be extended up to 24 months under section 366.22, subdivision (b), when a parent is:
a resident of a court-ordered substance abuse treatment program; or recently discharged
from incarceration, institutionalization, or the custody of the United States Department of
Homeland Security; or a minor or nonminor dependent parent at the time of the initial
hearing. Reunification services may also be extended beyond the 18-month review
hearing (1) when the court finds the parent was never provided reasonable reunification
services (In re M.F. (2019) 32 Cal.App.5th 1, 21); or (2) in a special needs case where
there are extraordinary circumstances that prevented the parent from participating in the
4 The court is not required to set a section 366.26 hearing if it finds that the child is not a proper subject for adoption and there is no one willing to accept legal guardianship as of the 18-month review hearing date. (§ 366.22, subd. (a)(3.).) In this case, the juvenile court made such a finding for M.G. at the November 5, 2021, and accordingly, did not set a section 366.26 hearing at that time.
10 case plan. (Andrea L. v. Superior Court (1998) 64 Cal.App.4th 1377, 1388; In re
Elizabeth R. (1995) 35 Cal.App.4th 1774, 1777). Generally, where “extraordinary
special needs are not at issue, . . . the juvenile court’s extension of services beyond 18
months [is] an abuse of discretion and in excess of its jurisdiction, as limited by statute.”
(Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1511.) Here, none of the
exceptions warranting additional services applied, and there is no dispute that Mother
was provided reasonable services.
If reasonable services have been provided to the parent, “section 366.22,
subdivision (a) requires the juvenile court at the 18-month review hearing to return the
child to the custody of the parent unless it determines, by a preponderance of the
evidence, that return of the child would create a substantial risk of detriment to the child’s
physical or emotional well-being.” (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1400;
see In re Marilyn H., supra, 5 Cal.4th at p. 308; § 366.22, subd. (a)(1).) It is the
department’s burden to establish detriment. (§ 366.22, subd. (a); In re Yvonne W., supra,
at p. 1400.) A parent’s failure to participate regularly and make substantive progress in
court-ordered treatment programs is prima facie evidence that return would be
detrimental. (§ 366.22, subd. (a).)
“In evaluating detriment, the juvenile court must consider the extent to which the
parent participated in reunification services. [Citations.] The court must also consider
the efforts or progress the parent has made toward eliminating the conditions that led to
11 the child’s out-of-home placement. [Citations.]” (In re Yvonne W., supra, 165
Cal.App.4th at p. 1400.)
We review the juvenile court’s finding that a child would suffer detriment if
returned to the physical custody of his or her parent for substantial evidence. (Angela S.
v. Superior Court (1995) 36 Cal.App.4th 758, 763-764.) In doing so, we consider the
evidence favorably to the prevailing party and resolve all conflicts in support of the trial
court’s order. (In re David M. (2005) 134 Cal.App.4th 822, 828.) Substantial evidence is
evidence that is reasonable, credible and of solid value. (In re N.S. (2002) 97
Cal.App.4th 167, 172.)
On a challenge to the sufficiency of the evidence to support the juvenile court’s
finding, the question is not whether a contrary finding might have been made, but
whether substantial evidence supports the finding made by the court. (In re Dakota H.
(2005) 132 Cal.App.4th 212, 228.) “The appellant has the burden of showing there is no
evidence of a sufficiently substantial nature to support the finding or order.” (Ibid.) If
the finding or order is supported by substantial evidence, it will be upheld. (Ibid.)
In this case, we find substantial evidence to support the juvenile court’s findings
that it would be detrimental to return M.G. to Mother’s custody. Mother failed to show
that she could consistently maintain her sobriety. Furthermore, despite having completed
an inpatient drug treatment program, Mother’s actions showed that she had not benefitted
from the services provided to her. She continually failed to drug test and claimed that she
did not need to enroll in an outpatient drug program. Substance abuse was the primary
12 factor for the juvenile court’s finding that it was detrimental to return M.G. to her care.
As noted by the juvenile court, Mother had over 20 months of reunification services but
failed to demonstrate she could maintain her sobriety.
Furthermore, it appears Mother had entered an inpatient substance abuse treatment
program at the behest of the social worker and her parole officer after her third arrest
during this dependency. Before that, she claimed that she preferred an outpatient
program and refused to enter an inpatient program. But after she had begun an outpatient
substance abuse program in September 2020, she tested positive for drugs four days later.
Shortly thereafter, Mother was arrested for assaulting her pregnant sister and her sister’s
boyfriend. After she was released from custody, the social worker again attempted to get
Mother to enter into an inpatient substance abuse program, but she refused. Although
several months later Mother was making progress on her case plan, in March 2021,
Mother was again arrested for violating her parole due to drinking alcohol with a breath
alcohol monitor in her vehicle.
After efforts by her parole officer and the social worker, Mother eventually
enrolled in an inpatient substance abuse program from April 23, 2021 through June 26,
2021. She was later scheduled to start outpatient treatment services but refused to enroll
in such services, claiming it was not part of a court order. In addition, although Mother
had tested negative for drugs on four occasions between May and July 2021, she later
failed to test at any point between August and October 2021. As Mother acknowledges,
her “no show” tests were considered positive. Mother’s failure to drug test or enroll into
13 an outpatient substance abuse program was evidence that she could not establish her
sobriety or show that she had benefitted from the services provided to her. As the
juvenile court noted, Mother’s refusal to drug test showed she had not benefitted from
services and substance abuse continued to be an ongoing issue for her.
Mother contends the evidence showed that she had “completed her case plan,
appeared to have benefitted from the services provided, and had made changes in her life
that were in M.G.’s best interests.” Mother’s technical compliance with her court-
ordered services, though significant, is not conclusive in determining detriment. It
simply means there was not prima facie evidence of detriment. The court must still
consider whether she eliminated the conditions leading to her children’s removal and
whether they would be safe in her custody. (See, e.g., In re Dustin R. (1997) 54
Cal.App.4th 1131, 1141-1142.)
The risk of detriment, in this case, was Mother’s history of abusing substances and
her domestic violence history with both fathers and her family. While Mother had ended
her volatile relationship with the fathers and completed a domestic violence program, the
risk of detriment to M.G. still existed due to Mother’s failure to maintain sobriety and
benefit from the services provided. In fact, Mother’s use of substances appeared to be the
root cause of her domestic violence incidents. Her use of substances led her to act
irrationally and violently towards I.B.’s father and her relatives. Moreover, Mother had
not completely complied with her case plan, but had substantially fulfilled the obligations
of her case plan. As previously noted, Mother had refused to participate in an outpatient
14 treatment program following her competition of inpatient services and had repeatedly
failed to drug test. Based on the evidence in this case, the juvenile court could find that it
would be detrimental to place M.G. with Mother, even under the supervision of CFS.
Our review of the record shows there is substantial evidence to support the court’s
finding that despite Mother’s commendable efforts to complete her case plan, she had yet
to establish that she had maintained her sobriety consistently over a sufficient period of
time to provide M.G. with a safe and stable environment. In cases involving a parent’s
substance abuse, the juvenile court must consider the likelihood of whether the parent
will maintain a “stable, sober and noncriminal lifestyle for the remainder of [the child’s]
childhood.” (In re Brian R. (1991) 2 Cal.App.4th 904, 918.) Although Mother had made
commendable progress toward addressing her drug problems by participating in, and
completing, an inpatient drug treatment program and attaining some negative drug tests,
the juvenile court reasonably could infer that she had not yet overcome her drug abuse
problem and ameliorated the reason for the children’s initial removal.
Based on the entire record and, in particular, Mother’s long history of drug and
alcohol abuse and belated efforts to address her substance abuse problems, the juvenile
court reasonably could conclude that Mother needed to maintain a longer period of
sobriety to show she could safely care for M.G. and provide him with the stability he
requires. Accordingly, we conclude there is substantial evidence to support the court’s
finding that at the time of the November 5, 2021 hearing the return of M.G. to her
15 custody would create a substantial risk of detriment to his physical or emotional well-
being. (§ 366.22, subd. (a)(1).)
IV.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
McKINSTER Acting P. J.
MILLER J.