M.D. v. Superior Court CA3 ( 2022 )

Filed 6/30/22 M.D. v. Superior Court CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Placer)
----
M.D., C094643
Petitioner, (Super. Ct. No. 53005000)
v.
THE SUPERIOR COURT OF PLACER COUNTY,
Respondent;
PLACER COUNTY DEPARTMENT OF HEALTH
AND HUMAN SERVICES et al.,
Real Parties in Interest.
1
M.D. (petitioner), mother of C.G. (minor), seeks an extraordinary writ (Cal. Rules
of Court, rule 8.452) to vacate the juvenile court’s orders terminating her reunification
services, declining to return the minor to her custody, and setting a hearing pursuant to
Welfare and Institutions Code section 366.26.1
Real party in interest Placer County Department of Health and Human Services
(Department) supports mother’s petition, agreeing the challenged orders should be
reversed due to insufficient evidence supporting the juvenile court’s finding of substantial
risk of detriment to the minor. The minor opposes the petition. We stayed the section
366.26 hearing in the juvenile court pending the resolution of this writ petition and issued
an order to show cause. As we next explain, we direct the juvenile court to vacate the
challenged orders and hold a new review hearing.
FACTUAL AND PROCEDURAL BACKGROUND
On January 16, 2020, the Department filed a section 300 petition on behalf of
(then) eight-year-old C.G. (born September 2011). The petition alleged, under section
300, subdivisions (a), (b)(1), and (c), that father’s domestic violence issues and use of
aerosol inhalants placed the minor at substantial risk of serious physical and emotional
harm. Because the evidence supporting the allegations against father is not relevant to
this writ proceeding, we omit the details of his transgressions. There were no factual
allegations relating to mother, whom the Department had not yet located. The minor was
detained and placed with the paternal grandparents (grandparents). The minor had a
close bond with the grandparents; they were his primary caretakers while father was
incarcerated.
1 Further undesignated statutory references are to the Welfare and Institutions Code.
2
Mother was located living in Oregon; she appeared prior to the jurisdiction
hearing. She and father had been litigating the minor’s custody since January 2015. In
November 2017, the family court had awarded father legal and physical custody, giving
mother scheduled telephone contact and one weekend visit per month. Father had been
ordered not to interfere with this contact. After further litigation, the parents were given
joint legal custody of the minor, with father having primary physical custody and mother
provided scheduled telephone contact and two weekend visitations per month. Father
had again been ordered not to interfere in this contact. Mother had filed a motion
requesting a contempt order in November 2018 based on allegations that father had
violated the custody orders, but the matter was dismissed when neither parent appeared at
the January 2019 hearing.
Mother reported she had lived with father until just shy of the minor’s second
birthday when she left, taking the minor with her, due to father’s domestic violence.
Around the minor’s third birthday, her family convinced her to let the minor live with
father until she “got things straightened out because [she] did not have a job.” She had
last visited the minor in October of 2018. Mother stated father had thwarted her attempts
to contact and visit the minor.
Father stated he had “kicked [mother] out” after finding a methamphetamine pipe
under the sink. He reported she came back but left again when the minor was three years
old. He stated that when she had visitation every other weekend, “she kept screwing that
up.” Her last visit had occurred in October 2018 and she “refused to bring” the minor
back; after he called the sheriff’s department, she brought the minor back at 3:00 a.m.
Father denied having obstructed her attempts to contact or visit the minor.
The jurisdiction hearing was held on March 17, 2020; the parents submitted on the
report as to jurisdiction and mother indicated she would be seeking placement at the
disposition hearing. The Department had recommended against placement with mother
in its report prepared for the hearing, citing the lack of stability in her recent and current
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living situations. Of particular relevance here, the Department noted mother had
displayed a pattern of intermittent contact with the minor throughout the litigious family
law process and had gone over a year without seeing the minor. When asked why she did
not take appropriate action in family court, mother indicated she had believed she needed
an attorney to appropriately represent her. Mother admitted bringing the minor back late
on numerous occasions and that she should have been more diligent in the custody
exchanges. Noting that father may have interfered with the minor’s contact with mother,
the Department was concerned that mother did not take the appropriate action to ensure
participation in her designated parenting time. The Department requested time to engage
mother in services “to more thoroughly assess her relationship with [the minor], her
living situation and her relationship with her fiancé” and to support her in developing a
connection to the minor.
The March 2020 report concluded that the minor was adjusting well in his
placement with the grandparents. He was reported to have a close bond with his father’s
side of the family. The minor was very comfortable and familiar with his grandparents as
caretakers and with the home environment. In addition to primary caretaking during
father’s incarceration, the grandparents had cared for the minor for extended periods of
time due to father’s substance abuse. The minor’s older half sibling was often at the
grandparents’ home. The minor also had a relationship with mother’s other two children,
his younger half siblings.
After hearing argument at the disposition hearing held on April 21, 2020, the
juvenile court found placement with mother detrimental to the minor due to several
concerns, but primarily because she had not had contact with the minor since October
2018. The court removed the minor from parental custody and ordered reunification
services and visitation for both parents, setting a placement review hearing in July and
the six-month review hearing in October.
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In the report prepared for the July 8, 2020 review hearing, the Department noted
that mother had actively participated in the parenting curriculum and provided negative
drug tests. Her visits were consistent and her relationship with the minor had improved.
The minor began responding that he loved her when she said it to him and continued
developing his relationships with his maternal half siblings. Mother wanted what was
best for the minor and had moved to the Redding area to be closer to him. But the minor
was “fearful if he was to ever live with [mother] that he would not see his paternal
family.” The Department did not recommend any changes as to placement, and the
review hearing focused primarily on father’s lack of progress.
In a report prepared in anticipation of the October 20, 2020 six-month review
hearing, the Department reported that mother continued to actively participate in therapy;
her therapist reported she was a “fiercely devoted mother” who was willing to do
whatever is necessary to have the minor back in her life on a regular basis. She traveled
weekly for in-person visits with the minor. She noticed the minor was “resistant,” but
she was “very patient and understanding of [the minor’s] feelings.” When asked about
overnight visits or unsupervised visits with mother, the minor responded, “I would have
to go all the way there and all the way back. No I don’t feel comfortable staying the
weekend, that’s basically living with her.” He added, “I don’t want to feel more
comfortable. I want it to stay like this. I’ll never get used to [living with my mother.]”
The Department noted mother’s progress but that the minor was resistant to her efforts;
because he was not yet ready for supervised visits despite mother’s requests, the
Department did not recommend placement with mother. The special advocate observed
the minor’s needs were being met by the grandparents and recommended continued
placement with them.
At the six-month review hearing, mother submitted on the Department’s
recommendations for continued removal and services, representing through counsel that
despite the fact that she was doing well, she understood the minor was reluctant to come
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live with her and did not want to cause him further discomfort. The minor’s attorney
represented that the minor was “not particularly fond of visits” and “is not interested in
counseling with his mother,” but noted as the rationale behind the sentiments only that it
was a three-hour drive and the minor thought he was missing too much school. The court
continued placement with the grandparents and ordered a conjoint counseling referral for
the minor and mother, noting that the minor did not want to “be disloyal” to father but
that father was not doing well with his services.
The Department reported ahead of the March 16, 2021 review hearing that mother
had moved to the Shasta Lake area to be even closer to the minor. The Department
liberalized visits and the minor described his visits with mother as “good.” He also
became more receptive to overnight visits but expressed dislike for the time spent in the
car traveling to mother’s house. He wanted to spend more time with mother but did not
want to live with her. Mother continued to fully participate in her case plan and had
completed her services “early on.” Given the minor’s continued reluctance to live with
mother, the Department continued the recommendation for the minor to stay with the
grandparents while continuing to strengthen his relationship with mother.
At the hearing, mother submitted to the recommendation and the juvenile court
continued services for both parents and continued minor’s placement with the
grandparents. The court ordered unsupervised and overnight visitation for mother.
The 18-month review hearing took place on August 4, 2021. No concerns had
been noted with mother’s overnight and extended visits (lasting as long as a week) that
had begun in February 2021. The minor reported no safety concerns and described the
visits as “fine.” He maintained, however, that he did not want to live with mother, as he
was concerned that he would not be able to see his paternal relatives. The Department
concluded mother had demonstrated motivation to change and a commitment to
providing the minor with a safe and loving home. The social worker’s report stated that
“[m]other has been patient throughout [the minor’s] resistance and reports she wants to
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foster a continued relationship for [the minor] with his paternal relatives because she
knows that is what is best for him. While [the minor] consistently reports he does not
want to live with his mother, when he does go visit he does not report any concerns to the
[social worker] and the mother reports that the visits go well.” The Department noted its
initial concerns with mother’s lack of stability and residence were no longer an issue.
The social worker did not believe placement of the minor in mother’s home would be
detrimental to the minor and the Department recommended he be returned to mother’s
custody. It further recommended that mother be provided family maintenance services to
help with the minor’s transition and provide oversight and to ensure he was provided with
any services he may need to aid him during the transition, and that father be provided
with at least two relative-supervised visits per month, including the possibility of
supervised overnight visits at the grandparents’ home.
The minor submitted a letter to the court that he had written with the assistance of
his grandmother. The letter stated the minor did not “want to live with [m]om because
we don’t have a great relationship, because I have not lived with her for a long time.” It
stated the minor did not have a bond with mother and wanted to stay with his
grandparents because he would miss his father and other paternal relatives as well as his
home and school. At the hearing, he testified he wanted to live with father because he
had lived with father for longer than mother. The special advocate testified the minor
was in a stable and comfortable place with the grandparents and felt very loved and
supported in their home.
Mother testified the minor appeared happy during visits. He was always engaged
in what they were doing and she encouraged him to be open and honest about his
feelings. She permitted him to use his cell phone to call his grandparents and father
during visits any time except after 10:00 p.m. He was developing a relationship with his
two younger half siblings and was making friends with children in the neighborhood.
She had only one conjoint counseling session with the minor and thereafter was told he
7
did not want to continue with counseling. She was supportive of resuming his, or joint,
counseling to assist the minor in a transition to her home. She would support him
emotionally as needed and she intended to support his ongoing relationships with father
and the grandparents.
The juvenile court found that mother had made substantial progress toward
alleviating the reasons the minor was removed but that returning him to her care would
impair his emotional security. In making what it characterized as a “difficult decision,”
the court explained that “[t]his is not to say that mother is not perfectly willing, capable
or committed to caring for [the minor]. Using the terms of her counselor, [m]other is
fiercely devoted. She has done everything I asked her to do and more. She has shown a
great deal of patience and grace throughout this process . . . .” “I’ve seen again amazing
grace, amazing humility [from mother], and I think she has fought for [the minor] but not
pushed him. And that is hard. She was patient. She didn’t force [the minor] into
uncomfortable situations. She allowed [the minor] to call Dad and grandparents any time
he wanted.” The court further noted that the minor has lived in the same area since he
was very young and had spent a lot of his life with his grandparents. “These relationships
give him comfort and stability. Grandparents gave him a safe place when [f]ather was
actively using and [m]other was absent.” The court then concluded that moving the
minor to mother’s home would be a “tremendous upheaval in his life, and he has already
been through so many upheavals at the hands of his parents. He would lose his sense of
stability and that is critical to his mental and emotional health.”
The time for reunification services having expired, the juvenile court terminated
reunification services and set the section 366.26 hearing.
Mother filed a timely notice of intent in August 2021; briefing was initially
completed in October 2021. This court ordered supplemental briefing on the issue of
reasonable services related to joint counseling, which was completed in December 2021
and the matter was placed under submission. This court vacated submission and issued
8
an order to show cause in March 2022; the matter was fully briefed in April 2022 and
assigned to this panel as presently constituted in June 2022. The parties did not request
oral argument.
DISCUSSION
Mother and the Department argue insufficient evidence supports the juvenile
court’s detriment finding; the minor disagrees. We review the finding for substantial
evidence. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763.) Substantial
evidence is evidence that is “reasonable, credible and of solid value; it must actually be
substantial proof of the essentials that the law requires in a particular case.” (In re
Yvonne W. (2008) 165 Cal.App.4th 1394, 1401.) If the reviewing court does not find
substantial evidence of detriment, it must return the minor to parental custody. (Ibid.)
As relevant here, the 18-month review hearing is governed by section 366.22.
Section 366.22, subdivision (a)(1) provides, in relevant part: “When a case has been
continued pursuant to paragraph (1) or (2) of subdivision (g) of Section 366.21, the
permanency review hearing shall occur within 18 months after the date the child was
originally removed from the physical custody of his or her parent or legal guardian. After
considering the admissible and relevant evidence, the court shall order the return of the
child to the physical custody of his or her parent or legal guardian unless the court finds,
by a preponderance of the evidence, that the return of the child to his or her parent or
legal guardian would create a substantial risk of detriment to the safety, protection, or
physical or emotional well-being of the child. The social worker shall have the burden of
establishing that detriment. . . . In making its determination, the court shall review and
consider the social worker’s report and recommendations and the report and
recommendations of any child advocate appointed pursuant to Section 356.5; shall
consider the efforts or progress, or both, demonstrated by the parent or legal guardian and
the extent to which he or she availed himself or herself of services provided . . . ; and
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shall make appropriate findings pursuant to subdivision (a) of Section 366.” (Italics
added.)
The juvenile court is required to state its reasons on the record if it does not return
the minor to parental custody. (§ 366.22, subd. (a)(2).)
The juvenile court may not extend reunification services beyond 18 months from
the date of initial removal unless it makes specific factual findings not applicable here.
(§ 366.22, subd. (b)(1)-(3); San Joaquin Human Services Agency v. Superior
Court (2014) 227 Cal.App.4th 215, 222.) Thus, the available options at this 18-month
review hearing were to return the minor to parental custody (with or without maintenance
services) or terminate reunification services and set a section 366.26 hearing. (§ 366.22,
subd. (a).) Here, the juvenile court chose the latter option, which, as we have set forth
above, requires a showing “by a preponderance of the evidence, that the return of the
child to his or her parent or legal guardian would create a substantial risk of detriment to
the safety, protection, or physical or emotional well-being of the child.” (§ 366.22, subd.
(a)(1).)
The parties provide us with no cases directly analogous to the instant matter that
are on point, and we have found none. Indirectly analogous cases are somewhat
instructive, but concern return of children to their nonoffending, noncustodial parents
who have thus far been denied return (like mother here) at disposition rather than at the
final review hearing, as happened in this case. At disposition, the required finding of
detriment must be shown by clear and convincing evidence. (§ 361.2, subd. (a); In re
C.M. (2014) 232 Cal.App.4th 1394, 1400.) As we have set forth above, at a review
hearing failure to return to a parent requires a finding of substantial risk of detriment by a
preponderance of the evidence. (§ 366.22, subd. (a)(1).)
Here, the Department recommended return to mother and the social worker opined
that return would not result in substantial risk of detriment to the minor. No witness or
evidence contradicted that opinion. Although the minor testified he would rather live
10
with his father, he expressed no concerns regarding his extended visits with mother other
than the distance and the fact that he did not want to lose contact with his paternal
relatives. The Department recommended continued services and visitation for father that
included overnight visits in the grandparents’ home. Mother testified to her commitment
to maintain that contact and had twice relocated to be closer to the minor and paternal
relatives. Nonetheless, the juvenile court found substantial risk of emotional harm by a
preponderance of the evidence were the minor to be returned to his mother.
In In re C.M., supra, 232 Cal.App.4th 1394, the child had lived with her mother in
the maternal grandparents’ home prior to detention. Following the mother’s arrest, a
petition was filed on behalf of the child. The child’s father, who was nonoffending,
requested custody at disposition. (Id. at pp. 1397-1398.) The father had provided
financial support and maintained a relationship with the child. He saw her on weekends,
had unmonitored overnight visits with her, and had frequent telephone calls. (Id. at pp.
1396-1397.) Nevertheless, the child was “adamant” that she did not want to live with her
father because she did not want to leave her maternal grandmother or change schools. (Id
at p. 1399.) The Department and the child argued the evidence was sufficient to support
a finding of detriment by clear and convincing evidence, emphasizing the child wanted to
remain with her grandparents; she wanted to visit but did not want to live with father; she
did not want to be separated from her half sibling or change schools; the father worked
long hours and was often away from home, as a result of which the child would often be
in the care of her stepmother; although he was nonoffending, the father had a history of
alcohol abuse (as reported by the mother) and a 20-year-old domestic violence
conviction. (Id. at p. 1402.)
The appellate court reversed the juvenile court’s finding of detriment as
unsupported by substantial evidence. The court noted that, while the child’s wishes,
sibling bonds, and relationship with the noncustodial parent may be considered by the
juvenile court in determining whether placement of a dependent child with a
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noncustodial, nonoffending parent would be detrimental to the child’s physical or
emotional well-being, none of these factors is determinative. Under these circumstances,
the court found the evidence insufficient to support the detriment finding and place the
minor with the maternal grandmother instead of father. (In re C.M., supra, 232
Cal.App.4th. at pp.1404-1405.) The court remanded for a new hearing on the issue of
placement, permitting the juvenile court to consider new evidence or changed
circumstances that may have occurred during the pendency of the appeal. (Ibid.)
The facts and circumstances of the instant case are very similar to In re C.M.,
although we again acknowledge that In re C.M. required the detriment finding be made
by clear and convincing evidence, and this case does not.
In In re John M. (2006) 141 Cal.App.4th 1564, the appellate court found that the
juvenile court’s stated bases--the child’s wishes, need for services, relationship with his
sister and members of his family, and lack of relationship with the father, as well as the
“paucity of information” about the father, and the mother’s reunification plan--did not
constitute substantial evidence of detriment in returning the child to father’s custody. (Id.
at p. 1570.) In that case, the father, after four years of no contact with his 13-year-old
child, had resumed contact a year prior to the dependency proceeding, and the court
found the previous lack of contact was not the father’s fault. (Id. at pp. 1570-1571.)
Additionally, the social worker had no information that the father could not meet the
child’s special needs, the child’s wishes were not clear, and there was no evidence the
child was strongly attached to his baby sister. (Ibid.)
In In re Patrick S. (2013) 218 Cal.App.4th 1254, the appellate court found the
juvenile court’s stated bases--the child’s wishes, anxiety about moving to his father’s
home, need for continued therapeutic services, and lack of an established relationship
with the father and stepmother, as well as the father’s scheduled deployments and plan to
homeschool the child, and the lack of available child welfare services in the father’s
home state--did not constitute substantial evidence of detriment. (Id. at p. 1262.) In that
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case, the father had served in the Navy and had searched for his son for years; when he
learned of the child’s whereabouts, he immediately came forward and requested
placement, attended all significant hearings, visited and contacted his son whenever
possible, looked into obtaining recommended services through the Navy and his church,
and participated in recommended services. (Id. at p. 1263.) The appellate court found
the record left “no doubt that [the father] is a competent, caring and stable parent”; he had
no criminal history, no referrals to child welfare services, and no indication of substance
abuse or mental illness or any risk factors in his home. (Ibid.)
We recognize that here, the juvenile court found mother was absent for “a variety
of reasons” rather than through no fault of her own, as in In re John M. and In re Patrick
S. In the instant case, there is some evidence in the record that mother could have done
more to assert her parental rights in the family law court. Further, unlike the child in In
re John M., here the minor clearly expressed that he wished to stay placed with his
grandparents. These facts distinguish those cases somewhat.
In In re Luke M. (2003) 107 Cal.App.4th 1412, the appellate court affirmed a
juvenile court’s finding of detriment based on the bond between the subject children and
their siblings. In that case, the children were described as “extremely connected” to their
siblings and the court found them to be “much closer than in normal sibling
relationships” and that separation “would have a devastating emotional impact” on them.
(Id. at pp. 1426-1427.) The social worker testified that one of the children cried every
time she brought up the subject and that he was “ ‘extremely connected to his siblings
and to his relatives and can’t even stand the thought of having to leave them.’ ” (Id. at p.
1418.) The social worker also testified about the siblings’ attachments. (Ibid.) Holding
that consideration of the siblings’ relationship was permissible (id. at pp. 1425-1426), the
appellate court held “[t]he record amply supports a finding that there was a high
probability that moving to Ohio would have a devastating emotional impact on [the
children]. They depended on their siblings for love, support, and security. Since their
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removal, their only request of the social worker was not to be separated. They cried and
became depressed when she spoke with them about the possibility of separating.” (Id. at
p. 1426.) Noting that “a detriment finding may not be supportable based on their
preferences alone,” the appellate court nonetheless found their “preferences may be
considered.” (Ibid.) The Luke M. court also opined on the evidentiary value of the social
worker’s testimony in that case in response to father’s argument of insufficiency: “Social
workers are frequently recognized as experts in assessing risk and placement of children
and selecting permanent plans for children. [Citations.] Although the social worker here
was not formally qualified as an expert, she had been working with these children for
four and one-half months, had observed them together on multiple occasions, and had
frequently interviewed them. The social worker’s interviews with and observations of
the children and her ensuing opinion provided the court with sufficient information to
render its ruling. In the case before us, expert opinion in addition to the social worker's
opinion, although certainly helpful, was not essential.” (Id. at p. 1427.)
Here, there was evidence the minor was bonded with father and his paternal
relatives, but no evidence that he experienced trauma from separation (or any other
trauma) during his extended visits with mother. And, in sharp contrast to In re Luke M.,
here the social worker opined it would not be detrimental to the minor to be returned to
mother’s custody.
In In re A.C. (2020) 54 Cal.App.5th 38, cited by the minor in his briefing, the
father argued the juvenile court’s finding of detriment must be reversed because it hinged
entirely on the absence of a father-daughter relationship. (Id. at p. 43.) The appellate
court rejected his assertion, noting the juvenile court had considered the Department’s
reports and that “one of the Department’s reports contained ‘very clear’ information ‘that
it would be very, almost traumatic, for [daughter] to have to face that kind of move, at her
age.’ After making this finding, the court observed, ‘there is almost no relationship
between the father and the child.’ ” (Ibid.) The appellate court noted the absence of a
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relationship between father and daughter was a permissible factor to consider and that the
daughter’s wishes, though not dispositive, were also a permissible consideration. (Ibid.)
The court concluded the evidence relied on by the juvenile court in that case was
sufficient to support the risk finding, as not only was the daughter attached and
comfortable in her mother’s home, but she “actually fear[ed] th[e] prospect” of living
with the father, as “[h]e is a stranger to her. She has not heard from him in over five
years. Her anxiety about residing with Father is consuming. She cannot sleep.
Daughter’s therapist concludes removing Daughter from her half brother and the only
family she has known in this way would be detrimental to her mental health, affect her
academic stability, and cause ‘considerable emotional strain.’ ” (Id. at pp. 43-44.)
Here, there is no evidence of any such a negative reaction to living with mother by
the minor. There is no evidence of any emotional trauma or even anxiety about living
with mother other than not wanting to leave his current living situation. At the time of
the hearing, mother was no stranger to the minor; he had been going on extended visits to
her home for days at a time and expressed no discomfort other than the distance. There is
no expert testimony--or any testimony for that matter--even suggesting that living with
mother would pose a substantial risk of detriment to the minor’s mental health, affect his
academic stability, or cause considerable emotional strain.
The minor also cites to Constance K. v. Superior Court (1998) 61 Cal.App.4th 689to argue detriment from moving him from his grandparents’ home, but that case is
distinguishable. There was expert testimony in Constance K. that the mother could not
handle return of her children. This evidence, combined with the delay in permanency,
along with the stable foster home the children were currently in, was all considered by the
juvenile court. (Id. at pp. 708-709.) Other than the minor’s currently stable placement,
where he prefers to remain, no such evidence exists here. And here, unlike in Constance
K., contact with his current caregivers will not be severed. To the contrary, his father will
continue to co-parent him, presumably with a great deal of help from the grandparents.
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Clearly, the minor would rather not move to mother’s and he feels comfortable
where he is. But as much as we sympathize with that desire, and consider it relevant, it is
not dispositive; in other words, as we have described above, that is simply not the test.
Here, there was no evidence beyond the minor’s statement of his wishes to support
the finding that risk of substantial detriment to the minor’s emotional well-being was
present should he be returned to mother’s custody. Mother had successfully completed
all her services and there was no evidence she was unable to be a proper parent to the
minor, nor did the court make such a finding. (Cf. Constance L. v. Superior Court (1998)
61 Cal.App.4th 689, 704-708.) Lengthy visits were described by the minor as “fine,” and
he expressed no fear and no safety concerns, even when directly asked. Mother
recognized the importance of the minor’s relationships with father and the paternal
family, describing them as “crucial” for the minor, and intended to foster those
relationships. The Department’s recommendation for the minor’s return ensured that
both parents would retain their parental rights and sought visitation with father and
overnights with the grandparents.
While moving to a new area several hours by car from his previous home would
certainly be a change for the minor, there is nothing in the record to support a conclusion
that the relatively common change in a child’s life of moving to a new school or
neighborhood would create substantial risk of emotional harm to this otherwise mentally
stable minor. Indeed, he had already changed schools while placed with his grandparents
in 2020 when they moved to a different house and school district and there was no
evidence of any trauma noted. There was no testimony about risk of detriment; the only
evidence presented on the critical question before the juvenile court was the social
worker’s assessment that there was no risk. No therapist, counselor, psychologist, or
social worker opined or even suggested that return of the minor to mother would create a
risk of substantial detriment to the minor. (See In re Jasmon O. (1994) 8 Cal.4th 398,
430 [“[w]ithout the testimony of psychologists, in many juvenile dependency and child
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custody cases superior courts and juvenile courts would have little or no evidence, and
would be reduced to arbitrary decisions based upon the emotional response of the
court”].) Nor was there any evidence that any possible detriment or issues the minor may
encounter as a result of placement with mother could not be adequately addressed with
transitionary or therapeutic services. Indeed, the minor’s relationship with mother was
improving over the months as he spent more time with her. Thus, the risk of detriment
was speculative on this record.
As pointed out by the Department in its briefing, the juvenile court was not
required to order the minor immediately removed from the grandparents’ home and
placed with mother, and dependency terminated. Although the time for reunification
services has expired, the juvenile court may, nonetheless, order the minor transitioned to
mother’s home with maintenance services, including counseling. The court, the
Department and minor’s therapist all recognized that conjoint therapy with mother would
be useful for minor in this case; although he was apparently permitted to terminate this
therapy on his own accord after one session, it could be a useful part of a transition order.
Although the minor’s desires and feelings certainly may and should be considered, he is
not permitted to make his own placement decisions. (See In re Luke M., supra, 107
Cal.App.4th at p. 1426.)
The finding by a preponderance of the evidence of substantial risk of detriment to
the minor is not supported by substantial evidence.
DISPOSITION
Let a peremptory writ of mandate issue directing respondent juvenile court to (1)
vacate its orders terminating petitioner’s reunification services and scheduling a section
366.26 hearing, and (2) hold a new review hearing and reconsider returning the minor
C.G. to mother’s custody and any necessary transitional services. The juvenile court may
consider new evidence or changed circumstances that may have occurred during the
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pendency of this appeal. The stay issued by this court is vacated. The decision is final
forthwith as to this court. (Cal. Rules of Court, rule 8.490(b).)
/s/
Duarte, J.
We concur:
/s/
Mauro, Acting P.J.
/s/
Earl, J.
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