L.C. v. Super Ct. ( 2024 )

Filed 1/16/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
L.C., B331041
Petitioner, (Los Angeles County
Super. Ct. No. 22CCJP01555)
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Real Party in Interest.
ORIGINAL PROCEEDING; petition for extraordinary
writ. Philip L. Soto, Judge. Petition granted.
Children’s Law Center of California, Taylor Lindsley and
Sara Taylor, for Petitioner and Minor.
Los Angeles Dependency Lawyers, Law Office of Emily
Berger, Emily Berger and Nicole J. Johnson, for Mother.
No appearance for Respondent.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Sally Son, Senior Deputy
County Counsel, for Real Party in Interest.
______________________
In 2022 then-three-year-old L.C. was detained from his
mother, D.C. (Mother), following her arrest for transporting six
boxes of fentanyl pills with L.C. in the car. After the juvenile
court sustained a petition under Welfare and Institutions Code
section 300, subdivision (b)(1),1 and removed L.C. from Mother’s
care, Mother returned to Mexico (where she had grown up and
her family lived) on the advice of her criminal defense attorney
concerning criminal charges relating to her arrest. She
maintained her positive relationship with L.C. through weekly
video calls and completed a three-month in-patient drug
treatment program, individual counseling, and parenting classes,
as required by her case plan. Mother also submitted to random
drug testing, but the Los Angeles County Department of Children
and Family Services (Department) had concerns about the
validity of the tests performed by Mexico’s child protection
agency, Desarrollo Integral de la Familia (DIF).
At the 12-month status review hearing the juvenile court
terminated Mother’s reunification services and set a hearing
pursuant to section 366.26 to terminate her parental rights and
1 Further undesignated statutory references are to the
Welfare and Institutions Code.
2
consider a permanent plan for adoption. In finding a substantial
risk of detriment to L.C.’s safety and well-being if he were
returned to Mother’s care, the court focused on Mother’s failure to
return to California for drug testing and other services;
speculation that L.C. would not receive necessary developmental
services in Mexico despite assurances from DIF; and Mother’s
refusal to surrender herself in response to the arrest warrant.
L.C. seeks extraordinary writ relief, arguing substantial
evidence does not support the juvenile court’s finding that
returning him to Mother would create a substantial risk of
detriment to his safety or well-being. We agree. Unlike the
criminal justice system, with its punitive purpose and focus on
rehabilitation of the offender, the juvenile dependency system is
designed to serve the best interests of the child and to reunify the
family when it is safe to do so. A parent’s decision not to return
to the United States—whether in response to a criminal
prosecution or the immigration laws, or for some other reason—
should not prevent reunification with the parent’s child where
reunification is in the best interests of the child. This is
especially the case here, where Mother has diligently complied
with her case plan and maintained a bond with L.C., and DIF can
provide services to Mother and L.C. under the continued
supervision of the Department. We now grant the petition.
FACTUAL AND PROCEDURAL BACKGROUND
A. L.C.’s Emergency Removal from Mother and Detention
On April 20, 2022 the Department received a referral for
three-year-old L.C. alleging general neglect and caretaker
absence after Mother was arrested in a parking lot in West
3
Hollywood for transporting six boxes of pills later identified as
fentanyl. A social worker from the Multi-Agency Response Team
arrived at the scene and spoke with the Drug Enforcement
Administration (DEA) agent and Mother. The DEA agent
explained he had arranged for a controlled buy of 70,000 fentanyl
pills, and Mother and another individual arrived in separate cars
with six and two boxes of pills, respectively. L.C. was inside
Mother’s car.
Mother explained to the social worker that someone had
offered her a job to transport the pills. Mother initially stated
this was the first time she brought her son along when
transporting drugs, then indicated it was the first time she had
ever transported drugs. The social worker observed L.C. was
clean, well-groomed, and dressed appropriately, and he did not
have any physical signs of neglect. The social worker was unable
to interview L.C. because of his age.
Following Mother’s arrest, L.C. was placed in foster care.
The United States Attorney filed a Magistrate’s Complaint
against Mother on April 22, 2022 charging her with violation of
title 21 United States Code section 841(a)(1) for manufacturing,
distributing or dispensing a controlled substance, or possessing a
controlled substance with intent to manufacture, distribute or
dispense. On April 25 Mother was released from custody, and the
juvenile court granted an expedited removal order to detain L.C.
from her. The Department reported the DEA had tested and
confirmed the transported pills were fentanyl.
On April 26, 2022 the Department filed a petition on behalf
of L.C. pursuant to section 300, subdivisions (b)(1) and (g),
alleging Mother endangered L.C. by transporting drugs while he
was in the vehicle and failing to make an appropriate plan for his
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care and supervision.2 The juvenile court detained L.C. from
Mother and ordered monitored visitation.
B. The Jurisdiction and Disposition Report and Hearing
A social worker interviewed Mother on May 3, 2022.
Mother was born in Guadalajara, Mexico and came to the United
States when she was 24 years old. Mother reported her childhood
was stable and free from abuse and neglect, and she denied
having any substance abuse or mental health issues. Mother had
been taking care of L.C. since he was born in November 2018 in
Montebello, California. Mother and L.C.’s father had divorced
two years earlier, and Mother was no longer in contact with him.
Mother had no prior criminal history.
Mother stated L.C. was asleep in the car and woke up when
she was arrested. Mother explained why she transported the
pills: “‘I saw it as an easy thing to do, and I needed the
money . . . . I understand that it was a mistake, but I am willing
to do everything I can to rectify this.’” The social worker stated
Mother was “polite,” “sounded remorseful,” and was “willing to
face the consequences of her actions.” The social worker observed
that L.C. appeared to be developmentally on target.
On May 12, 2022 the criminal case against Mother was
dismissed without prejudice. The next day Mother tested
negative for drugs and alcohol.
At the May 20 jurisdiction and disposition hearing the
juvenile court sustained the allegation under section 300,
subdivision (b)(1), that Mother had endangered L.C. by
2 The juvenile court found Nestor T. to be the presumed
father of L.C. The Department conducted due diligence to locate
Nestor but was unable to find him.
5
transporting boxes of fentanyl pills while L.C. was in the vehicle,
and the court removed L.C. from Mother’s care. The court
dismissed the remaining counts. The court ordered Mother to
complete a drug and alcohol program with aftercare, parenting
classes, and individual counseling to address case issues, and to
submit to random on-demand drug and alcohol testing. The court
ordered monitored visitation at least three days a week for two
hours or by phone, with the Department having discretion to
liberalize visitation.
C. The Reunification Period
On May 24, 2022 Mother reported to the social worker that
Mother’s criminal case attorney had advised her that she faced
deportation because her illegal status had been disclosed in the
criminal case. The attorney recommended Mother take the
necessary steps to legalize her status in the United States.
Mother had come to the United States with permission to remain
for six months, but she stayed beyond the permitted time.
Mother planned to return to Mexico, then request permission to
come back legally to the United States so she could reunify with
L.C.
On May 30 Mother traveled to Guadalajara, Mexico, and
the next day she reported to the Department that she had arrived
in Mexico. Mother contacted DIF for assistance in locating
services to comply with her case plan. On June 2 L.C.’s maternal
grandparents arrived in Long Beach, California. They remained
in the United States until the end of August 2022 and visited
L.C. twice a week during that period. They requested that L.C.
be placed with them to live in Guadalajara. On August 5 the
juvenile court granted an ex parte application filed by the
6
Department requesting an International Interstate Compact for
Placement of Child (ICPC) home study be prepared for DIF to
evaluate the maternal grandparents’ home in Guadalajara.
On July 18 Mother reported to the Department that her
criminal case had been reopened. Mother’s attorney advised her
to stay in Mexico and to wait “for a less strict judge to be assigned
to the case.” Mother wanted to return to Los Angeles, but she
planned to follow her attorney’s advice.
During the initial six-month reunification period, Mother
remained in communication with L.C. through video calls. She
also was in frequent contact with the social worker and L.C.’s
caregivers. Mother called L.C. once a week by video for about an
hour each call. According to the caregiver, L.C. “responded to
mother’s affection with smiles and playful behavior during the
call[s]” and “would enjoy to hear mother’s voice.”
On September 22 L.C. was placed with his maternal great-
aunt and great-uncle. Mother consistently had 30-minute calls
with L.C. on Mondays, Wednesdays, Fridays, and sometimes
Saturdays. Maternal great-aunt reported that Mother was loving
and affectionate during the calls, but the calls had a temporary,
adverse impact on L.C.’s mood. Maternal great-aunt believed the
mood change resulted because L.C. missed Mother’s attention
and interaction.
Mother sought assistance from DIF to find an in-patient
drug treatment program. Mother stated she did not have any
drug issues but was willing to participate in a program. DIF
confirmed Mother was participating in parenting workshops and
individual counseling. Mother explained she learned ways to
communicate with her son and to educate him, and she had been
at fault for failing to give him “‘100% quality time.’” DIF reported
7
that Mother “‘accept[ed] personal responsibility for the facts and
work[ed] on the feeling of guilt’” and “‘developed tools to control
her impulses and regulate her emotional state.’” Mother told the
social worker, “‘[W]hat I did was not right, I did not see it at the
time, I put my child in danger. . . . I committed a big mistake and
that is why my son is not with me.’” At the December 12, 2022
six-month review hearing, the juvenile court continued
reunification services.
In January 2023 Mother enrolled in “Vive,” DIF’s three-
month in-patient drug and alcohol program. The Vive
psychologist reported at the end of May that Mother had
completed the 90-day program and continued to attend
workshops at least once a week. Mother explained to the social
worker that she transported drugs because she wanted to be able
to give her son things, but now she realized it was a mistake and
she had put L.C. in danger by exposing him to drugs and the
wrong type of people. Mother understood the harm she had
caused to L.C. and others by her actions and regretted
“participating in something that was fatal for other people.”
The Department reported that Mother was compliant with
her drug and alcohol program, parenting classes, and individual
counseling, but not with random drug testing. The Vive
psychologist told the social worker that Mother consistently
tested negative for drugs while in the program. However, the
social worker had not received the drug testing results, and
therefore, she could not “verify that [Mother] in fact has
remained sober.” Vive’s coordinator told the social worker the
test results were submitted to the department of health in
Mexico, and therefore, Vive did not have access to the results.
8
The Department did not follow up with the department of health
(or Mother) to obtain the test results.
After Mother completed the drug treatment program, she
started having one-hour video calls with L.C. before his bedtime
on Mondays, Wednesdays, and Fridays.3 Mother also called L.C.
every morning before he went to daycare so she could say good
morning and help him have a good day. Mother was “prepared
with activities to engage [the] child and understanding when the
child did not want to engage.” L.C. had a hard time ending the
video calls with Mother and would cry because he did not want
the calls to end.
During this period, the home study for the maternal
grandparents was completed, finding they would be a suitable
placement, had “good values and customs,” adequate housing and
income to cover L.C.’s needs, moral support from their children,
and a “‘willingness and patience to carry out the procedures that
have been requested, showing real interest in supporting their
grandson.” The maternal grandparents continued to have calls
with L.C. on Wednesdays and Fridays for about an hour and a
half each visit. L.C. spoke in English, and the maternal
grandmother spoke in Spanish, but they understood each other.
The Department arranged for L.C. to have a psychological
assessment after the maternal great-aunt expressed a concern
that L.C. may be on the autism spectrum. A psychologist
assessed L.C. for an intellectual disability and autism spectrum
disorder and concluded L.C. did not meet the criteria for either
diagnosis. The psychologist stated a diagnosis of borderline
3 While Mother was in the drug treatment program, she
initially was only allowed to have 10-minute calls with L.C. on
Fridays or Saturdays, and later, video calls on Saturdays.
9
intellectual functioning was indicated and L.C. presented with a
language disorder and speech sound disorder. The psychologist
recommended that L.C. have an individualized education plan
(IEP) and L.C.’s cognitive development be reassessed in a couple
of years. Based on the psychological assessment, the regional
center closed L.C.’s case because there was “no evidence of a
developmental disability that is substantially handicapping.”
In May 2023 the Department contacted DIF to inquire
about programs with developmental supportive services for L.C.
to address the psychologist’s diagnosis. DIF’s Centro de
Rehabilitación Integral (CRI) stated it could provide
developmental services for L.C., including “language therapy,”
provided L.C. was present for an assessment and the maternal
grandparents had guardianship rights to make decisions
regarding L.C.’s needs and services. The Department noted its
concern there would be “unnecessary emotional trauma” from
placement of L.C. with the maternal grandparents “considering
that the child is a U.S. citizen, has resided in the U.S. his entire
life and will need to adapt to a new culture, language and
lifestyle if his placement is in Mexico.” The Department believed
L.C.’s needs would be better met at his current placement with
services facilitated “in his native language of English.” Mother
and the maternal grandparents were Spanish speaking, but L.C.
learned English from his babysitter, and L.C. communicated in
English.
The social worker conducted a risk assessment and
determined the risk level of future abuse by Mother was low
based on Mother’s progress with her case plan. However, the
Department expressed its concern that it was unable to confirm
Mother’s sobriety. The social worker explained, “Mother has not
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submitted to a drug test in a DCFS approved facility because she
has chosen to abandon her child and flee the country in order to
avoid criminal prosecution. As such, the [D]epartment remains
concerned that [M]other may be continuing to engage in drug
trafficking and other criminal activities that may endanger the
child’s safety and well-being.” The Department recommended
terminating family reunification services and proceeding to a
permanent plan for adoption by the maternal great-aunt and
great-uncle.
On June 18, 2023 DIF’s mental health and substance use
program coordinator reported that DIF intended to request
Mother submit to four random drug tests, and he sent the social
worker a photograph of the tests that would be used. Vive
subsequently reported to the Department that Mother had
completed four random drug tests under the supervision of the
head doctor (on June 21, June 28, July 4, and July 7), and it
attached photographs of the negative tests.
D. The Contested 12-month Permanency Review Hearing
L.C. and the Department submitted briefs prior to the
contested permanency review hearing (§ 366.22) held on
August 2, 2023. L.C. argued the Department had not met its
burden to establish a substantial risk of detriment because
Mother completed her case plan, acknowledged her prior conduct
was a mistake, showed personal growth, and maintained her
relationship with L.C.
The Department argued there was a substantial risk of
detriment because Mother did not adequately drug test after she
left Los Angeles, other than in the drug treatment program,
which did not provide evidence of her negative tests, and the
11
juvenile court should give no weight to the last four drug tests
because they were administered using expired tests. The
Department also argued L.C. was a “special needs” child and
Mother was not prepared to take care of him. Further, Mother
had an outstanding warrant for her arrest.
At the contested hearing, the juvenile court observed that if
Mother had returned to the United States, she would have had
access to services to complete her case plan. The court contrasted
cases in which the parents were incarcerated or deported and
unable to return legally to receive services to parents like Mother
who voluntarily left the jurisdiction. In the former instances, the
Department had an obligation to provide services and arrange for
drug testing, but in the latter, the parents “are the ones who are
making the reasonable efforts unreasonable.” The court reasoned
as to Mother’s failure to complete random drug testing, “just to
assume that the programs she went through proves that she’s
clean and sober really doesn’t answer that question which could
have been easily answered had she simply come back to Los
Angeles.” The court added that Mother had not “come back for a
visit in California with the child since she left, when she could
have done that at any time, and she could have cleared up this
issue with the warrant at any time by simply coming in and
surrendering herself.” The court speculated that if Mother did
not have a drug history, “she might well have just gotten a
minimal amount of jail time, or maybe no jail time and just
probation.”
The juvenile court also stated that L.C. was “a special-
needs child,” and the court had no confidence that adequate
services would be provided to L.C. in Mexico. Further, it was not
in L.C.’s best interest “to be transported to Mexico without
12
knowing exactly what services and where and how and who will
provide them and who will be responsible.” Moreover, L.C.’s
developmental needs were being “adequately addressed by the
family who has the child here in Los Angeles County.” The court
added that it did not believe Mother would follow the court’s
orders, reasoning that Mother’s failure to appear in response to
the warrant was as if Mother was saying “I don’t care what
courts order; I’m going to do what I think I want to do.”
Therefore, the court had “no reason to believe that she will
cooperate.”
The juvenile court found by clear and convincing evidence
that returning L.C. to Mother presented a substantial risk of
detriment; the Department made reasonable efforts to return
L.C. to Mother; and Mother was not in substantial compliance
with her case plan. The court terminated reunification services,
finding there was no substantial probability of returning L.C. to
Mother by the 18-month date because “Mother has not
consistently, regularly contacted or visited; not made significant
progress in resolving problems that led to the removal; and not
demonstrated capacity and ability to complete objectives of the
treatment plan and provide for child safety, protection, physical,
and emotional wellbeing.” The juvenile court scheduled a
section 366.26 permanency planning hearing, which was later
continued to March 26, 2024.
L.C. timely filed a notice of intent to file a petition for
extraordinary writ, and on September 11, 2023 L.C. filed his
petition challenging the order setting the section 366.26 hearing.4
4 Mother also timely filed a notice of intent to file a writ
petition. Mother’s counsel filed a notice pursuant to Glen C. v.
13
On December 18, 2019 we issued an order to show cause why
relief should not be granted.
DISCUSSION
A. Governing Law and Standard of Review
During the reunification stage after a child has been
removed from a parent’s custody, “the court ordinarily must order
child welfare services designed to facilitate the reunification of
the family. [Citations.] Such services may, depending on the
case, include evaluations and assessments, counseling, parent
education, substance abuse treatment and testing, and other
forms of assistance.” (Michael G. v. Superior Court (2023)
14 Cal.5th 609, 624 (Michael G.).) Reunification services
“‘“implement ‘the law’s strong preference for maintaining the
family relationships if at all possible.’”’” [Citation.] This is
because ‘services enable [parents] to demonstrate parental fitness
and so regain custody of their dependent children.’” (Ibid.;
accord, Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415,
1424 [“Until services are terminated, family reunification is the
goal and the parent is entitled to every presumption in favor of
returning the child to parental custody.”].)
At the 12-month status review hearing, the juvenile court
“shall order the return of the child to the physical custody of their
Superior Court (2000) 78 Cal.App.4th 570 advising the court she
was unable to file a petition for extraordinary writ on the merits,
and we provided Mother an opportunity to file a supplemental
brief in support of her petition. Mother did not file a
supplemental brief. However, Mother’s counsel subsequently
filed a joinder in L.C.’s petition.
14
parent or legal guardian unless the court finds, by a
preponderance of the evidence, that the return of the child to
their parent or legal guardian would create a substantial risk of
detriment to the safety, protection, or physical or emotional well-
being of the child.” (§ 366.21, subd. (f)(1).) “That standard, while
vaguely worded to be sure, must be construed as a fairly high
one. It cannot mean merely that the parent in question is less
than ideal, did not benefit from the reunification services as
much as we might have hoped, or seems less capable than an
available foster parent or other family member.” (David B. v.
Superior Court (2004) 123 Cal.App.4th 768, 789.) The
Department bears the burden of proving detriment. (Ibid.)
In determining detriment, the court shall consider, among
other things, “the social worker’s report and recommendations,”
and “the efforts or progress, or both, demonstrated by the
parent . . . and the extent to which they availed themselves of
services provided, taking into account the particular barriers to a
minor parent or a . . . deported parent’s . . . access to those court-
mandated services and ability to maintain contact with their
child.” (§ 366.21, subd. (f)(1)(C).) The court shall “make
appropriate findings” and “specify the factual basis for its
decision.” (Id., subd. (f)(1)(C) & (D).)
If detriment is found at the 12-month review hearing, the
juvenile court generally has three options: (1) continue the case
for up to six months for an 18-month permanency review hearing
under section 366.22 (see § 366.21, subd. (g)(1)); (2) schedule a
selection and implementation hearing to be held within 120 days
under section 366.26 (id., subd. (g)(4); or (3) order the child to
remain in foster care (id., subd. (g)(5)). The court shall continue
the permanency review hearing under section 366.21,
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subdivision (g)(1), “only if it finds that there is a substantial
probability that the child will be returned to the physical custody
of their parent or legal guardian and safely maintained in the
home within the extended period of time or that reasonable
services have not been provided to the parent or legal guardian.”
The court may schedule a section 366.26 selection and
implementation hearing under section 366.21, subdivision (g)(4),
“‘only if’ it finds ‘there is clear and convincing evidence that
reasonable services have been provided or offered to the parents
or legal guardians.’” (Michael G., supra, 14 Cal.5th at p. 625; see
§ 366.21, subd. (g)(4).)
We review the juvenile court’s finding of detriment for
substantial evidence by considering whether the evidence,
contradicted or uncontradicted, supports the court’s finding.
(Georgeanne G. v. Superior Court (2020) 53 Cal.App.5th 856, 864;
In re B.S. (2012) 209 Cal.App.4th 246, 252.) “We resolve all
conflicts in support of the determination, indulge in all legitimate
inferences to uphold the findings, and may not substitute our
deductions for those of the juvenile court.” (Georgeanne G., at
p. 864; accord, In re I.J. (2013) 56 Cal.4th 766, 773.) “However,
‘[s]ubstantial evidence is not synonymous with any evidence.
[Citation.] To be substantial, the evidence must be of ponderable
legal significance and must be reasonable in nature, credible, and
of solid value.’” (Georgeanne G., at p. 865; accord, In re J.A.
(2020) 47 Cal.App.5th 1036, 1046 [while substantial evidence
may consist of inferences, any inferences must rest on the
evidence; inferences based on speculation or conjecture cannot
support a finding].) “‘A trial court abuses its discretion when it
applies the wrong legal standard or its factual findings are not
16
supported by substantial evidence.’” (In re R.F. (2023)
94 Cal.App.5th 718, 728.)
B. The Department Failed To Meet Its Burden To Show Return
of L.C. to Mother Would Create a Substantial Risk of
Detriment
1. Substantial evidence does not support the juvenile
court’s finding of detriment based on Mother’s
purported failure to comply with her case plan’s drug
testing requirement
As the Department acknowledged, Mother completed a
drug and alcohol program with aftercare and participated in
parenting classes and individual counseling to address the issues
that caused her to lose custody of L.C. Despite the challenges of
complying with her case plan in Mexico, Mother diligently sought
out services and completed these case plan requirements.
Mother demonstrated insight into the issues that caused her to
lose custody, and (contrary to the court’s finding), Mother
consistently maintained contact with L.C. through video calls
multiple times a week and calls every weekday before day care.
All reports indicated Mother was loving and affectionate toward
L.C., and he enjoyed his video calls with Mother.
With respect to random drug testing, the two tests Mother
took while in the United States were both negative. DIF’s three-
month in-patient drug and alcohol program (Vive) confirmed that
Mother consistently tested negative while in the program.
Although the Department points out it was unable to confirm the
negative tests because Vive failed to send the test results to the
Department, the Department never followed up with the
department of health in Mexico to obtain the test results.
17
Instead, the Department required Mother to submit to additional
drug testing. Mother promptly coordinated with DIF to complete
the testing requirement, and she took four drug tests that DIF
reported were negative. The Department did not raise any
concerns about the test results with Mother or DIF or request
Mother submit to additional testing. Indeed, the Department’s
July 5 and 10, 2023 last minute information reports for the court
described the four negative tests but did not state the
Department had any concerns about the tests. It was not until
the Department on July 24 filed its opposition to L.C.’s request to
be returned to Mother that the Department objected to the four
test results on the basis the tests had expired prior to their use.
The juvenile court questioned whether Mother had
remained sober notwithstanding her completion of the drug
treatment program and submission to drug testing by DIF,
noting that if Mother had returned to Los Angeles, the
Department could have confirmed her sobriety. Certainly it
would have been easier for the Department if Mother submitted
to drug testing in Los Angeles, but nothing in the dependency
laws requires a parent to complete services in the United States
to reunify with a child. Nor does anything in the record suggest
DIF, in sponsoring the Vive drug treatment program and
performing drug testing, was not equally committed to the
sobriety of Mother and safety of L.C. Moreover, there is no
evidence that Mother ever had a substance abuse problem or
tested positive for drugs.5 To the contrary, Mother complied with
5 The juvenile court did not base its concerns about Mother’s
sobriety on her transport of the boxes of fentanyl pills, but rather,
on Mother’s failure to submit to drug testing by the Department
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every request by the Department or DIF to drug test. This case
therefore differs sharply from those in which a parent refuses to
submit to drug testing or misses a test, which courts properly
treat as a positive test. (See In re Natalie A. (2015)
243 Cal.App.4th 178, 186 [missed drug tests supported
“reasonable inference . . . that father’s marijuana use was more
frequent than the one admitted instance”]; In re Christopher R.
(2014) 225 Cal.App.4th 1210, 1217 [missed drug test “properly
considered the equivalent of a positive test result”], disapproved
on another ground in In re N.R. (2023) 15 Cal.5th 520, 560,
fn. 18.) On this record, substantial evidence does not support the
juvenile court’s implied finding Mother failed to maintain her
sobriety, placing L.C. at a substantial risk of detriment.
2. Substantial evidence does not support the juvenile
court’s finding that L.C.’s developmental needs could
not be met in Mexico
Substantial evidence likewise does not support the juvenile
court’s finding that L.C. was a “special needs” child whose
developmental needs could not be met in Mexico. The
psychologist concluded L.C. did not meet the criteria for an
intellectual disability or autism diagnosis, and the local regional
center found L.C. did not have a substantially handicapping
developmental disability. However, the psychologist diagnosed
L.C. with borderline intellectual functioning, a language disorder,
and a speech sound disorder. Contrary to the juvenile court’s
conclusion that there was no information on “what services really
in the United States (or, impliedly, adequate drug testing by
DIF).
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will be provided or where” in Mexico, the record shows that CRI,
the DIF-sponsored agency, contacted the social worker to confirm
it could provide developmental services, including language
therapy, to address L.C.’s needs as long as he was present for the
assessment, and the maternal grandparents (or Mother) could
make decisions on his behalf. Nothing in the record supports the
court’s conclusion that if L.C. went to Mexico, he would not
receive the services he needed.
The Department contends L.C.’s educational needs would
be better met by his current caregivers in his “native language of
English.” However, the social worker reported that L.C.
understands both English and Spanish and is bilingual.
Moreover, even if L.C.’s current caregivers could secure superior
educational services for L.C., which is far from clear, this does
not support a finding of substantial risk of detriment to L.C. (See
David B. v. Superior Court, supra, 123 Cal.App.4th at p. 789.)
3. Mother’s failure to return to Los Angeles and to
surrender to law enforcement do not support a finding
of substantial risk of detriment
The juvenile court inferred from Mother’s failure to
surrender in response to the outstanding warrant that she would
not abide by the court’s orders after L.C. was released to her care,
and further, the court would have no control over Mother once
L.C. was in Mexico. While it was appropriate for the juvenile
court to consider the outstanding warrant and that Mother was
living in Mexico in determining whether L.C. could be safely
returned to her care, the court’s “[p]erceptions of risk, rather
than actual evidence of risk, do not suffice as substantial
evidence.” (In re G.Z. (2022) 85 Cal.App.5th 857, 883.) Notably,
20
the Department’s 12-month review report concluded the risk of
future abuse by Mother was low based on Mother’s progress with
her case plan. Further, the court’s speculation that Mother
would not follow the Department’s orders is not supported by
evidence in the record. While Mother was in Mexico, she
consistently communicated with the Department and the
caregivers, she was diligent in finding and completing all services
the court had ordered, and she followed the Department’s orders
in submitting to drug testing. Mother had no prior criminal
record and no record of criminal activity since her arrest on
April 20, 2022.
In addition, DIF cooperated with the Department in
providing services to Mother, and DIF was prepared to provide
services to L.C. Although the dependency laws do not address
the return of a dependent child to a parent in a foreign country
under the supervision of the Department, nothing prevents such
a return. As the Court of Appeal explained in In re Sabrina H.
(2007) 149 Cal.App.4th 1403, 1412 in rejecting the mother’s
argument that her children could not be placed with their
maternal grandfather in Mexico, “[The mother] has not pointed to
the existence of any manifest reason supporting a ban on child
placements in a foreign country. If a foreign placement is in the
best interest of a child, such a ban would result in an injustice.
For all these reasons, we decline to . . . read an implicit ban on
placing dependent children in foreign countries.” The court in
Sabrina H. observed that although the Welfare and Institutions
Code does not provide for placement of dependent children in
foreign countries, the Uniform Child Custody Jurisdiction and
Enforcement Act (Fam. Code, § 3400 et seq.) applies to juvenile
dependency proceedings and allows for such placements.
21
(Sabrina H., at p. 1412.) Here, the case is even stronger for
reunifying a child with a parent in a foreign country.
L.C. relies on In re A.G. (2017) 12 Cal.App.5th 994, 997
(A.G.) to support his position that Mother’s return to Mexico to
avoid deportation should not prevent her reunification with L.C.
In A.G., the father challenged the reasonableness of court-
ordered services the Department provided after he was deported
to Mexico following his arrest resulting from his assault of the
mother. The court concluded the juvenile court’s finding that the
Department “could not provide services to A.J. because he was
responsible for his own deportation [was] legally indefensible.”
(Id. at p. 1002.) The court observed, “Just as there is no “‘“Go to
jail, lose your child”’” rule in California [citation], there is no ‘Go
to Mexico, lose your child’ rule in California.” (Id. at pp. 1002-
1003.) We agree with the principle articulated by the A.G. court
that a parent’s absence from the country due to the immigration
laws should not control whether under the dependency laws a
child should be returned to a parent’s custody. Moreover, given
the overriding concern under the dependency laws for the best
interests of the child, this principle should apply regardless of
whether the parent was involuntarily deported or elected to leave
the country.
While we do not condone Mother’s evasion of the criminal
charges by remaining in Mexico, the criminal justice and
dependency systems have different goals.6 As the Supreme Court
6 The Legislature has recognized that parents in the
dependency system may also be subject to the criminal justice
system. In this circumstance, the dependency laws do not
penalize the parent for violating the law, instead expressly
22
recently explained in Michael G., supra, 14 Cal.5th at page 623,
“The purpose of California’s dependency law is ‘to provide
maximum safety and protection for children who are currently
being physically, sexually, or emotionally abused, being
neglected, or being exploited, and to ensure the safety, protection,
and physical and emotional well-being of children who are at risk
of that harm.’” (Quoting § 300.2, subd. (a).) Consistent with this
goal, the dependency laws focus on the best interests of the child
at each stage of the proceeding. (See In re A.J. (2013)
214 Cal.App.4th 525, 536 [“‘[t]he fundamental premise of
dependency law is to serve the best interests of the dependent
child’”].) Further, during the reunification stage, “[t]he very
purpose [of the dependency laws] . . . is to facilitate services that
promote the preservation of the family before the court must
finally determine whether the family can, in fact, be preserved.”
(Michael G., supra, 14 Cal.5th at p. 634; see In re A.B. (2022)
79 Cal.App.5th 906, 931 [before termination of reunification
services, “family preservation is the primary focus and the
“‘parent’s interest in reunification is given precedence over the
child’s need for stability and permanency’”].) Accordingly,
notwithstanding her outstanding warrant, Mother’s reunification
with L.C. must be prioritized if reunification may be achieved
safely without risking L.C.’s well-being.
Although the juvenile court commented that if Mother had
turned herself in she could have resolved her criminal case
without jail time and completed her services in the United States,
requiring the Department to provide services to incarcerated
parents and to extend the period of services where appropriate.
(See § 361.5, subd. (a)(3)(A).)
23
the court’s conjecture was not based on anything in the record.7
Moreover, the fact Mother was avoiding her criminal case
obligations does not mean returning L.C. to Mother’s care in
Mexico, with the support of the maternal grandparents (who
were found to be suitable for placement), would be detrimental to
L.C. The Department failed to show that returning L.C. to
Mother’s care in Mexico would adversely impact L.C.’s safety,
protection, or physical or emotional well-being. Moreover, L.C.
could be returned with family maintenance services provided by
the Department or DIF and appropriate conditions to ensure a
safe return.8
We therefore grant the writ and order the juvenile court to
vacate its order made at the August 2, 2023 hearing setting a
selection and implementation hearing under section 366.26 and
finding a substantial risk of detriment if L.C. were returned to
Mother. However, because more than five months have passed
since the 12-month review hearing, we do not order the
immediate return of L.C. to Mother. Rather, the juvenile court
must hold a new review hearing under section 366.21 that
focuses on any developments in the case since the last hearing. If
no new developments establish a substantial risk of detriment to
7 Mother was initially charged with a violation of title 21
United States Code section 841(a)(1), which, depending on the
quantity of drugs at issue, could result in a minimum 10-year
sentence. (See 21 U.S.C § 841(b)(1)(A)(vi).)
8 For example, L.C. and the Department agree that, at least
based on conditions existing at the time of the court’s order
terminating reunification services, if L.C. were returned to
Mother, his return should be conditioned on Mother and L.C.
living with the maternal grandparents in Guadalajara.
24
L.C. if he is returned to Mother, he must be returned to her care,
with any reasonable orders necessary to ensure a safe return. If
new developments support a different result, the court may make
appropriate orders in light of such a finding.
DISPOSITION
The petition for extraordinary writ is granted. Let a
peremptory writ of mandate issue directing the juvenile court to
(1) vacate its order setting a hearing for L.C. under
section 366.26 and (2) set a continued 12-month review hearing
at the earliest date that protects the rights of the parties to
prepare their case. At the new hearing, consistent with this
opinion, the court is to consider evidence previously presented
and any developments subsequent to August 2, 2023, including
information relevant to L.C.’s safe return to Mother. In the
interest of justice, this decision shall become final as to this court
five days from the date it is filed. (Cal. Rules of Court, rule
8.490(b)(2)(A).)
FEUER, J.
We concur:
SEGAL, Acting P. J. EVENSON, J.*
* Judge of the Alameda County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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