In re Mytashai C. CA2/3

Filed 5/3/23 In re Mytashai C. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re MYTASHAI C., et al., B323723
Persons Coming Under the
Juvenile Court Law.
(Los Angeles County
LOS ANGELES COUNTY Super. Ct. No.
DEPARTMENT OF CHILDREN 18CCJP04390G-K)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
N.B.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Lisa Brackelmanns, Commissioner. Affirmed.
Suzanne Davidson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, Stephen Watson, Senior Deputy
County Counsel, for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
N.B. (mother) appeals from the juvenile court’s order
following a contested 12-month review hearing in the dependency
case relating to her five minor children. Mother contends that
the Department of Children and Family Services (Department)
failed to meet its burden of proving that the two oldest children,
referred to here as daughter and son1, would be at risk of
substantial detriment if returned to her custody. We conclude
that substantial evidence supports the court’s order, which we
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
This is Mother’s third appeal of court orders arising from
this dependency case. Mother’s first appeal was from the court’s
order following a dispositional hearing on July 16, 2021. We
affirmed the court’s findings and orders in an unpublished
opinion. (In re M.C. (June 23, 2022, B314143) [nonpub. opn.].)
Mother’s second appeal was from the court’s findings and orders
made at the six-month review hearing. That appeal was
dismissed on January 23, 2023. The present appeal is from the
trial court’s findings and orders entered following the 12-month
review hearing on September 12, 2022.
1 Because the two children relevant to this appeal have the
same initials, we refer to them as daughter and son, meaning no
disrespect to mother or to either child.
2
On July 15, 2021, the court sustained charges against
mother for physical and emotional abuse of daughter (including
allegations that mother struck daughter with her fists and an
extension cord and threatened to kill daughter with gasoline and
by shooting her), substance abuse endangering the children, and
for leaving the children for days at a time without adult
supervision. Mother was ordered to attend parenting classes, to
attend individual counseling for herself and joint counseling with
daughter, to obtain a mental health evaluation, and to submit to
random drug tests. She was also ordered to have a minimum of
nine hours of weekly monitored visits with her children. At the
six-month review hearing, the court reviewed mother’s progress
with her reunification plan and ordered that reunification
services continue while the children remained out of her physical
custody.
In anticipation of the 12-month review hearing, the
Department prepared a report detailing mother’s progress toward
family reunification. That report noted that mother had
completed domestic violence and parenting classes, and was
participating in individual counseling and group sessions for
coping with anxiety. Mother had not, however, obtained a mental
health evaluation and was not attending joint counseling sessions
with daughter, who was “not interested in participating in
anything” with mother. During the six months prior to the
hearing, mother failed entirely to submit to random drug tests.
Mother no-showed 11 times. She tested negative three times on
dates that she selected. Mother made contradictory statements
that she was unavailable to test because she was driving “all over
the County for her business” but also that she did not have
money for gas to visit the children. In its report, the Department
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noted that the drug testing site was very close to mother’s
residence.
The Department reported that mother visited son weekly,
and that son wanted to return to mother’s custody. Son called or
texted mother daily about attending her drug tests. Mother also
visited daughter, but daughter expressed no interest in returning
to live with mother. Mother did not regularly visit the three
younger children.
Mother asked the Department to help her pay for gas to
visit her children, but the Department reported that she failed to
provide follow up information necessary to process her request.
The Department noted that it had given mother gas money in
December 2021 to permit her to visit her children, but that
“mother did not go see her children. Not even for Christmas.”
Overall, the Department concluded that despite completing
certain of the court ordered programs, mother had “not learned”
from them. The Department stated that mother “demonstrate[d]
a lack of accountability,” “continue[d] to blame others for the
consequences of her actions” and was “not forthcoming with the
Department.” The Department accordingly recommended that
daughter and son remain with their respective caregivers.
At the 12-month review hearing, mother requested that the
children be returned to her or, in the alternative, that the court
order unmonitored or extended visits. Following argument, the
court found that although mother had made progress, it was not
“substantial.” The court further found “that continued
jurisdiction [was] necessary because conditions continue to exist
which justified the court taking jurisdiction,” specifically pointing
to mother’s failure to test consistently and “demonstrate her
sobriety.” The court found that the “return of the children to the
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physical custody of the parents would create a substantial risk of
detriment to the children’s safety, creating a continuing necessity
for the appropriateness of the current placement,” language that
was repeated in the court’s written order. The court ordered that
family reunification services continue for another six months.
The court also ordered that mother would be allowed
unmonitored visits with daughter and son after submitting six
consecutive “clean” drug tests. In addition, the court ordered the
Department to “explore all available funds to provide mother
with transportation assistance” for visitation and drug testing.
The court entered its 12-month review order on September
12, 2022. Mother filed a timely notice of appeal on September 16,
2022.2 We have jurisdiction under Welfare & Institutions Code
section 395, subdivision (a)(1), and Code of Civil Procedure
section 904.1, subdivision (a)(2).
DISCUSSION
A. Standard of review
At a 12-month review hearing, the court is required to
return the child to the parent’s physical custody “unless the court
finds, by a preponderance of the evidence, that the return of the
child to their parent . . . would create a substantial risk of
detriment to the safety, protection, or physical or emotional well-
being of the child.” (Welf. & Inst. Code, §366.21, subd (f)(1).)3
The Department bears the burden of proof. (Ibid.)
2 Although the order affects all five children, mother’s
arguments on appeal address only visitation with and custody of
daughter and son.
3 Further statutory citations are to the Welfare &
Institutions Code unless otherwise stated.
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We review the order to determine whether the juvenile
court’s finding of a “substantial risk of detriment” is supported by
substantial evidence. (J.H. v. Superior Court (2018)
20 Cal.App.5th 530, 535; see also In re Kristin H. (1996)
46 Cal.App.4th 1635, 1649.) “We do not pass on the credibility of
witnesses, attempt to resolve conflicts in the evidence or weigh
the evidence. Rather, we draw all reasonable inferences in
support of the findings, view the record favorably to the juvenile
court’s order and affirm the order even if other evidence supports
a contrary finding.” (In re James R. (2009) 176 Cal.App.4th 129,
135; see also In re Isabella F. (2014) 226 Cal.App.4th 128, 137-
138 [same].)
B. Substantial evidence supports the court’s order
Mother contends that substantial evidence did not support
the court’s determination that returning the two children to
mother’s custody would place them at substantial risk of
detriment. She argues that she had completed parenting and
individual counseling and that other aspects of her case plan
were unnecessary or impractical.
In reviewing whether the record contains substantial
evidence to support the court’s finding of detriment, “we must
keep in mind that the purpose of the reunification plan is ‘to
overcome the problem that led to removal in the first place.’ ” (In
re Mary B. (2013) 218 Cal.App.4th 1474, 1483.) The juvenile
court sustained the petition based in part on mother’s substance
abuse. And while the court found that mother had made progress
with her court ordered programs, it also noted that she had failed
to consistently drug test and found that “continued jurisdiction
[was] necessary because conditions . . . exist which justified the
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court taking jurisdiction.” Substantial evidence supported the
court’s finding.
“Detriment can be shown many different ways.” (A.H. v.
Superior Court (2010) 182 Cal.App.4th 1050, 1059.)
Section 366.21, subdivision (f)(1)(B), specifically provides that
parental failure “to participate regularly and make substantive
progress in court-ordered treatment programs shall be prima
facie evidence that return would be detrimental.” (See also
Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763
[same].) The evidence at the hearing showed mother had failed
to make substantive progress in her court-ordered programs. The
Department had noted that despite completing some classes
mother had “not learned” from them and “demonstrate[d] a lack
of accountability.” Regarding the order to submit random drug
tests the evidence was even more clear. Between January and
August of 2022, mother never once submitted to a random drug
test, and no-showed 11 times. “[A] missed drug test, without
adequate justification, is ‘properly considered the equivalent of a
positive test result.’ ” (In re Kadence P. (2015) 241 Cal.App.4th
1376, 1384; see also In re Christopher R. (2014) 225 Cal.App.4th
1210, 1217 [same].) Although mother submitted three negative
tests, they are of little value because they were conducted on
dates mother chose, and therefore not “random.” What is more,
mother offered contradictory explanations for not testing, stating
that “her business” required her to drive all over the county, but
also claiming that she lacked money for gas to attend tests or to
visit her children. And she failed to take up offers from the
Department to test at sites that were closer to her school or any
other location in the county.
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Mother also argues that the court did not take into account
son’s expressed wish that he return to mother’s custody, or to the
statement by counsel for daughter that her relationship with
mother had improved significantly.4 However, as mother herself
acknowledges, a child’s preference is an important but not a
dispositive factor. (In re Patrick S. (2013) 218 Cal.App.4th 1254,
1265 [“[A] child’s preference is not the deciding factor in a
placement decision, even when that child is a teenager.”]; see also
In re John M. (2006) 141 Cal.App.4th 1564, 1570 [13-year-old boy
“was entitled to have his wishes considered [but] he was not
entitled to decide where he would be placed.”].)
4 As regards daughter, at least, the evidence is in conflict:
According to the Department, daughter expressed “no interest in
returning [to] her mother.”
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
HEIDEL, J.*
We concur:
LAVIN, Acting P. J.
EGERTON, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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