Filed 6/23/26 In re L.B. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re L.B. et al., Persons Coming Under
the Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E086258
Plaintiff and Respondent, (Super.Ct.Nos. J300903 &
J300904 & J300905
v.
OPINION
B.B.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes,
Judge. Reversed and remanded with directions.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant
and Appellant.
Laura Feingold, County Counsel, and David Guardado, Deputy County Counsel,
for Plaintiff and Respondent.
1
INTRODUCTION
B.B., is the Mother of son L.B. (19 months old at the time of removal), daughter
K.B., age 7, and son C.B., III (hereafter referred to as C.B.; age 10). Mother appeals
from an order terminating her reunification services at the six-month review hearing
(Welf. & Inst. Code, § 361.21, subd. (e)),1 and ordering a permanent plan of planned
permanent living arrangement (PPLA) or legal guardianship for the children, who were a
sibling set, in which one child was under the age of three.
The family came to the attention of the San Bernardino County Children and
Family Services (CFS or Department) after C.B. Jr. (Father) shot Mother and C.B. while
intoxicated. Reunification Services were denied as to Father but ordered for Mother, who
completed the plan requirements. However, she used marijuana for pain management
(with a medical recommendation) and tested positive or failed to test for multiple random
drug tests. Mother’s marijuana use ultimately led to the termination of her services and
the adoption of the permanent plan.
On appeal, Mother argues there is insufficient evidence to support the juvenile
court’s findings that (a) return of the children to the Mother’s custody would be
detrimental, and (b) it was unlikely the children would be returned with the provision of
additional services, such that the order terminating services and adopting a permanent
plan was an abuse of discretion. We requested supplemental briefing on the question of
1 All further statutory references are to the Welfare and Institutions Code unless
otherwise specified
2
whether reasonable services had been provided to Mother. We reverse the orders
terminating services and adopting a permanent plan.
BACKGROUND
In May 2024, an immediate response referral was received by CFS indicating that
Mother had been shot in the neck, and that C.B., then 10 years of age, was wounded in
the abdomen by the same bullet that passed through Mother. Law enforcement responded
to the call to discover that Mother had a gunshot to the neck and C.B. had a gunshot
wound to his stomach, so both were airlifted to Loma Linda Hospital. The Father was
detained by law enforcement as a suspect based on video evidence showing him throwing
a backpack from the motel room; the backpack contained a gun. Because Father was
arrested for attempted murder, among other charges, and Mother was incapacitated in the
hospital, the children were taken into emergency custody.
A detective interviewed K.B. at the police station following the emergency
response. In that interview, K.B. related that she had dinner at her aunt’s house and then
went back to their motel room with her Mother, her Father, L.B., and C.B. K.B. indicated
she was asleep and did not hear anything, but that her Mother woke her up and told her to
get help, so K.B. went to a neighbor’s door. K.B. indicated that Mother was “ ‘bleeding
on her back,’ ” and that both L.B. and C.B. were asleep. K.B. denied seeing a gun in the
room.
The Department’s initial investigation revealed the family was living in a motel,
and the family had a history of domestic violence and substance abuse. K.B was dressed
in pants, T-shirt, and socks, with no shoes or jacket, while L.B. was dressed in a jacket,
3
long-sleeved sweatshirt, pants, and a dirty diaper, with no shoes or socks. The clothing of
both L.B. and K.B. was dirty, and both children smelled badly, though K.B.’s hair was
neatly done in braids with beads. K.B. indicated that the parents screamed at one another
and smoked “ ‘something you are not supposed to smoke.’ ”
The parents also had a child welfare history involving multiple dependencies, one
in which Mother tested positive for marijuana at the birth of a sibling of the children,
which resulted in the termination of their parental rights to that sibling in 2017. In 2016,
a dependency involving C.B. was initiated upon allegations of severe and general neglect,
and physical abuse of C.B. by both parents. In that dependency, Father’s services were
terminated but Mother reunified with C.B., who was returned to Mother’s custody.
Thereafter, between 2017 and 2022, there were four unfounded referrals for
neglect and/or abuse. In January 2024, an inconclusive finding was made after
investigating an allegation of neglect by the parents respecting all three of the minors
involved in the current matter, C.B., K.B., and L.B., which was followed by the current
case, in May 2024, when Father shot Mother, injuring both Mother and C.B. Both
Mother and C.B. required surgery for their injuries, described as “critical,” or “critically
stable.”
Shortly after the emergency removal, a social worker interviewed K.B., who
disclosed her Mother and Father screamed loudly at one another, which made K.B.
scared, sad, and angry, but K.B. denied seeing any physical domestic violence. K.B.
described drugs as “ ‘something you are not supposed to smoke’ ” but denied seeing
anyone in the home smoking.
4
On May 8, 2024, the Department filed an original petition on behalf of the three
children, alleging the children came within the provisions of section 300, subdivisions
(a), (b)(1), (g), and (j). Specifically, the petition alleged Father physically abused C.B.
and engaged in domestic violence with Mother, that Mother engaged in domestic
violence with Father, that both Father and Mother have a problem with substance abuse,
that Father was incarcerated and Mother was hospitalized, leaving the children without
provision for support, that C.B.’s abuse by Father placing C.B.’s sibling at significant risk
of similar harm, that both parents had a prior dependency respecting a sibling and failed
to benefit from services resulting in termination of parental rights, and that Father had a
second dependency regarding a different sibling and that Father’s reunification services
were terminated. On May 9, 2024, the children were ordered detained with a foster
parent.
The social worker interviewed Mother for the jurisdiction report on May 20, 2024,
learning that domestic violence began shortly after the birth of K.B., and that Mother had
obtained a domestic violence restraining order against Father in January 2024, and did
what she was supposed to do, including making police reports and obtaining the
restraining order, to protect against domestic violence. Mother admitted she used
marijuana for severe back pain and that she had a medical recommendation for that use.
A copy of the medical marijuana recommendation was subsequently provided to the
social worker. On May 21, 2024, Mother’s random drug test was positive for the
presence of marijuana.
5
The jurisdiction report included statements by C.B. and K.B. Regarding the
incident that led to the instant case, C.B. informed the social worker that they had gone to
visit their aunt, and, when they returned, Father grabbed scissors and tried to stab Mother
and then removed a firearm from a backpack on the bed, put a clip in it, and fired the gun.
Later, C.B. said that the shooting was an accident that occurred as Father tried to remove
the clip from the gun when it fired.2 C.B. reported that Mother did not drink but that
Father always drank and got mad.
K.B. denied there was any physical abuse in the home by Mother or Father
and denied witnessing the incident that led to CFS involvement. K.B. was
receiving Inland Regional center services for social-emotional delay. L.B., who
was 19 months when detained, was not interviewed; the report notes he was born
prematurely and had lung issues. Mother received a supplement from IHSS (In
Home Supportive Services) on L.B.’s behalf. Mother indicated L.B. was diagnosed
with congenital heart disease and retinopathy of prematurity at birth.
Multiple relatives, both maternal and paternal, sought relative placement
consideration after the detention. The social worker also inquired about Native American
ancestry, and learned that the paternal grandmother may have Cherokee or Blackfoot
ancestry. After notices were sent, the Eastern Band of Cherokee Indians responded that
none of the children were registered as members or eligible for membership in that tribe.
2 It was learned that paternal relatives were discussing the case with C.B., who
would be a witness in his Father’s case, in order to minimize Father’s criminal liability.
6
The jurisdictional hearing was initially called for hearing on June 11, 2024. The
court obtained additional information from relatives regarding Native American ancestry,
ordered Mother to drug test that day, and continued the matter.
Prior to the next hearing, the social worker submitted Form 6.7, additional
information to the court, to report that mother had drug tested on June 11, 2024, as well
as June 21, 2024; the results of the June 11 test were positive for alcohol and marijuana,
while the results of the June 21 test were positive for marijuana only. The additional
information also related that Mother had missed one visit, and that at another visit she
became upset with the caretaker of the children, because the caretaker had told C.B. he
was “nasty” for not flushing the toilet.
The Department filed an amended petition on July 5, 2024, modifying certain
individual allegations. As to L.B. and C.B., an allegation labeled b-9 was added,
asserting that Mother placed L.B. at risk because Father had been ordered to have
supervised visits in 2017 (although the amended petition omitted to state that Mother
permitted unsupervised visits). As to K.B., the same allegation was added as b-8. The
amended allegations “don’t track” with the separate petitions; there were other allegations
that were duplicative: for example, allegations b-5 and b-6 of L.B.’s petition were
identical.
The continued jurisdiction/disposition hearing took place on July 8, 2024. The
parents denied the allegations of the amended petition and offered no affirmative
evidence. County counsel requested that the court dismiss the allegations pursuant to
section 300, subdivision (g) as to Mother, who was no longer hospitalized, as well as the
7
duplicative allegation. Mother’s counsel argued that the allegations against Mother
respecting her marijuana use, allegation b-8, which was not alleged to have interfered
with her parenting, was for pain relief, should be dismissed. Counsel also informed the
court that Mother was leveling off her use, but that it remained in her system for 30 days.
The court found the substance abuse allegations and the allegations relating to her
leaving the children without provisions against Mother were not true, but found the
allegations of domestic violence (b-5), and the sibling allegation that Mother had a prior
dependency case in which her parental rights were terminated (j-12) were true; it found
all the allegations against Father were true.
The children were declared dependents of the court, removed from both parents,
and maintained in their foster home. The court deemed Father to be the presumed father
of the children. Because the children were removed as a sibling group, in which one
child was under the age of three, the court admonished the parents that services would be
limited to six months. The court denied reunification service to Father pursuant to
section 361.5, subdivision (b)(6) and (b)(10), but granted reunification services for
Mother, to include outpatient treatment or counseling, as well as drug testing, relating to
substance abuse. Regarding the outpatient treatment, the court stated: “I don’t mind if
that is dealt with in counseling, and if the counselor recommends an outpatient that might
be an appropriate way to go, but from the outset, I’m going to order outpatient, based on
what I saw because of the mom’s lack of candor, and I think it may be an issue that’s
going to impede reunification, so I’m doing that.”
8
The court ordered visitation for Mother but suspended visits for paternal relatives
pending receipt of a packet indicating what safety measures were being taken and that the
relatives were not discussing matters with the children. It also directed a three-week
hiatus in Mother’s visits with a direction that Mother obtain training to address her
conduct at visits respecting the caretaker. The court also directed the Department to
provide updates regarding Native American ancestry as well as the status of the maternal
grandmother’s placement assessment being conducted by RFA (Resource Family
Approval program).
On January 8, 2025, the social worker submitted the six-month status review
report, for the review hearing to be conducted pursuant to section 366.21, subdivision (e).
The report recommended that the children remain in their placement and that the matter
be continued for 60 days to allow the mother time to find appropriate housing, and that
when Mother obtained stable housing, the Department recommended that the children be
returned to Mother under a plan of family maintenance. The report indicated that the
maternal grandmother’s approval for placement by RFA was pending, and that no other
paternal or maternal relatives had come forward to establish a relationship with the
children, although the children had repeatedly expressed a desire to reconnect with the
paternal grandmother, aunts and cousins.
The report also noted that Mother had made significant progress on her case plan,
was actively seeking housing, and had attended visits as her health permits. Mother had
completed all of the court-ordered services, participated fully, and benefitted from them,
including individual counseling, parenting training, and domestic violence classes. The
9
social worker noted that Mother takes responsibility for her actions and has had no
contact with Father.
The report notes that Mother’s case plan included the services of individual
counseling, parenting classes, and drug testing but the Department did not provide
Mother with a drug test referral until November 22, 2024, at which time she was unable
to test because when she went to test, she received a form stating that she was not on the
list. This situation re-occurred on December 20, 2024, when, once again, she received a
form indicating she was not on the list. Thus, prior to the submission of the status review
report on January 5, 2025, Mother had not been able to test. Further, the report reveals
outpatient drug treatment services were not offered or provided, despite the dispositional
order.
The social worker indicated in the report that C.B. was experiencing mental health
challenges, including anxiety, jumping out of moving vehicles, and running away from
the placement. K.B. expressed the desire to return home with her parents, although
neither she, nor L.B., showed any signs of emotional distress.
Regarding visits, the report indicates Mother has visited regularly with the
children twice per week, for two hours each, maintaining a positive and respectful
demeanor, and engaging with all of the children. The children informed the social worker
that their paternal relatives are very important to them and requested more telephone
contact and visits with relatives. The report concluded by stating that it was in the
children’s best interests to return them to Mother once she has suitable housing.
10
On February 13, 2025, the social worker submitted another additional information
report, to apprise the court that Mother needed funding assistance for housing, and that
she had missed two drug tests, on January 3, 2025, and February 4, 2025. This update
included information that on January 8, 2025, Mother tested positive for marijuana,
which Mother stated she used for pain.
On February 19, 2025, the matter came for hearing respecting the six-month
review hearing. At the hearing, the parties and the court discussed the fact that due to
circumstances not attributable to Mother, her name was not on a list for testing when she
reported for testing. Acknowledging the failure to test was not Mother’s fault, the court
directed her to submit for testing that day, and, if the test were negative, the court agreed
to grant Mother unsupervised visitation. Counsel for the minors informed the court that
C.B. wanted visits with his paternal aunt. The matter was continued. There was no
mention of the lack of drug treatment services or the possibility that services would be
terminated.
On February 19, 2025, proceedings related to the six-month hearing resumed. At
the hearing, Mother’s counsel discussed Mother’s marijuana use, reminding the court that
Mother had been shot by the Father and had been in considerable pain, and she was
concerned about using, and becoming dependent upon, pain medication. However,
Mother also indicated she was committed to reunification with the children, was in the
process of renting a house, and believed she could discontinue her marijuana use “cold
11
turkey.” She reminded the court that any test submitted that day would be positive, but
that she was extremely committed to getting her children.3
The court expressed that its understanding of medical marijuana, obtained from
seminars, was that no doctor would recommend that a patient smoke marijuana, and that
the “healing component” does not contain THC (Tetrahydrocannabinol), although it did
not provide prehearing notice to the parties to address this issue, and did not provide any
testimony on this issue. Instead, the court stated that the appropriate way to use it is with
a nebulizer for pain management. The court suggested that if Mother worked with a
“legitimate doctor” who actually prescribes the manner of usage, as well as the doses and
intervals for administration, it might consider it. The court further stated, “It can be
acceptable if I can tell that she is not under the influence. Or if that can be told, but it has
to be along the legitimate lines and not paying for a medical opinion like we see so
often.”
Minors’ counsel expressed concern that this was Mother’s third case where there
had been substantiated substance abuse allegations, and use of substances had impaired
her ability to parent properly.4 Minors’ counsel indicated that in the past, Mother had
3 At the jurisdiction hearing, Mother’s counsel had informed the court that Mother
was tapering down her marijuana use, but that marijuana stays in the system for 30 days.
At that time, Mother’s counsel indicated the worker was aware of it and said it was okay
provided Mother showed the decreasing levels of marijuana. However, the court did not
order quantitative testing, which would have shown whether the levels of marijuana were
decreasing.
4 In the present case, Mother’s use of marijuana was dismissed from the petition,
so this statement is incorrect. Regarding prior welfare history, only one prior dependency
12
demonstrated “erratic” behavior at visits and that she had tested positive for alcohol in
addition to marijuana in the current case, which raised the concern that Mother had failed
to truly address the substance abuse issue. County counsel agreed with minors’ counsel,
noting that the court officer (who did not testify at the hearing) informed county counsel
that the laboratory specifically tests for THC, which is the substance for which Mother
tested positive. The matter was put over until April, with standing orders to continue
testing. There was no order for outpatient drug treatment services.
On April 11, 2025, the social worker submitted another six-month review status
report pursuant to section 366.21, subdivision (e). The social worker now recommended
that Mother’s services be terminated. This report indicated that Mother’s case plan
consisted of general counseling, parenting education, drug testing, and domestic violence,
and for the first time states that Mother “was referred to anger management, and
substance abuse treatment,” although there is no information about when these referrals
were made. The report acknowledges Mother’s completion of counseling, parent
education, and domestic violence, and that she visited appropriately. However, she tested
positive for marijuana on January 8, 2025, and March 3, 2025, with three no shows for
testing in between those test dates. Mother’s housing situation was still not settled.
involved an allegation that Mother tested positive for marijuana at the time of birth of
M.B., who was born at 22 weeks of gestation, and was medically fragile. Services in that
case were terminated at the six-month stage for reasons not included in the record. In any
event, while there have been three dependencies, it appears that Mother’s marijuana use
has been the basis for juvenile court jurisdiction only once.
13
At the continued review hearing date on April 22, 2025, Mother’s counsel again
requested that the laboratory use quantitative testing to show the decreasing amounts of
marijuana.5 County counsel objected because of the price involved. The court indicated
that if Mother had actually discontinued her use of marijuana, and to save money,
Mother should continue to test, until then “one day [Mother] will test negative” if it were
true. The court declined to order quantitative testing but gave the social worker authority
to do so if appropriate. The court ordered Mother to test that day and continued the
hearing to June 4, 2025.
On June 3, 2025, the social worker submitted another Form 6.7, additional
information to the court. This report indicated Mother still did not have stable housing,
and indicated that, in addition to the positive tests previously reported, Mother had tested
positive for marijuana on April 7, 2025, but that she had tested negative on April 22 and
25, 2025, and May 6, 2025, although she had missed a test appointment on May 15, 2025,
due being at the hospital.
On June 4, 2025, Mother’s counsel argued that services should not be terminated
because she had completed the court ordered case plan and demonstrated insight.
Counsel for Mother also informed the court that the missed test in May was due to
5 A qualitative drug assay is focused on identifying whether a particular analyte,
constituent, or condition is present or absent; a quantitative drug assay is focused on
whether the test(s) gave results that expressed the specific numerical amount of an
analyte in a specimen. (Definative [sic] vs Presumptive: The “New”
Qualitative/Quantitative Designation for Drug Identification and Testing, American
Medical Association, CPT Assistant, Vol. 25, Issue 4, April 2015; Definative vs.
Presumptive_The_New_Qualitative_Quantitative Designation for Drug Identification and
Testing (1).pdf as of February 25, 2026.)
14
Mother’s illness on the date of the test, that she had been ill for a few weeks before going
to a hospital on May 19, 2025. Minor’s counsel argued that the medical report submitted
at the hearing indicated Mother was treated for a “human bite” at that visit. No further
inquiry was made into Mother’s health, although the document in question revealed
Mother was also treated for nausea and vomiting. Counsel also informed the court that
Mother had found stable housing and was currently employed. Mother’s counsel
requested an additional six-months of services.
Minor’s counsel opposed Mother’s request, because, apparently according to a
Google search, the medication prescribed to Mother on May 19th (2025) was to prevent
infection.6 Minor’s counsel concluded the reference to human bite meant that Mother
was still engaging in domestic violence. County counsel agreed, noting that the 12-
month deadline would occur the following week, so it would be impossible to find that
return would be likely by the time of the section 366.21, subdivision (f), date.
After argument had been presented, the court agreed with the observations of
minors’ counsel and county counsel, finding the medical document to be suspicious,
although it did not question Mother about the discrepant dates or the subject of the
hospital visit, which seems to corroborate her statement she had been ill. The court found
the children are a part of a sibling group who were removed at the same time, and that
because L.B. was under the age of three at the time of removal, there was clear and
convincing evidence that Mother failed to participate regularly and make substantive
6 The record to which Minor’s counsel referred also showed she was prescribed a
pain killer and medication to treat nausea and vomiting.
15
progress in the court ordered plan, that reasonable services had been provided and there
was no substantial likelihood of return. The minute order reflects the court found by a
preponderance of evidence that that return of the children would be detrimental, although
the reporter’s transcript does not include this finding. Mother’s reunification services
were terminated, and the court ordered the children’s placement in foster care, finding
that a permanent plan of legal guardianship was appropriate.
Mother timely appealed.
DISCUSSION
Mother argues that the court erred in terminating services at the six-month status
review hearing, focusing her attention on substantial evidence to support the juvenile
court’s finding of detriment to the child as a basis for ordering nonreturn of the children
to their Mother, and for the finding of unlikelihood the children would be returned within
six months. Before addressing the specific challenges to the findings, we provide the
statutory context for review of rulings made.
“Whenever a minor is removed from parental custody, the juvenile court must, in
the absence of certain specified exceptions, [fn. omitted] order the social worker to
provide services to the parent for the purpose of facilitating reunification of the family.
(§ 361.5. subd.(a).) ‘The importance of reunification services in the dependency system
cannot be gainsaid. The law favors reunification whenever possible.’ [Citation.] To
achieve this purpose, parents are generally entitled to 12 months of reunification services.
However, under section 361.5, subdivision (a)(2), ‘court-ordered services shall not
exceed a period of six months’ if the minor was under the age of three when removed
16
from the physical custody of his or her parent. [Citation.] The shortened reunification
period was meant ‘to give juvenile courts greater flexibility in meeting the needs of
young children, ‘‘in cases with a poor prognosis for family reunification.’’ ’ ” (In re Jesse
W. (2007) 157 Cal.App.4th 49, 59, citing In re Aryanna C. (2005) 132 Cal.App.4th 1234,
1242; Daria D. v. Superior Court (1998) 61 Cal.App.4th 606, 611 (Daria D.).)
Dependency cases are reviewed every six months. (§366, subd. (a)(1).) Because
we address a juvenile court’s order from a six-month status review hearing, we begin
with the text of section 366.21, subdivision (e): “(1) At the review hearing held 6 months
after the initial dispositional hearing, but no later than 12 months after the date the child
entered foster care as determined in Section 361.49, whichever occurs earlier, after
considering the admissible and relevant evidence, the court shall order the return of the
child to the physical custody of their 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. The social worker shall have the burden of
establishing that detriment. At the hearing, the court shall consider the criminal history,
obtained pursuant to paragraph (1) of subdivision (f) of Section 16504.5, of the parent or
legal guardian subsequent to the child’s removal to the extent that the criminal record is
substantially related to the welfare of the child or the parent’s or guardian’s ability to
exercise custody and control regarding their child, provided the parent or legal guardian
agreed to submit fingerprint images to obtain criminal history information as part of the
case plan. The court shall also consider whether the child can be returned to the custody
17
of their parent who is enrolled in a certified substance abuse treatment facility that allows
a dependent child to reside with their parent. The fact that the parent is enrolled in a
certified substance abuse treatment facility shall not be, for that reason alone, prima facie
evidence of 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; and shall consider the efforts or
progress, or both, demonstrated by the parent or legal guardian and the extent to which
they availed themselves of services provided, taking into account the particular barriers to
a minor parent or a nonminor dependent parent, or an incarcerated, institutionalized,
detained, or deported parent’s or legal guardian’s access to those court-mandated services
and ability to maintain contact with their child.” (§ 366.21, subd. (e)(1).)
Subdivision (e)(3), of section 366.21, relates to review hearings in dependencies
where a child is under the age of three at the time of removal. It provides: “If the child
was under three years of age on the date of the initial removal, or is a member of a sibling
group described in subparagraph (C) of paragraph (1) of subdivision (a) of Section 361.5,
and the court finds by clear and convincing evidence that the parent failed to participate
regularly and make substantive progress in a court-ordered treatment plan, the court may
schedule a hearing pursuant to Section 366.26 within 120 days. If, however, the court
finds there is a substantial probability that the child, who was under three years of age on
the date of initial removal or is a member of a sibling group described in subparagraph
(C) of paragraph (1) of subdivision (a) of Section 361.5, may be returned to their parent
or legal guardian within 6 months or that reasonable services have not been provided, or,
18
in the case of an Indian child, active efforts as defined in subdivision (f) of Section 224.1
have not been made, the court shall continue the case to the 12-month permanency
hearing.”
There is a statutory presumption at the six-month hearing that the child will be
returned to parental custody unless the court finds by a preponderance of the evidence
that return “would create a substantial risk of detriment to the safety, protection, or
physical or emotional well-being of the minor.” (§ 366.21, subd. (e)(1).) A section
366.26 selection and implementation hearing may not be scheduled at the six-month
stage unless the juvenile court finds by clear and convincing evidence the parents failed
to regularly participate in reunification services. (Daria D., supra, 61 Cal.App.4th at
p. 613.)
The shortened service period for children under three represents a legislative
determination that in certain situations, efforts to continue reunification services beyond
the statutorily-mandated six months do not serve and protect a minor's interest. (See In re
Joshua M. (1998) 66 Cal.App.4th 458, 470.) Notwithstanding this policy, a juvenile
court “may extend the reunification period for a minor under the age of three up to 18
months if there is a substantial probability the minor will be returned to the parent’s
physical custody within the extended time period or reasonable services have not been
provided to the parent.” (§ 361.5, subd. (a); In re Jesse W. (2007) 157 Cal.App.4th 49,
59.)
Thus, even where the parents have not regularly participated in reunification
services, the court must continue the case if it finds “ ‘a substantial probability that the
19
minor … may be returned to his or her parent … within six months or that reasonable
services have not been provided[.]’ (§ 366.21, subd. (e)(3).) Under all the
circumstances, … services may be terminated at the six-month stage only when ‘parental
unfitness is so well established that there is no longer ‘‘reason to believe that positive,
nurturing parent-child relationships exist’’ [citation], and the parens patriae interest of the
state favoring preservation rather than severance of natural familial bonds has been
extinguished.’ ” (Daria D., supra, 61 Cal.App.4th at p. 613, citing Cynthia D. v. Superior
Court (1993) 5 Cal. 4th 242, 256, in turn citing Santosky v. Kramer (1982) 455 U.S. 745,
766.)
There is no corollary to the presumption that a parent’s failure to regularly
participate in the court ordered reunification service plan for a parent who has regularly
participated in and completed court-ordered services; “[a]lthough section 361.21,
subdivision (e), does not authorize an order setting a hearing under section 366.26 in
these circumstances, ‘ “[o]ne section of the dependency law may not be considered in a
vacuum. It must be construed with reference to the whole system of law of which it is a
part so that all may be harmonized and have effect.” ’ ” (Armando D. v. Superior Court
(1999) 71 Cal.App.4th 1011, 1022–1023, quoting Constance K. v. Superior Court (1998)
61 Cal.App.4th 689, 703–704.)
1. Whether There Is Substantial Evidence to Support the Finding of Detriment at the
Status Review Hearing
Mother argues there is insufficient evidence to support the detriment finding,
implicit in the juvenile court’s findings at the review hearing. We review judicial
20
findings for substantial evidence. (Georgeanne G. v. Superior Court (2020) 53
Cal.App.5th 856, 864.) Under this standard we inquire whether “the evidence,
contradicted or uncontradicted, supports the court’s determination. 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. (Id. at
p. 865; see In re I.J. (2013) 56 Cal.4th 766, 773.)
It is settled that “[a]t 6-, 12-, and 18-month review hearings the juvenile court must
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.” (David B. v. Superior Court (2004) 123
Cal.App.4th 768, 789 (David B.), quoting In re Marilyn H. (1993) 5 Cal.4th 295, 308.)
“ ‘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.’ ” (L.C. v. Superior Court (2024) 98
Cal.App.5th 1021, 1033, quoting David B., supra, at p. 789; see M.G. v. Superior Court
(2020) 46 Cal.App.5th 646, 660.) “The Department bears the burden of proving
detriment.” (L.C., supra, at p. 1033.)
If the Department opposes return of the minor to the parent, it has the burden of
establishing detriment. (§ 366.21, subd. (e); In re E.D. (2013) 217 Cal.App.4th 960, 965,
citing In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1400 (Yvonne W.).) The standard
for showing detriment is “ ‘a fairly high one. It cannot mean merely that the parent in
21
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.’ ” (In re E.D., supra, at p. 965, citing David B., supra, 123 Cal.App.4th at
p. 789; Yvonne W., supra, at p. 1400.) Instead, “[i]n applying this standard, the juvenile
court should consider only whether the parent shows a ‘grasp of the important parenting
concepts—things such as a child’s need for security, adequate nutrition and shelter,
freedom from violence, proper sanitation, healthcare, and education.’ ” (In re E.D., at
p. 965, citing David B., at p. 790.)
“ ‘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
the child's out-of-home placement.’ ” (In re E.D., supra, 217 Cal.App.4th at p. 966,
citing Yvonne W., supra, 165 Cal.App.4th at p. 1400.)
“In deciding whether it would be detrimental to return a child, the easy cases are
ones where there is a clear failure by the parent to comply with material aspects of the
service plan … for example, a mother continued to test positive for illegal drug use,
continued to move from place to place, failed to ‘regularly’ attend therapy, and failed to
complete her parenting class. This was obviously enough to support a finding of
detriment. [¶] The harder cases are … where the parent has complied with the service
plan, but for some reason has not convinced a psychologist or social worker that it would
be safe to return the child to the parent. The problem is not, as it were, quantitative (that
is, showing up for counseling or therapy or parenting classes, or what have you) but
22
qualitative (that is, whether the counseling, therapy or parenting classes are doing any
good). These are sensitive cases, fraught with emotional overtones, because they
invariably deal with an evaluation of the personality, character and attitudes of the
parent.” (Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1748, fn. omitted.)
Here, the court’s detriment finding referred to Mother’s failure to regularly
participate in court ordered reunification services. However, the record does not support
this finding, and, in light of the therapist’s progress report, we are reluctant to rely on this
finding as a basis for a prima facie showing of detriment. For one thing, each of the
reports submitted by the social worker in connection with the status review hearing
indicated Mother did regularly participate in the reunification services that were actually
offered, and that she benefitted from them. In the original status review report, the
Department recommended return of the children to Mother’s custody as soon as she
found appropriate housing, because Mother had completed all the court ordered services
and had shown “significant progress.”
Nor did the arguments of counsel for the Department and the minors, as well as
the comments of the court, give rise to substantial evidence that return of the children
would be detrimental, given the less than competent nature of the “evidence” proffered at
the hearing. The matters relied on by the juvenile court amounted to conjecture and
speculation, which do not constitute substantial evidence. “[S]ubstantial evidence
requires more than speculation or conjecture. Inferences must rest on evidence.” (In re
B.D. (2024) 103 Cal.App.5th 315, 329.)
23
Mother’s compliance with services and her progress were reflected in the
summary of Mother’s visitation with the children where there is no mention of Mother
acting erratically at visits during the postdisposition reunification period, and, more
importantly, there is nothing to indicate Mother ever attended visits while under the
influence of either alcohol or controlled substances. Instead, the report indicated Mother
had successfully completed all court-ordered services, participated fully, benefitted from
the support provided, acknowledged the role of Children and Family Services in the case,
took full responsibility for her actions and the circumstances that led to the situation, and
had avoided contact with the children’s Father.
Moreover, the “Therapeutic Treatment Services Routine Individual Counseling
Progress Report”, prepared by Mother’s therapist and attached to the social worker’s
report, is pertinent to our review because at the disposition hearing, the juvenile court had
indicated that substance abuse issues might be addressed in therapy, and that report
contradicts the finding of detriment.
Respecting Mother progress, the therapist stated: “[Mother] was also able to
comprehend the significant effects of how anger substance use and domestic violence
could affect their children. In being reflective, she stated that she ‘chose a bad man.’ She
takes responsibility for that. She recognized that their children were traumatised [sic] by
what they saw and will forever impact how they look at their parents. She learned that a
child’s brain could be altered to deal with everyday situations in survival modes such as
fight/flight/flee. It can physically and mentally traumatizes [sic] the child into depression
sadness or PTSD and overwhelms the children [sic] brain. Exposure to it can have them
24
feel angry, resentful, sadness, rage and fear in their own lives. It changes their
relationships and does not allow for open communication or healthy expressive emotions.
The detrimental effects can last for a lifetime. She knows that being around it has harmed
the children and often they act out on their anger and rage. It has impacted their
emotional patterns and behaviors. They are reactive now to adults. [¶] [Mother]
acknowledged that she smokes marijuana to manage extreme pain and her children are
aware of it. She stated that she has never used any other street drugs. She understood
how parental use of alcohol/ substances could affect the children as well. It can create an
unhealthy environment for the children to think they can use it to relax or deal with their
issues; it can help them sleep when they have difficulty sleeping at night. and discounts
the need for communication and problem solving.” At the conclusion of the
counselor/therapist’s progress report, the therapist stated, “For these reasons, I do not
believe that [Mother] will be returning to the CFS system for the referring problems in
the future. She has successfully met her treatment goals.”
We accept that the decision whether to return a dependent child to parental custody
is not necessarily governed solely by whether the parent has corrected the problem that
required court intervention. (Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322,
1344 (Jennifer A.).) In Jennifer A., the reviewing court addressed a similar issue, where
the mother had made “ ‘substantive progress’ ” in the court-ordered treatment programs
addressing the problems identified as causing the detention, had generally complied with
the reunification plan and substantive progress had been noted. (Id. at pp. 1344–1345,
citing In re Dustin R. (1997) 54 Cal.App.4th 1131,1140.)
25
In that case, the mother had missed drug tests or provided diluted urine samples
and positive drug tests between the 12-month review report/hearing and the 18-month
review report/hearing, but she had regularly demonstrated improved parenting skills.
(Jennifer A., supra, 117 Cal.App.4th at p. 1346.) At the time of the decision in that case,
possession of marijuana was illegal. (Ibid.) Further, no one in that case offered
testimony linking mother’s marijuana and alcohol use to her parenting judgment or skills,
nor did the social worker “modify [the mother’s] visitation schedule after the positive test
in December 2003, because he ‘didn’t see any danger to the children based upon that one
positive test.’ ” (Ibid.) In fact, the court noted the record did not support a finding that
mother’s marijuana use created a substantial risk of detriment to the physical or
emotional well-being of the children in light of the factors in this case militating in favor
of their return. (Ibid.)
Therefore, the reviewing court in Jennifer A. found there was no evidence any
detriment in returning the children to mother’s custody was caused by mother's actions
leading to the detention, though it did not “foreclose the possibility a substance abuse
problem detected after initial detention might be a reason for denying return of a
dependent child to the parents’ custody.” (Jennifer A., supra, 117 Cal.App.4th at
p. 1345.) This was especially true where “no one offered testimony linking Mother’s
marijuana and alcohol use to her parenting judgment or skills.” (Ibid.)
Similarly, while Mother acknowledged early and often that she used marijuana for
anxiety and pain management in the present case, there was no indication whatsoever that
her marijuana use exposed the children to substantial risk of physical or emotional harm.
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The California Supreme Court has cautioned that a parent’s substance abuse must render
a parent or guardian unable to provide regular care for a child and either cause the child
to suffer serious physical harm or illness or place the child at substantial risk of suffering
such harm or illness. (In re N.R. (2023) 15 Cal.5th 520, 531.) Nothing in the Google
research by minor’s counsel, or the hearsay about THC offered by the Department’s
counsel, or the juvenile court’s seminar on acceptable means of ingesting marijuana for
medical purposes established that the children were at substantial risk of harm or illness.
We are not ignoring Mother’s history of prior child welfare involvement, but the
limited information before use about that history does not compel a conclusion that return
of the children to her care would be detrimental in this case, which was initiated several
years after her previous dependency case. Aside from drug tests showing the presence of
marijuana, there was no evidence linking mother’s legal marijuana use to her parenting
judgment or skills. Marijuana use is no longer illegal in California, and does not support
detriment findings unless the parent’s use of marijuana interferes with parental
obligations. (See In re Alexis E. (2009) 171 Cal.App.4th 438, 452 [“even legal use of
marijuana can be abuse if it presents a risk of harm to minors”].)
The juvenile court viewed Mother’s evidence of the document showing Mother
had been treated for an illness to explain why she had missed a test, as suspicious,
describing the evidence as “untimely documents on the fly” that “can’t be vetted.” Yet,
the document in question did corroborate Mother’s statement she had gone to the hospital
for treatment of an illness, given that other medications were prescribed at that visit, to
treat nausea. Further, the evidence on which the court relied to find detriment was no
27
more substantial than Mother’s hospital record, where the evidence on which the court
relied comprised third-level hearsay about the THC measured in Mother’s drug tests,
along with the court’s reliance on information obtained at an unspecified seminar, none of
which were introduced by means of testimony by competent witnesses nor with an
opportunity for Mother to cross-examine or introduce evidence in opposition. We
recognize that juvenile court proceedings are less formal than those in adult court, but
even in juvenile court, competent evidence is required to support a court’s findings and
parents are entitled to an opportunity to defend against allegations against them as a
matter of due process.
The juvenile court’s detriment finding rested on its determination that Mother had
failed to regularly participate and demonstrate progress in court ordered services, but that
finding is unsupported by the record where both status review reports indicate the
contrary was true. Thus, the court’s finding of detriment could only be justified if
Mother’s marijuana use exposed the children to a risk of physical harm or illness if
returned to Mother’s custody. Given the opinion of Mother’s therapist that Mother’s
treatment goals had been met, along with the lack of evidence that Mother was under the
influence of marijuana at visits, we cannot agree that Mother’s marijuana use, absent
other evidence of detriment, warranted a finding of detriment.
The finding of detriment is not supported by substantial evidence.
2. Whether Reasonable Services Were Provided
At the contested status review hearing, the court made a finding that reasonable
services had been provided. Noting that neither party had addressed this finding in the
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original briefing, we requested supplemental briefing on the issue of whether the record
supports such a finding in the absence of evidence that Mother was provided with
outpatient substance abuse treatment services (aside from testing) as ordered at the
disposition hearing.
The parties have responded to our briefing request. Mother argues the finding is
not supported by substantial evidence due to the absence of any offer of a substance
abuse treatment program. The Department disagrees. The Department acknowledges
that Mother was not referred to an outpatient treatment program, and that the juvenile
court had ordered such a program at the disposition hearing. However, it notes that
Mother engaged in individual therapy wherein the concerns of her substance abuse
history were addressed and there was no indication that individual counseling could
not appropriately address any concerns of substance abuse.
Section 361.5, subdivision (a) provides, in part, that “whenever a child is removed
from a parent’s or guardian’s custody, the juvenile court shall order the social worker to
provide child welfare services to the child and the child’s mother and statutorily
presumed father or guardians.” Section 361.5 has been construed to require “ ‘[a] good
faith effort’ to provide reasonable services responding to the unique needs of each
family.” (In re Monica C. (1994) 31 Cal.App.4th 296, 306, quoting In re Kristin W.
(1990) 222 Cal.App.3d 234, 254.)
Moreover section 366.21, subdivision (e)(8), requires the court to “determine by
clear and convincing evidence whether reasonable services that were designed to aid the
parent or legal guardian in overcoming the problems that led to the initial removal and
29
the continued custody of the child have been provided or offered to the parent or legal
guardian.” “Under this burden of proof, ‘evidence must be so clear as to leave no
substantial doubt. It must be sufficiently strong to command the unhesitating assent of
every reasonable mind.’ ” (In re Monica C., supra, 31 Cal.App.4th at p. 306.)
“ ‘ “When the sufficiency of the evidence to support a finding or order is challenged
on appeal, even where the standard of proof in the trial court is clear and convincing
evidence, the reviewing court must determine if there is any substantial evidence—that is,
evidence which is reasonable, credible and of solid value—to support the conclusion of
the trier of fact.” ’ [Citations.] ‘When applying the substantial evidence test, however,
we bear in mind the heightened burden of proof. [Citation.] ‘‘Under this burden of
proof, ‘evidence must be so clear as to leave no substantial doubt. It must be sufficiently
strong to command the unhesitating assent of every reasonable mind.’ ” ’ ”(In re N.J.
(2024) 104 Cal.App.5th 96, 120.)
The Department’s position is that an outpatient program was unnecessary because
the court had suggested that the issue of Mother’s substance abuse could be addressed in
counseling and that the Department did provide testing services , discharging its
obligation to offer services for that issue.
Given the therapist’s conclusion that the treatment goals of therapy had been met,
if such services were indeed reasonable to address the problems of the family, it is, as the
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King of Siam7 would say, “a puzzlement” how the Department could argue that return
should be denied and services terminated. The comments of counsel for both the
Department and the minors, as well as by the juvenile court, plainly reflect the belief that
Mother’s marijuana use interferes with her ability to parent and exposes the children to a
risk of detriment.
Moreover, the court’s finding that Mother had failed to regularly participate in and
benefit from services suggests that the court expected Mother to have been provided with
outpatient substance abuse treatment services, as it had ordered at the disposition hearing,
but that she had not.
The court’s finding that reasonable services were provided did not consider that it
had originally ordered outpatient drug treatment for Mother, and that no drug treatment
referrals were ever made. Mother was clearly in a Catch-22 situation.8 If the court
intended to rely on Mother’s marijuana use to terminate all reunification services to
Mother, it was obligated to ensure that the problem had been properly addressed in the
service plan. Assuming the court was familiar with the social worker’s reports and the
attached progress summaries attached thereto, it should have been obvious that Mother’s
marijuana use was “addressed” in counseling only, and that Mother had fully participated
7 Referring to the song, “A Puzzlement,” The King and I, Act 1, (Rodgers/Oscar
Hammerstein II) © 1951, Copyright Renewed, Williamson Music Company (ASCAP)
c/o Concord Music Publishing.
8 A “catch-22” is a paradoxical situation from which an individual cannot escape
because of contradictory rules or limitations, and is derived from the novel, Catch-22
(1961), by Joseph Heller, New York: Simon & Schuster.
31
in the services. If the Department did not consider addressing marijuana use in
counseling and therapy to be adequate, it had already been directed to provide outpatient
treatment services to Mother. Yet it did not.
The court’s findings are not supported by clear and convincing evidence that
reasonable services had been provided; otherwise, it would have accepted the therapist’s
conclusion that treatment goals had been met. In this regard, we observe that the juvenile
court was dubious about the medical recommendation for Mother’s use of marijuana was
legitimate, but there was no credible evidence to contradict it or the inferences that
flowed therefrom. County counsel proffered hearsay evidence from an unnamed,
unsworn court officer relaying hearsay information from an unidentified employee at the
laboratory to argue that the marijuana detected in Mother’s drug test was not the
therapeutic form that any legitimate doctor would recommend. Additionally, without
witness testimony, the juvenile court itself cited anecdotal information from a seminar
somewhere that no legitimate doctor would recommend smoking marijuana, as opposed
to some other delivery method.
Mother was not referred to any program that would elucidate the court’s concerns
about Mother’s marijuana use. Mother was also not given notice of the need to counter
the items of “evidence” relied upon by the court, which proved to be dispositive. Nor
was she ever told that the medical recommendation provided to her for the use of
marijuana was not legitimate, in a day and age where marijuana use is legal.
To the contrary, Mother participated in the two review hearings under the
impression the court would follow the status review reports indicating she had fully
32
complied with her court ordered services and had benefited from them, although, until
April 2025, she had tested positive for marijuana use. At the next hearing, she did
produce three clean tests, but there were missed tests preceding the three negative tests.9
Nevertheless, the court found she had not regularly participated in the court ordered
services and that return of the children to her custody was detrimental.
The court’s finding that reasonable services were provided must refer only to the
standing order for drug testing because that was the only substance abuse-related order, in
light of the record showing she did address substance abuse in therapy sessions. We are
unaware of how drug testing, alone, is designed to aid a parent in resolving the problems
that led to loss of custody of her children. Further, evidence of missed tests or dirty tests
does not support a presumption by the court that Mother was abusing marijuana, as
opposed to using it for chronic pain.
9 Although the court had warned Mother that a missed test would be assumed to
be a positive test, this would have been an impossibility for Mother, where the three
negative tests followed the missed tests. It is well accepted that it takes a substantial
amount of time for marijuana to clear the system. “For marijuana, the urine elimination
profile used to establish the detection window is more complex. It is well documented
and understood that cannabinoids are lipid-soluble compounds that preferentially bind to
fat-containing structures within the human body (Baselt, 2004). This and other chemical
characteristics can prolong the elimination half-life of cannabinoids and extend the
detection window beyond that of other abused substances. Chronic marijuana use, which
expands body stores of drug metabolites faster than they can be eliminated, further
increases cannabinoid detection time in urine.” (Carey, The Marijuana Detection
Window: Determining The Length Of Time Cannabinoids Will Remain Detectable In
Urine Following Smoking: A Critical Review of Relevant Research and Cannabinoid
Detection Guidance for Drug Courts, Drug Court Review (2020) Vol. V, 1, p. 33.)
“Regardless of the origin of the 30-day marijuana detection window and its influence on
the duration of the detoxification period, 30 days is certainly an equitable time period for
client drug elimination purposes.” (Id. at p. 46.) [https://ntcrc.org/wp-
content/uploads/2020/06/DCRVolume5.1-2_The_Marijuana_Detection_Window.pdf.].)
33
The court expressed concern at the jurisdictional and dispositional hearing that
Mother’s marijuana use was a problem that needed to be reckoned with if Mother were to
succeed in reunifying with her children. However, despite the initial order to provide
outpatient drug treatment services for Mother, the only “service” offered was drug
testing, and therapy to address domestic violence, and anger management, in addition to
Mother’s marijuana use. We conclude that drug testing and counseling, without more, is
inadequate to support a reasonable services finding, in light of the court’s finding of
detriment based on failure to participate in court ordered services, which can only refer to
lack of a completed drug treatment program to address the marijuana use.
The record contains no referrals for outpatient substance abuse treatment, which is
the only service in which she did not participate. To the extent that the court apparently
found Mother’s marijuana use was the factor creating a substantial risk of detriment, the
lack of services to address that problem leads to the inevitable conclusion that the
Department failed to meet its burden of proof, by clear and convincing evidence, that it
provided reasonable services to Mother.
3. Whether the Juvenile Court Abused Its Discretion in Terminating Services Upon Its
Finding That Return of the Children Within Six Months Was Unlikely
Mother argues there is insufficient evidence to support the finding that there was
no substantial likelihood that the children would be returned to her care and custody
within six months. We do not need to address the merits of this issue because our
resolution of the reasonable services issue requires a remand to the juvenile court for
additional services.
34
DISPOSITION
The orders terminating services and establishing a permanent plan are reversed
and the matter is remanded with directions to order six months of additional reunification
services.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
FIELDS
J.
35