Filed 8/25/26 In re N.S. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re N.S., a Person Coming Under the
Juvenile Court Law.
SAN DIEGO COUNTY HEALTH AND D087765
HUMAN SERVICES AGENCY,
(Super. Ct. No. J521692)
Plaintiff and Respondent,
v.
B.S.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Lilys D. McCoy, Judge. Affirmed.
Leslie A. Barry, under appointment by the Court of Appeal, for
Appellant.
Damon M. Brown, County Counsel, Lisa M. Maldonado, Chief Deputy
County Counsel, Katie Abajian, Deputy County Counsel, for Plaintiff and
Respondent.
At her birth in September 2025, N.S. (Minor) tested positive for
methamphetamine and cannabis. She was admitted to the hospital’s
neonatal intensive care unit (NICU) for withdrawal symptoms including
“jitteriness, shakiness, agitated behavior and poor feeding,” eventually
requiring a feeding tube. B.S. (Mother) admitted to using
methamphetamine, marijuana, and alcohol for most of her adult life,
including during the first four months of Minor’s pregnancy, but asserted
that she tested positive for methamphetamine due to the “second[-]hand
meth smoke” of others. In late January 2026, Mother tested positive for
fentanyl but claimed it was a “false positive.”
At the contested jurisdiction/disposition hearing, the juvenile court
found by clear and convincing evidence that (1) it was unsafe to return Minor
to Mother’s care; (2) there were no “reasonable means” to protect Minor
without removing her from Mother’s physical custody; and (3) the Agency
made “reasonable efforts” to prevent Minor’s removal. (Welf. & Inst. Code,1
§ 361, subds. (c)(1), (e).)
On appeal, Mother challenges only the juvenile court’s “reasonable
efforts” finding. She claims the evidence instead showed the Agency
(1) “basically did nothing to assist [her] and to prevent removal of [Minor]
from [her] custody”; and (2) actually impeded Minor’s return by its alleged
unlawful disclosure of her (false) positive test to her probation officer, which,
she claims, led to her incarceration for a probation violation “just in time for
the scheduled disposition hearing.” She thus seeks reversal of the court’s
March 4, 2026 disposition order and remand for a new hearing.
1 All undesignated statutory references are to the Welfare and
Institutions Code.
2
We conclude from the record as a whole that clear and convincing
evidence supports the finding the Agency made “reasonable efforts” to
prevent Minor’s removal. (See § 361, subd. (e).) We also conclude it is not
reasonably probable that the juvenile court would have returned Minor to
Mother’s care under the facts of this case, even if the Agency had not made
that disclosure and/or Mother had not been incarcerated. We thus affirm the
court’s March 4 order.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Agency Learns of a Problem
The Agency received a referral from the hospital on September 16,
2025, after Mother tested positive for amphetamine and cannabis at Minor’s
birth. That same day, the Agency met with Mother, the hospital’s social
worker and a NICU nurse. Before the Agency’s involvement, Mother declined
to meet with the hospital’s substance abuse specialist.
Mother was then on probation in San Diego County for vehicle theft
and possession of a controlled substance, due to an incident involving the
alleged father V.A.2 in January 2025. As part of her criminal case, Mother
participated in an outpatient substance use program at McAlister a few
months before Minor was born. Records from McAlister showed Mother
(1) admitted using methamphetamine on July 4, 2025, and four times in the
previous 30 days, as well as smoking marijuana daily; and (2) tested positive
for methamphetamine, THC, and cotinine six days later.
Mother told the Agency she wanted to “ ‘get on track’ ” and not be like
her mother (i.e., maternal grandmother), who, according to Mother, used
2 V.A. is not a party to this appeal.
3
methamphetamine and fentanyl while she was growing up and was
continuing to use them. Mother admitted to using methamphetamine and
alcohol on a daily basis since she was 18 years old, or for about five years,
and had “never planned to stop using meth.” She stated she had received no
prenatal care.
Mother informed the Agency she did not believe she needed an
inpatient treatment program. Instead, she wanted to return to the shelter
where she had spent the last two weeks with maternal great aunt J.G. She
planned to participate in the “outpatient services” it offered and/or consult a
“binder of services” she had received from another program. The Agency
encouraged Mother to enter an inpatient program, giving her the contact
information for Kiva, as well as a referral to a “Substance Abuse Specialist”
for an assessment. Mother then agreed “to go to inpatient treatment, but
‘only if she [could] keep the baby.’ ”
The Agency also spoke with maternal great aunt J.G. Mother had
discussed with J.G. her positive drug test and how the Agency had told her to
call Kiva and “ ‘find out if a bed [was] available.’ ” J.G. admitted to once
being an “ ‘addict [her]self’ ” and had helped Mother get into the shelter. J.G.
wanted placement of Minor, as the shelter had “resources” and “case
managers” that also could assist Mother and the child.
Mother also wanted Minor placed with J.G., as she was her only family
support. The Agency informed Mother that was unlikely under the
circumstances. She next suggested placement with maternal great aunt
G.G., who lived in Tulare County. The Agency commenced an emergency
placement assessment of G.G. and “encouraged Mother to seek substance use
services” as soon as possible.
4
The hospital subsequently confirmed that Minor had tested positive for
amphetamine, methamphetamine, and cannabis, and Mother for cannabis
and methamphetamine. The Agency took Minor into protective custody when
the hospital discharged her on September 22, 2025, the same day the Agency
filed a petition on her behalf under section 300, subdivision (b).
B. The Petition and Detention
The petition alleged that Minor had suffered or was at risk of suffering
serious harm “(A) as a result of the failure or inability of . . . her parent . . . to
supervise or protect the child adequately [and/or] (D) by the inability of the
parent . . . to provide regular care for the child due to the parent’s . . .
substance abuse.” Count 1 explained that Minor “tested positive for
dangerous drugs . . . and suffered withdrawal symptoms of jitteriness,
shakiness, agitated behavior, and poor feeding”; that Mother also “tested
positive for methamphetamine and amphetamine, and admit[ed] drug usage
during pregnancy”; and that she had a “long history of substance abuse,
including criminal arrests for controlled substances, which remains
untreated.”
The Agency’s detention report recommended that the juvenile court (1)
make a prima facie finding on the petition; (2) detain Minor in out-of-home
care, giving the Agency the discretion to place her outside of San Diego
County with an approved relative; and (3) order liberal supervised visitation
and reunification services for Mother. In making its recommendations, the
Agency noted the recent positive drug tests, Mother’s lack of “transparen[cy]”
with the Agency regarding her substance abuse and living arrangements, and
her failure to take any steps to enter a substance abuse program or other
actions to mitigate the threat of harm to Minor.
5
The juvenile court found the Agency made a prima facie showing that
Minor was a person described by section 300, subdivision (b) and ordered
services and supervised visitation for Mother.
C. The Jurisdiction/Disposition Report and Addenda
The Agency’s October 29, 2025 report recommended the juvenile court
make a true finding on the petition, declare Minor a dependent of the court,
and detain the child in out-of-home care with a relative.
The Agency placed Minor with maternal great aunt G.G. in Tulare
County on September 24, 2025. She reported that the child was doing well
overall, but was still experiencing withdrawal symptoms. The day before
placement with G.G., Mother entered a three-month inpatient treatment
program at Family Recovery Center (FRC). During a meeting with the
Agency in mid-October, she reported being unable to leave FRC except for
court appearances. The Agency subsequently learned FRC had imposed that
restriction due to Mother’s mid-program relapse with THC. Mother told the
Agency she hoped Minor would be returned to her care by the “end of the
month.”
The Agency also contacted Mother’s maternal great cousin M.R. and
learned Mother had admitted to M.R. that “she did not stop using meth while
she was pregnant.” M.R. agreed to allow her Los Angeles home to be used as
a “halfway point” between Tulare and San Diego Counties for in-person visits
between Mother and Minor.
In late October, Mother, maternal great aunts J.G. and G.G., maternal
great cousin M.R., a counselor from FRC, a representative from San Diego
County’s development screening and enhancement program (DSEP), and the
Agency participated in a child and family team meeting (CFT) to discuss the
“family needs, services, support system, placement, and upcoming court
6
recommendations.” Also in October, the Agency conducted a relative search
on Minor’s behalf, reaching out to 13 relatives of Mother and assumed father
V.A. The Agency received no response.
The Agency’s recommendations from its October 29
jurisdiction/disposition report remained unchanged in its reports of
November 25 and December 19, 2025, and February 2 and 17, 2026. During
these reporting periods, Minor continued to thrive in her placement with G.G.
In late October, an Agency social worker traveled to Tulare County and met
with G.G. and Minor. The caregiver reported Mother called “often” and was
“adamant about having the baby back in her care.”
Mother disclosed to the Agency that she had consumed a beer, in
violation of FRC’s substance use policy, after appearing in criminal court on
October 29, 2025. The Agency commended Mother “for her honesty, and
encouraged her to continue working on her sobriety and not be around others
who could trigger her or not support her journey.” She told the Agency that
she was looking forward to transitioning from FRC to a long-term sober living
program, where she could reunite with Minor.
In November, G.G. drove Minor to San Diego County for an in-person
visit with Mother. Following the visit, Mother requested that the Agency
place Minor in foster care in San Diego County “instead of [with] her relative,
as that was easier for her to have more visits with her daughter.” The
Agency noted its preference for relative placement, acknowledged the
distance made in-person visits “difficult,” and inquired whether Mother “had
spoken to her [probation officer] about being able to leave the county for
visits” in Tulare County. Mother stated “she had not brought it up again.”
The Agency reminded Mother she was in the beginning of her “recovery
journey.”
7
Mother had another in-person visit with Minor in San Diego County in
January 2026. Also in January, Mother completed the FRC program. Rather
than remain at FRC until a bed became available at Solutions for Change, a
long-term inpatient program, Mother left to stay with a “friend.” The Agency
“reminded Mother to maintain her sobriety and make good decisions.”
Mother began Solutions for Change on or about January 20, 2026. A
few days later, she received permission to temporarily leave the program and
meet with her probation officer and gather some belongings from the
maternal grandmother. The following day, Mother tested positive for
fentanyl, requiring her to leave the program.
Mother denied drug usage, telling the Agency it was a false positive
due to her medication. She planned to enter a sober living program at
McAlister and agreed to meet with the Agency a few days later. But she
canceled that meeting and stopped answering her phone. G.G. spoke to
Mother in the interim, who admitted consuming “alcohol while she was with
maternal grandmother.”
On January 29, 2026, the Agency spoke to Mother’s probation officer.
He was unaware of Mother’s positive drug test, as she had been in criminal
court earlier that day and represented she was “clean.” The next day, Mother
called the Agency and said she had “just tested for her probation officer and
that test would be clean.” The Agency encouraged her to remain in contact,
continue working on her sobriety and her case plan, and enter a sober living
program as soon as possible.
On February 5, the Agency again spoke to Mother, who reported that
McAlister had referred her to Kiva. But she “did not think KIVA was a good
fit for her.” The Agency told her to focus on making sure her future drug
tests were negative. Mother responded “she was unsure [if] her next test
8
would be negative or positive as she had relapsed after leaving Solution[s] for
Change.”
Mother was arrested on February 10, 2026 for a probation violation. At
the time of the contested hearing, she was in custody, with an anticipated
release date of April 7, 2026.
D. The Contested Hearing and the Court’s Ruling
The juvenile court admitted the Agency’s October 29, 2025
jurisdiction/disposition report as well as the addenda.3 As relevant here, an
Agency social worker testified she had spoken to Mother’s probation officer,
informing him of Mother’s positive fentanyl test. No other witnesses were
called.
After the close of evidence, the Agency and Minor’s guardian ad litem
argued the juvenile court should remove the child from Mother’s physical
custody. Mother maintained that the Agency failed to make “reasonable
efforts” to prevent or eliminate Minor’s removal by disclosing her positive test
to probation, which allegedly led to her arrest and incarceration. She claimed
she was unable to care for Minor “solely because of the Agency’s unlawful
conduct.”4
3 The juvenile court, however, did not consider the Agency’s February 27,
2026 addendum, as the evidentiary phase of the contested trial had closed
before its preparation.
4 Mother further alleged that the Agency acted unreasonably, including
by placing Minor “five hours out of county” and by violating court orders
regarding the paternity testing of assumed father V.A. Mother, however, has
not raised these issues on appeal and we do not consider them. (See Tiernan
v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4
[issues not raised on appeal are deemed forfeited]; accord, Paulus v. Bob
Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 685 [“[c]ourts will ordinarily
9
After argument, the juvenile court made a true finding on the petition
and took jurisdiction of Minor. The court deferred disposition to further
consider counsels’ arguments. At a follow-up hearing, the court determined
that clear and convincing evidence supported Minor’s removal from Mother’s
physical custody under section 361, subdivision (c)(1), and that the Agency
had made “reasonable efforts” to prevent the child’s removal under
subdivision (e) of this statute.5 It also found no evidence that Mother’s
medication caused her positive fentanyl test in January 2026, or that the
Agency was responsible for her probation revocation.
DISCUSSION
Mother’s challenge on appeal is limited to contending that the Agency
failed to make “reasonable efforts” “to prevent or to eliminate the need” for
Minor’s removal. (§ 361, subd. (e).) We disagree.
A. Guiding Principles and Standard of Review
A juvenile court has “broad discretion” to determine a child’s best
interests when crafting a disposition order. (In re Nada R. (2001)
89 Cal.App.4th 1166, 1179.) For removal, the court must find by clear and
treat the appellant’s failure to raise an issue in his or her opening brief as a
waiver of that challenge” on appeal].)
5 As a factual basis to support its ruling, the juvenile court noted
(1) Minor was born positive for methamphetamine, fentanyl, and cannabis;
(2) Mother admitted smoking methamphetamine daily for the first four
months of her pregnancy, and not receiving prenatal care; (3) she has
struggled with substance abuse for five years; (4) during her three-month
inpatient program at FRC, she had “a couple mid-program lapses with
alcohol and THC, which were seen as problematic” and which led her to be
“put on contract and other restrictions”; and (5) after completing her interim
program, she moved to a sober living facility and tested positive shortly after
her admission.
10
convincing evidence that “[t]here is or would be a substantial danger to the
physical health, safety, protection, or physical or emotional well-being of the
minor if the minor were returned home, and there are no reasonable means
by which the minor’s physical health can be protected without removing the
minor from the minor’s parent’s . . . physical custody.” (§ 361, subd. (c)(1).)
In making this determination, the court must consider whether “reasonable
efforts were made to prevent or eliminate the need for removal” and state
“the facts on which the decision to remove the minor is based.” (Id.,
subd. (e).)
“[R]easonable efforts, like reasonable services, need only be reasonable
under the circumstances, not perfect.” (In re H.E. (2008) 169 Cal.App.4th
710, 725 (H.E.).) Whether the Agency’s efforts were reasonable in this case is
an inherently factual question, reserved for the trier of fact. (See e.g., Cabral
v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 773 [noting in the context of
negligence that “whether or not the defendant acted reasonably under the
circumstances” is a “fact-specific question” (italics added)].)
We “review a dispositional order removing a child from a parent for
substantial evidence” (In re M.V. (2022) 78 Cal.App.5th 944, 960 (M.V.)),
“ ‘ “keeping in mind that the trial court was required to make its order based
on the higher standard of clear and convincing evidence” ’ ” (ibid.). “When
reviewing a finding that a fact has been proved by clear and convincing
evidence, the question . . . is whether the record as a whole contains
substantial evidence from which a reasonable fact finder could have found it
highly probable that the fact was true.” (Conservatorship of O.B. (2020)
9 Cal.5th 989, 1011–1012 (O.B.).)
11
B. Analysis
We conclude that clear and convincing evidence supports the juvenile
court’s “reasonable efforts” finding. (§ 361, subd. (e).) As we have
summarized, the evidence shows the Agency provided Mother with pre-
placement services, including counseling and case management. At the
hospital, it referred Mother to Kiva and to a substance use program for
assessment. It also obtained information about her support network, living
situation, and relatives for possible placement once Minor was discharged.
Agency personnel repeatedly met with the hospital’s social worker and
nursing staff regarding the family and its needs, and spoke with maternal
great aunt J.G.
Other pre-placement efforts it made included speaking to assumed
father V.A. about Mother, obtaining Mother’s records from McAlister, and
repeatedly “encourag[ing] [her] to seek substance use service[s]” after she
reported her intention to return to the shelter and participate in outpatient
services it offered.
Post-placement, the Agency met with Mother at FRC in Mid-October.
She then was “taking advantage of all the services offered at FRC,” including
substance education and relapse prevention, anger management, mental
health awareness, recovery maintenance, parenting, and therapy. Mother
then “denied needing anything from the Agency, as she had all the necessary
services and resources available to her at FRC.” (Italics added.) The Agency
commended Mother for “putting in the work towards her sobriety journey.”
Also while Mother was at FRC, the Agency (1) made an in-person visit
to Tulare County to check on Minor; (2) spoke to maternal great cousin M.R.,
who agreed to allow her home in Los Angeles to be used as a midway point
for visits between Mother and Minor; and (3) met with Mother’s case
12
manager from FRC regarding Mother’s progress. It discussed with Mother
her long-term plans once she completed FRC; and arranged for a DSEP
screening assessment for Minor and a CFT for the family (that resulted in a
seven-page summary and action plan).
When Mother was nearing completion of the FRC program, the Agency
again discussed her transition plans. It was informed she had secured a bed
at Solutions for Change, which reported “a 100 percent success rate with
reunifying families that have children involved with Child Welfare Services.”
The Agency also communicated with Mother’s FRC counselor about
visitation, informing the counselor that it could provide Mother “with airfare,
bus or train tickets” once she was allowed to leave San Diego County but
that, as it previously had indicated, it was up to Mother to go to criminal
court and request a change to the terms of her probation.
The Agency also arranged for an in-person meeting with Mother a few
days after she was asked to leave Solutions for Change. Mother, however,
canceled that meeting and stopped answering her phone. When she next
contacted the Agency, she stated that the program she wanted to enter
(McAlister) had referred her to Kiva, which the Agency had previously
recommended.
Thus, contrary to Mother’s argument that the Agency did “basically
nothing” to assist her, the record as a whole contains evidence “from which a
reasonable fact finder could have found it highly probable” that the Agency
made “reasonable efforts” to prevent the need for Minor’s removal. (See
§ 361, subd. (e); O.B., supra, 9 Cal.5th at pp. 1011–1012; H.E., supra,
169 Cal.App.4th at p. 725.) To find otherwise, as Mother argues, would
require us to reweigh the evidence and make new findings contrary to those
made by the juvenile court. This we cannot do on review for substantial
13
evidence. (See M.V., supra, 78 Cal.App.5th at p. 960 [“We view the record in
the light most favorable to the prevailing party and give due deference to how
the trier of fact may have evaluated the credibility of witnesses, resolved
conflicts in the evidence, and drawn reasonable inferences from the
evidence.”].)
Moreover, looking at the record as a whole, the evidence shows that
Mother was not always receptive to the services offered by the Agency (i.e.,
Kiva and a Substance Abuse Specialist assessment), preferring instead to
make her own decisions, including returning to the shelter and participating
in outpatient services and/or consulting her own “ ‘binder of services.’ ” In
addition, once she entered FRC, she told the Agency that she had all the
services she needed. The record thus shows that Mother declined services
offered by the Agency or asserted she had no need for them; it does not
support a finding the Agency did “basically nothing” for her.
Mother next argues the Agency’s efforts were unreasonable after she
tested positive for fentanyl. She claims the Agency should have investigated
whether it was a false positive due to her medication and/or sought a
confirmatory test. We again disagree.
Mother made the same “false positive” argument in the juvenile court,
which it rejected for lack of any evidentiary support. We likewise decline her
invitation to credit evidence that is not in the record. (See In re Gerardo A.
(2004) 119 Cal.App.4th 988, 995 (Gerardo A.) [an appellate court may reject
an argument based on speculation because it is “appellant’s burden to
affirmatively show error on the record”].)
The record further shows that after Mother’s positive test for fentanyl,
she canceled her meeting with the Agency and stopped answering her phone.
Thus, even had the Agency sought to retest Mother, it could not have
14
contacted her. And by the time Mother next communicated with the Agency,
she stated she had already drug tested for her probation officer, and that the
test would come back “clean.”6 The evidence thus does not support Mother’s
claim that the Agency “simply condemned” her for testing positive for
fentanyl, without offering any assistance, when it was Mother who remained
out of contact with the Agency and was making her own decisions regarding
testing.
Finally, Mother claims that the Agency’s disclosure of her positive drug
test to her probation officer allegedly violated section 827, prohibiting such
disclosures without a court order, and that this disclosure caused Minor to be
removed from her physical custody. We are not persuaded.
Briefly, section 827 governs the release of juvenile court records,
including “ ‘enumerat[ing] a list of persons who may inspect a juvenile case
file without a court order.’ ” (City of Eureka v. Superior Court (2016)
1 Cal.App.5th 755, 761.) This list includes “attorneys for the parties, judges,
referees, other hearing officers, probation officers, and law enforcement
officers who are actively participating in criminal or juvenile proceedings
involving the minor.” (§ 827, subd. (a)(1)(E), italics added.) Otherwise, a
juvenile case file “ ‘may be inspected by “[a]ny other person who may be
designated by court order of the judge of the juvenile court upon filing a
petition.” ’ ” (City of Eureka, at p. 761.)
We note the statute is limited to the “inspect[ion]” of a juvenile’s “case
file.” (§ 827(a)(1) (italics added); see J.E. v. Superior Court (2014)
223 Cal.App.4th 1329, 1337 (J.E.) [we recognized the Legislature enacted a
6 There is no other evidence in the record showing that Mother took this
test and, if so, whether it was positive or negative.
15
statutory scheme, including section 827, “specifically governing access to
juvenile records” due to the “strong public policy of confidentiality of juvenile
records”] (italics added)].) We therefore question whether section 827 applies
in this case, as Mother is not alleging the Agency disclosed Minor’s “case file”
or “juvenile records” to her probation officer. Instead, she claims it was the
disclosure of her positive test that violated the statute.
But even if section 827 applied, we conclude it is not reasonably
probable that a result more favorable to Mother would have been reached –
that at disposition, the juvenile court would have returned Minor to her
physical custody. (See In re Celine R. (2003) 31 Cal.4th 45, 59–60 (Celine R.)
[the harmless error doctrine of People v. Watson (1956) 46 Cal.2d 818 –
applicable in dependency cases – provides that a dependency court order
should not be set aside unless it is reasonably probable the result would have
been more favorable to the appealing party but for the purported error].)
As summarized, Mother has a long history of daily substance use,
which led to Minor testing positive for methamphetamine and cannabis.
Mother relapsed on alcohol and THC during her three-month stay at FRC,
then consumed alcohol with maternal grandmother just days after her intake
at Solutions for Change. The following day, she tested positive for fentanyl;
although she asserted the test was a “false positive,” she provided no
evidence to support that conclusion. Mother had another “relapse[]” after
leaving that program, about a month before the contested hearing. While we
commend Mother for her continued efforts to become and remain sober so she
can reunite with her daughter, we conclude under the facts of this case that it
is not reasonably probable the juvenile court would have returned Minor to
her care at this point in the dependency. (See Celine R., supra, 31 Cal.4th at
pp. 59–60.)
16
In addition, we note there is no evidence in the record to support her
claim that the Agency’s disclosure caused her incarceration, as the juvenile
court also recognized. Such evidence might have included records from the
criminal court and/or the testimony of her probation officer. Given this lack
of evidence, we conclude any inference that the Agency caused Mother’s
incarceration would be purely speculative on our part. (See Gerardo A.,
supra, 119 Cal.App.4th at p. 995.)
DISPOSITION
The juvenile court’s March 4, 2026 order is affirmed.
DATO, Acting P. J.
WE CONCUR:
BUCHANAN, J.
CASTILLO, J.
17