Filed 9/2/26 K.C. v. Superior Court CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 THREE
K.C.,
Petitioner, G067033
v. (Super. Ct. No. 24DP0146)
THE SUPERIOR COURT OF OPINION
ORANGE COUNTY,
Respondent;
ORANGE COUNTY SOCIAL
SERVICES AGENCY et al.,
Real Parties in Interest.
Original proceedings; petition for extraordinary writ to challenge
an order of the Superior Court of Orange County, Daphne Grace Sykes,
Judge. Petition denied.
Orange County Parent’s Counsel and Sunny Dillon for Petitioner.
No appearance for Respondent.
Leon J. Page, County Counsel, Debbie Torrez and Chloe R.
Maksoudian, Deputies County Counsel, for Real Party in Interest Orange
County Social Services Agency.
Sara Nakada, Public Defender, and Brian Okamoto, Deputy
Public Defender, for Real Party in Interest L.R., Sr.
No appearance for Minor.
* * *
Petitioner K.C. (Mother) seeks extraordinary relief (Welf. & Inst.
Code, § 366.26, subd. (l); Cal. Rules of Court, rule 8.452) from the juvenile
court’s order made at the concurrent 18-month and 24-month status review
hearing, terminating services and setting a hearing pursuant to section
366.26 to consider termination of parental rights and implementation of a
permanent plan for her son L.R. (the child).1 We deny Mother’s petition for
extraordinary writ relief.
FACTS AND PROCEDURAL HISTORY2
I.
THE JUVENILE COURT SUSTAINS THE CHILD WELFARE PETITION
The juvenile court found true by a preponderance of the evidence,
the allegations of an amended child welfare petition (the petition), filed by
the Orange County Social Services Agency (the Agency) on behalf of the child,
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise specified.
2 Sections I and II summarize relevant portions of the fact and
procedural history contained in the prior opinion in this case (In re L.R. (Apr.
9, 2026, G065851) [nonpub. opn.] (L.R.)), where a full summary of the facts
and procedural history can be found. Quoted material in those two sections
are taken directly from that prior opinion.
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who was then three years old. “The petition alleged the child came within the
jurisdiction of the juvenile court under section 300, subdivision (b)(1) because
the child suffered, or there was a substantial risk the child would suffer,
serious physical harm or illness: (1) as a result of the failure or inability of
the parents to supervise or protect the child adequately and (2) by the
inability of the parents to provide regular care for the child due to their
mental illness or substance abuse.” (L.R., supra, G065851.)
The following summarizes relevant allegations of the petition.
“[O]n January 25, 2024, the child was admitted to the hospital for ‘a swollen
neck/lymph node issue.’ Two days later, the child submitted to a urine drug
screening test which tested positive for the presence of fentanyl. Mother
reported she had ‘“no idea” how the child could have tested positive for
fentanyl’ and denied observing ‘any symptoms of fentanyl exposure.’ Mother
reported she and the child had been at a laundromat the night before the
child’s hospitalization, which laundromat, according to the police, was known
for ‘transient activity and drug use.’ The child was taken into protective
custody and placed with a maternal relative.
“The child had prior exposure to fentanyl in May 2022. After the
parents and the child attended a swap meet ‘known to have controlled
substance sales,’ the child became nonresponsive after ingesting fentanyl.
Paramedics administered Narcan to the child upon their arrival at the scene.
“Before that, in October 2021, oxycodone, hydrocodone, Xanax
bars, Alprazolam, and buprenorphine were found inside a locked safe at the
maternal grandparents’ residence during a probation search of [the child’s
father, L.R., Sr.]. Mother and Father were thereafter arrested.
“The petition further alleged Mother had unresolved substance
abuse problems involving heroin, marijuana, alcohol, Xanax, fentanyl, and
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methamphetamine. Mother started experimenting with drugs at 16 years old
leading to her use of marijuana, alcohol, Xanax, and methamphetamine.
While in jail at the age of 19 years, Mother used heroin; she later used heroin
with Father. The maternal grandparents reported Mother used drugs during
her pregnancy with the child but has been sober since having the child.
“Mother reported her ‘“on and off”’ use of heroin since 2018. She
claimed the last time she used heroin, smoked marijuana, or used THC was
in December 2023. She denied having a then-current substance abuse
problem.
“The petition alleged Father also had an unresolved substance
abuse problem which involved his use of heroin, oxycodone, hydrocodone,
Xanax bars, Alprazolam, and buprenorphine. Mother reported heroin was
Father’s drug of choice although she did not know if he was still using.
“Father has multiple drug-related criminal charges and
convictions. He has been arrested, charged, and/or convicted of assault with a
semiautomatic firearm (Pen. Code, § 245, subd. (b)), possession of a controlled
substance (Health & Saf. Code, § 11350), and possession of a controlled
substance without a prescription (Bus. & Prof. Code, § 4060).” (L.R., supra,
G065851.)
The following month at the disposition hearing, “the juvenile
court declared the child a dependent child of the court under section 360
subdivision (d).” (L.R., supra, G065851.) Pursuant to section 361, subdivision
(d), the court found “reasonable efforts had been made to ‘eliminate the need
for removal of the child from his home’ and further found vesting custody of
the child ‘with the parents would be detrimental to the child.’” (Ibid.) The
court approved a case plan and a visitation plan for the parents which
included “counseling, parenting education, a 12-step program, substance
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abuse testing, and participation in an outpatient substance abuse program.”
(Ibid.)
II.
THE 12-MONTH REVIEW HEARING
In a report submitted by the Agency several months before the
July 2025 12-month review hearing, the Agency initially recommended the
juvenile court continue services for an additional six months and set the
matter for an 18-month review hearing. The Agency had reported, inter alia,
Mother had completed a medical detoxification program, spent more than 30
days at Pheonix House, and participated in drug patch testing services and a
substance abuse outpatient program.
The Agency’s recommendation changed in its April 23, 2025
addendum report to recommend the termination of reunification services for
the parents. The Agency reported that although Mother claimed she had been
sober as of December 12, 2024, “Mother’s drug patch test results continued to
yield positive results for methamphetamine and fentanyl.” (L.R., supra,
G065851.)
The Agency produced evidence at the hearing showing Mother
had tested positive for fentanyl at the level of: (1) 3 ng/mL during the May 14
to May 28, 2025 drug patch period; (2) 5 ng/mL during the March 20 to
April 9 drug patch test period; (3) 14 ng/mL during the March 4 to March 20
drug patch test period; and (4) 16 ng/mL during the February 18 to March 4
drug patch test period. Mother denied having relapsed or otherwise using
illicit substances.
At the hearing, evidence was presented which suggested that the
fact Mother’s levels of fentanyl were decreasing since March 2025 indicated
Mother might not have been actively using fentanyl. Mother’s outpatient
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substance abuse program physician explained, “‘“[T]he way fentanyl works, it
processes and metabolizes through the live[r], is stored in fat cells, and it can
stay in your body for a long time.””” (L.R., supra, G065851.) Mother’s
behavioral health therapist and case manager agreed Mother’s fentanyl
levels were “‘indicative of an individual who is not actively using fentanyl.’”
(Ibid.)
The social worker testified at the hearing that she did not have
reason to believe Mother was then currently using. She explained Mother’s
most recent drug patch test results were negative and Mother had been “‘very
cooperative and engaged’” with the social worker. (L.R., supra, G065851.)
Mother’s behavioral health therapist and case manager testified
that, in her experience, “it is not unusual for a client to have abstained from
substances and still test positive for several months thereafter,” and she
“observed Mother’s test results generally reflect[ed] declining levels of
substances in her system.” (L.R., supra, G065851.)
Following the 12-month review hearing, the juvenile court stated:
“‘What I want to do, I do want to continue this for six months. I want to give
the parents an additional opportunity—a little more time.’ The court stated it
understood the parents were involved in ‘pretty significant long-term drug
use’ and that ‘it takes a few tries sometimes to get that on track and to make
the appropriate adjustments.’” (L.R., supra, G065851.) The court expressly
warned Mother, “‘Going forward, the drug tests by the parents need to be
completely, completely clean.’” (Ibid.) The juvenile court continued services
and set the matter for a concurrent 18-month and 24-month review hearing.
“The child appealed from the juvenile court’s order continuing
services to the parents and setting a concurrent 18- and 24-month review
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hearing.” (L.R., supra, G065851.) A panel of this court in L.R., supra,
G065851, affirmed the court’s order.
III.
THE CONCURRENT 18-MONTH AND 24-MONTH REVIEW HEARING
The concurrent 18-month and 24-month review hearings took
place over four days in April and May 2026. The juvenile court accepted into
evidence the Agency’s addenda reports dated January 9, 2026, February 19,
2026, March 25, 2026, April 21, 2026, April 30, 2026, May 11, 2026, and May
27, 2026 as well as certain documentary evidence proffered by Mother at the
hearing. In addition, assigned social worker Maja Nikolic and Mother each
testified at the hearing.
A. Summary of Relevant Evidence
Mother continued to drug patch test which yielded a mix of
negative and positive test results for the presence of fentanyl as reported in
the Agency’s April 30, 2026 addendum report as follows:
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The record shows Mother thereafter tested negative for fentanyl
for the drug patch wear period of April 16 through April 29, 2026.
Mother continued to deny using fentanyl and denied knowing
why she was testing positive. The social worker received confirmation from
the lab that provided the drug patch testing services that none of the
medications Mother reported taking could have caused a positive fentanyl
test.
In addition, Mother’s counseling services were terminated due to
there being a “standstill in progress.” Mother had expressed being unwilling
to work with the Agency and to address the Agency’s concerns. The therapist
reported Mother “denies the concerns of the Agency, [and] believes she’s done
everything she needs to [in order] to have the child returned to her care.” The
therapist did not submit another extension referral because “an extension
wouldn’t necessarily help more progress to be made at this point.”
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The social worker testified “that [al]though Mother has
participated in services, she has not been able to demonstrate or share
insight” and hasn’t demonstrated “progressive behavioral changes.”
B. The Juvenile Court Terminates Services and Sets Permanency Hearing
The juvenile court terminated reunification services to Mother
and Father and set a permanency hearing pursuant to section 366.26. Mother
filed a petition for extraordinary writ relief seeking to set aside the court’s
orders at the concurrent 18-month and 24-month reviewing hearings. Father
filed a letter in support of Mother’s writ petition.
DISCUSSION
I.
GOVERNING LEGAL PRINCIPLES AND STANDARD OF REVIEW
At the 18-month review hearing, the juvenile court must return
the child to the physical custody of his or her parent or legal guardian “unless
the court finds, by a preponderance of the evidence, that the return of the
child . . . would create a substantial risk of detriment to the safety,
protection, or physical or emotional well-being of the child.” (§ 366.22,
subd. (a)(1).) If the child is not returned to a parent at the permanency review
hearing, the court must terminate reunification services and order a hearing
pursuant to section 366.26. (§ 366.22, subd. (a)(3).)
“We review the juvenile court’s finding of detriment for
substantial evidence. [Citations.] Under that 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. [Citations.] . . . To be
substantial, the evidence must be of ponderable legal significance and must
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be reasonable in nature, credible, and of solid value.” (Georgeanne G. v.
Superior Court (2020) 53 Cal.App.5th 856, 865.)
II.
SUBSTANTIAL EVIDENCE SUPPORTS THE DETRIMENT FINDING
Following the concurrent 18-month and 24-month review
hearing, the juvenile court observed “Mother has checked off the boxes for the
services in her case plan.” The court found, however, returning the child to
Mother would create a substantial risk of detriment to the child, within the
meaning of section 366.22, subdivision (a)(1), because Mother continued to
(1) test positive for fentanyl since the 12-month review hearing and (2) lack
insight about why this case was brought in the first place. Substantial
evidence supports the court’s detriment finding.
At the hearing, the juvenile court explained that,
notwithstanding the court’s “zero tolerance position” and specific warning to
Mother and Father at the 12-month review hearing “they must have
absolutely no positive tests going forward,” Mother has since tested positive
for fentanyl at least six times, the most recent occurring only a few months
earlier. The court noted Mother’s six positive tests occurred in between her
testing negative for fentanyl.3
Consequently, the juvenile court explained: “Mother’s statement
that her sobriety date was back in December of 2024 is simply not believable
based on the evidence. There’s no evidence that these drug tests were invalid
or not properly administered. Mother’s explanation that it must be her other
medicine that made the test positive for fentanyl is not a valid explanation
and is contrary to the evidence.”
3 The juvenile court observed after the 12-month review hearing,
Father completely stopped submitting to drug testing.
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Mother does not challenge the juvenile court’s finding that since
the 12-month review hearing in July 2025, Mother has tested positive for
fentanyl six times. Nor does Mother argue insufficient evidence supports the
court’s finding Mother’s other medications could not have caused any positive
test.
Instead, citing Jennifer A. v. Superior Court (2004)
117 Cal.App.4th 1322, 1327–1328, Mother argues “an imperfect drug-testing
record does not, standing alone, establish that return of a child would create
a substantial risk of detriment; the pertinent inquiry is not whether the
parent’s testing record is unblemished, but whether the record as a whole
demonstrates an actual, current risk to the child.”
Unlike the instant case, the child welfare case in Jennifer A. v.
Superior Court was not based upon the mother’s drug use. In that case, the
social services agency had never asserted that any drug use impaired the
mother’s parenting abilities. While it became apparent during the course of
the case that the mother was an occasional marijuana user, the appellate
court concluded the evidence of the mother’s imperfect drug testing was
insufficient to establish any substantial risk of detriment to the mother’s
children. (Jennifer A. v. Superior Court, supra, 117 Cal.App.4th at pp. 1327–
1328.)
Here, in contrast, child welfare jurisdiction was primarily based
on the fact the child tested positive for fentanyl when he was only two years
old, at which time paramedics had to administer Narcan “to bring him back
from the brink of death,” and again tested positive for fentanyl 20 months
later when he was four years old. It was also based on Mother’s and Father’s
concomitant and unresolved use of fentanyl. The record establishes that two
years after the jurisdiction and disposition hearing and up until a few months
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before the subject order, Mother continues to have positive drug patch results
for the presence of fentanyl.
As pointed out by the juvenile court, although Mother denies
continued fentanyl use, no evidence explains why she continued to test
positive. Unlike Mother’s drug test history before the 12-month review
hearing which reflected a downward trend of fentanyl levels in her system,
Mother’s post 12-month review hearing drug test history showed fluctuating
levels of fentanyl. No evidence explained why Mother would continue to have
fentanyl in her system eight months and counting after she claimed sobriety
effective December 2024 or how Mother could alternatively test positive and
negative for the presence of fentanyl unless she was actively using that
substance.
As explained by the juvenile court, even if it were to “take[]
[Mother’s] word and conclude[] that [Mother] really has not used since
December 2024, assuming she has not used since December 2024 yet she’s
still testing positive on several different occasions, then that means that
drugs are still somehow, someway getting into her system; she has no idea
how, where or when. It follows that if this child were around [Mother]
unsupervised, then this could happen to the child. Drugs could find their way
into his system yet a third time without anyone knowing how it happened.”
Mother does not respond to the court’s concern in her appellate briefs.
In terminating services and setting a permanency hearing, the
juvenile court also found Mother continued to lack insight why this child
welfare case was brought in the first place. At the concurrent 18-month and
24-month review hearing, the court explained: “Services are set up so that a
parent can gain what we call insight; meaning new thought, understanding,
knowing and being able to state and say clearly what led up to the problem,
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what are the factors, what specific things will prevent it in the future. [¶]
[Mother’s] therapist concluded that Mother did not get to the level which was
needed for the therapist to be sure that Mother had enough understanding of
what brought her to this point. Furthermore, the therapist’s professional
opinion was that even with future sessions, the therapist would not be able to
get through to Mother on this point. When asked on the stand why the child
was taken, Mother simply said because she was doing drugs.”
Citing, inter alia, Blanca P. v. Superior Court (1996)
45 Cal.App.4th 1738, Mother argues the evidence of her lack of insight is
akin to “unspecific, uncorroborated professional impression” and insufficient
to support the juvenile court’s finding of detriment. Unlike the circumstances
in Blanca P., here, the court did not rely solely on the therapist’s opinion
regarding Mother’s lack of insight. Instead, the court’s detriment finding was
also based on Mother’s drug test results indicating her continued use of
fentanyl.
DISPOSITION
The petition for extraordinary writ relief is denied.
MOTOIKE, P. J.
WE CONCUR:
MOORE, J.
DELANEY, J.
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