Filed 10/5/26 M.S. v. Superior Court CA4/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
M.S.,
Petitioner, G067046
v. (Super. Ct. No. 24DP0955)
THE SUPERIOR COURT OF
ORANGE COUNTY, OPINION
Respondent;
ORANGE COUNTY SOCIAL
SERVICES AGENCY, et al.,
Real Parties in Interest.
Original proceeding; petition for writ of mandate to challenge
order of the Superior Court of Orange County, Robert Goodkin, Judge.
Petition denied. Request for Stay denied.
Sara Nakada, Public Defender, Richard Cheung, Assistant Public
Defender, and Brian Okamoto, Deputy Public Defender, for Petitioner.
No appearance for Respondent.
Leon J. Page, County Counsel, Debbie Torrez, Supervising
Deputy, and Aurelio Torre, Senior Deputy, for Real Party in Interest Orange
County Social Services Agency.
No appearance by the Minor.
* * *
This is a writ proceeding filed by M.S. (mother), challenging the
juvenile court’s termination of reunification services with S.S. (minor), at the
combined 12- and 18-month review hearing and order that a hearing be
scheduled under Welfare and Institutions Code section 366.26 (section .26
1
hearing). Mother contends substantial evidence does not support the court’s
finding by a preponderance of the evidence that returning minor to her would
create a substantial risk of detriment to the minor’s safety, protection, or
physical or emotional well-being. Alternatively, mother contends the court
abused its discretion in denying her motion for an extension of reunification
services pursuant to section 352. We find no merit in the petition and deny
relief.
STATEMENT OF THE CASE
Although this writ proceeding involves only minor’s child welfare
proceeding, it is inextricably intertwined with the child welfare proceedings
involving minor’s siblings. We thus summarize those child welfare
proceedings where relevant.
1
All further statutory references are to the Welfare and
Institutions Code.
2
I.
REMOVAL AND INITIAL PETITION
In 2023, minor’s siblings were detained from mother’s care, and
the juvenile court sustained a jurisdictional petition alleging serious domestic
violence between mother and minor’s father (father), and mother’s history of
methamphetamine use. Subsequently, in May 2024, mother and father were
granted custody of minor and minor’s siblings under family maintenance
supervision.
On August 5, 2024, Orange County Social Services (SSA)
requested and was granted a protective custody warrant to remove minor and
minor’s siblings from father’s custody. On August 8, a non-custody petition
was filed on behalf of minor, who was 7-months-old at the time. It alleged
physical abuse, general neglect, abuse of sibling, and caretaker absence. At
the hearing on minor’s initial petition held on August 12, the juvenile court
ordered the minor to remain in mother’s custody subject to 14 protective
orders, including that mother would not use alcohol, marijuana or illegal
drugs, comply with drug testing, and not expose minor to domestic violence.
On October 7, a protective custody warrant was granted
removing minor and minor’s siblings from mother’s care. SSA reported
mother violated the protective orders on drug testing by having three “no
shows,” several “unable to produce” results, and a positive result for alcohol
on September 28. SSA also reported that instead of calling the testing
provider to schedule installation of a court-ordered drug patch, she called the
provider to ask how long it took drugs to get out of her system.
On October 10, the juvenile court found there was a substantial
danger to the physical health of minor and continuance in mother’s custody
3
was contrary to the minor’s welfare. Minor was placed with his paternal
aunt.2
In the November 1 jurisdictional/dispositional report, SSA stated
it was concerned about mother’s failure to comply with the protective orders
on substance abuse and drug testing. Father claimed mother continued to use
drugs and was using a friend’s urine for drug tests, which mother denied.
SSA reported mother maintained contacts with father without disclosing the
contacts to SSA, including being dishonest to a social worker on one occasion.
In the December 12 addendum report, SSA noted mother
reported attending two out of ten personal empowerment program (PEP)
classes in person, but stated it was difficult for her to attend the classes. She
agreed to a Family Resource Center (FRC) referral so she could access PEP
classes online. However, she did not report to FRC for intake and the referral
was terminated. Mother attended three 12-step program meetings, but did
not attend on a weekly basis. When asked about her positive
methamphetamine drug patch result, she initially denied using, but later
admitted using “a week and a half ago.” She explained she used when she
experienced problems with a partner. On December 4, mother did not report
for drug testing and informed the provider she had relapsed. On December 9,
mother informed a social worker she had used methamphetamine.
After several continuances, on February 5, 2025, the juvenile
court sustained an amended jurisdictional petition and declared minor a
dependent of the court. A six-month review hearing was set for August 4.
2
Minor’s siblings were placed with other caregivers.
4
II.
SIX-MONTH REVIEW
As of May 1, mother had completed eight of ten PEP classes,
completed two therapy sessions, and was participating in a 12-step program,
although she was at the first step and had no sponsor. On June 25, 2025,
mother’s substance abuse counselor noted mother had been making progress
and reported she did not have “the cravings to use drugs like she did in the
past.”
However, in the August 4 status review report, SSA noted mother
had tested positive for methamphetamine via drug patch on four different
occasions in May and June 2025. Mother adamantly denied use and
suggested a recent intimate partner might have caused her positive results.
She tested positive for opiates, hydrocodone, and hydromorphone on April 28,
2025, and she missed multiple drug tests in her outpatient program.
SSA concluded it could not safely return minor to mother due to
concerns about her substance abuse and lack of insight in May and June
2025, as well as the minor’s young age. It recommended the juvenile court
find that returning the minor to the physical custody of mother would create
a substantial risk of detriment to the physical or emotional well-being of the
minor. It further recommended termination of mother’s reunification services
and setting a section .26 hearing for selection of a permanent plan for the
minor.
Subsequently, the juvenile court set a contested six-month review
hearing for September 8.
In the September 8 addendum report, SSA continued its
recommendations to terminate reunification services and scheduling a section
.26 hearing. It noted that during the reporting period, mother tested negative
5
on her drug patch tests and a hair follicle drug test. When the social worker
commended mother for the negative results, mother replied she had not
taken drugs. Her substance abuse counselor reported that mother was
consistently drug testing and was expected to complete the program in four to
six weeks.
On September 8, the juvenile court continued the contested six-
month review hearing to October 23.
In the October 23 addendum report, SSA reported mother
continued to test negative on her drug patch tests. She was attending general
counseling and participating in a 12-step program.
The October 23 contested six-month review hearing was trailed to
the following day. On October 24, the juvenile court found by a
preponderance of the evidence that returning the minor to mother would
create substantial risk of detriment to the minor’s safety, protection, or
physical or emotional well-being. However, it found a substantial probability
the minor may be returned to the physical custody of mother within six
months. It found mother’s progress was minimal, but did not terminate
reunification services. It continued the case to December 4, for a 12-month
permanency review hearing.
III.
12-MONTH REVIEW
In the December 4 status review report, SSA noted mother had
been testing negative via drug patch since June 23. Mother completed
outpatient drug treatment and continued to attend 12-step meetings,
although she had not provided recent attendance cards. SSA, however, noted
that “mother has not taken accountability for her previous positive test
results and has denied any substance use over the last year.” Mother
6
“continues to minimally demonstrate an ability to recognize the [minor]’s
cues and behaviors and needs guidance in establishing appropriate
responses.”
The juvenile court continued the 12-month review hearing to
January 15, 2026.
In the January 15 addendum report, SSA changed its
recommendations to the juvenile court from terminating reunification
services to continuing the 12-month review hearing for 45 days for further
assessment of the mother’s visitation. SSA noted mother had five hours of
unsupervised visitation and five hours of supervised visitation at Olive Crest
Visitation Center.
The juvenile court continued the 12-month review hearing to
March 11.
In the March 11 addendum report, SSA changed its
recommendation to termination of reunification services and scheduling of a
section .26 hearing. SSA explained mother tested positive for
methamphetamine and opiates on a patch collected on January 15. When a
social worker informed mother of the results on February 6, she stated it was
“‘ridiculous’” she tested positive because she had been sober for over a year.
Mother denied ever using heroin, but the social worker explained sometimes
substances are laced. Mother became upset when informed that due to the
positive drug test results, SSA would restrict her visitation back to fully
supervised and recommend termination of services.
On February 9, 2026, mother produced a hair follicle test result
that was negative for methamphetamine and opiates. When the social worker
asked the laboratory used by SSA about the comparability of a drug patch
test to a hair follicle test, a laboratory representative responded by
7
confirming the patch result was valid, that it was not unusual for different
types of testing forms to not agree, and that hair testing does a good job in
detecting chronic use of drugs but not sporadic or occasional use.
In the March 11 addendum report, SSA also noted mother was
attending a batterer’s intervention program, but had recently stopped
attending 12-step program meetings due to headaches. Her visitation was
regular and minor usually responded well to her.
On March 11, the juvenile court continued the contested 12-
month review hearing to May 18, 2026.
In the May 18 addendum report, SSA noted mother tested
negative during the reporting period. Mother also provided documentation of
her attendance at 12-step program meetings. Additionally, she submitted a
batterer’s intervention program progress report showing her attendance at
all sessions and her full participation.
IV.
COMBINED REVIEW HEARING
The contested 12-month review hearing was subsequently
combined with the 18-month review hearing. On May 28, the juvenile court
heard testimony from mother and mother’s expert, forensic toxicologist
Jennifer Harmon.
A. Mother’s Testimony
Mother testified she understood the child welfare proceedings
initially had been opened because she used substances. “I fulfilled all the
requirements, and [SSA] gave [my children] back, and the case closed. And
then [SSA] opened the case again because I slapped my husband.” Asked
about the services in this case, she stated she had done “everything that was
asked of [her].”
8
When asked how long she has been sober, mother replied since
December 12, 2024. She acknowledged a recent drug test was positive, but
she did not believe it was accurate because she had not consumed any
substances. Asked about how she intended to stay sober, she stated she
understood the problems her substance abuse caused her, including the loss
of custody of her children. She also attends a 12-step program and has
support from her mother and sister.
On cross-examination, mother was asked about four positive
drug patch tests for methamphetamine in May and June 2025. She
responded that all those positive tests were incorrect. Asked about what step
she was currently on in the 12-step program, mother stated she was “not
exactly in the steps, but . . . participate[s]” in meetings. She learned about the
steps at the meetings, but no one told her she had to complete each step. She
was on the first step (maintaining sobriety), but could not identify any of the
other 12 steps.
B. Harmon’s Testimony
Harmon testified she is a private consultant forensic toxicologist
who previously worked for the Orange County Crime Lab for 19 years and
the San Diego County’s Sheriff’s Department Crime Lab for six years.
Harmon reviewed the latest positive patch result indicating mother was
positive for methamphetamine and heroin. She noted the operator of the lab
used by SSA has a “technical guide” for how it reports positive results for
methamphetamine. “The technical guide requires that the metabolite [of the
parent drug] be present at what we call their limit of quantitation [LOQ].
And that the parent drug, methamphetamine, be present or positive at their
threshold.” The LOQ requirement is to ensure there is no environmental
contamination. Here, in the case of the positive drug patch result,
9
methamphetamine was present at the LOQ, but its metabolite
(amphetamine) was below the LOQ. Thus, it could be a false positive. When
asked to explain the difference in results between the positive drug patch test
and the negative hair follicle test result, Harmon opined the positive patch
result “could indicate that [mother] had kind of a single use event but no
chronic use.” On cross-examination, Harmon acknowledged that her critiques
of the lab’s testing protocols did not mean she deemed the lab tests to be
invalid. A negative hair follicle test would not invalidate the positive patch
test. As to the positive heroin result, Harmon testified that “[i]t is common for
narcotic analgesics and stimulants potentially to be mixed or the supply [to
be] contaminated.”
C. Court’s Rulings
Following the witness testimony, all counsel made their
arguments. Toward the end of her argument, citing Michael G. v. Superior
Court (2023) 14 Cal.5th 609 (Michael G.), mother’s counsel asked the juvenile
court to continue services if it was not inclined to return minor to mother.
On June 8, the juvenile court ruled on SSA’s request to terminate
reunification services and set a section .26 hearing. It first summarized the
case history, including that mother violated protective orders relating
substance abuse by having “three no-shows and several unable-to-produce
results and a positive for alcohol on September 28th, 2024.” After testing
positive for methamphetamine in December of 2024, mother admitted using
methamphetamine. In May and June 2025, on three occasions, mother tested
3
positive for methamphetamine and the metabolite amphetamine. Finally, as
3
Although the court noted mother had three positive drug patch
test results, the record shows she had four positive results.
10
to mother’s most recent positive drug patch result, the court noted Harmon
“explained potential concerns but ultimately stated she had no evidence or no
opinion that it was an invalid test.”
The juvenile court stated it did not feel one positive or one
negative patch test is “persuasive for any of the parties.” Rather, it is the
“entire case plan services, all of the testing . . . , their statements in the
report, and . . . , if they testify, their testimony in court.” Even taking
Harmon’s concerns into account about the LOQ, the three positive tests in
May and June 2025 are valid. Mother’s completion of programs was very
important to the court, but the most important and persuasive fact to the
court is “a parent demonstrating insight into the issue or issues that brought
them before the [c]ourt. And repeatedly saying that you’ve been sober since
2024 when there’s multiple positive tests for methamphetamine does show
that the mother at this time still is lacking the insight as it relates to the
substance abuse.”
The juvenile court found that the return of minor to mother’s care
would create a substantial risk of detriment to the minor “given that the
parent has not demonstrated the insight yet into the case into dependency.”
For those same reasons, the court would also terminate services. “The
services have been offered in [this] case for approximately 20 months, so
extending them does not seem that it would serve the best interest of
reunification and definitely not in the minor’s best interest.” The court set a
section .26 hearing for October 6, 2026.
On June 12, 2026, mother’s counsel filed a timely notice of intent
to challenge the juvenile court’s June 8 order via writ petition.
11
DISCUSSION
Mother contends substantial evidence did not support the
juvenile court’s finding that returning minor to mother would create a
substantial risk of detriment. Alternatively, she argues the court should have
continued the hearing and extended reunification services. We address the
arguments in order.
I.
SUBSTANTIAL RISK OF DETRIMENT
At the time of an 18-month permanency review hearing, the
juvenile court “shall order the return of the child to the physical custody of
their parent . . . unless the court finds, by a preponderance of the evidence,
that the return of the child to their parent . . . would create a substantial risk
of detriment to the safety, protection, or physical or emotional well-being of
the child.” (§ 366.22, subd. (a)(1).) “‘In reviewing a challenge to the sufficiency
of the evidence supporting the jurisdictional findings and disposition, we
determine if substantial evidence, contradicted or uncontradicted, supports
them. “In making this determination, we draw all reasonable inferences from
the evidence to support the findings and orders of the dependency court; we
review the record in the light most favorable to the court’s determinations;
and we note that issues of fact and credibility are the province of the trial
court.”’” (In re I.J. (2013) 56 Cal.4th 766, 773.)
“In determining whether it would be detrimental to return the
child at the 18-month review, the court must consider whether the parent
participated regularly in any treatment program set forth by the plan, the
‘efforts or progress’ of the parent, and the ‘extent’ to which the parent
‘cooperated and availed himself or herself of services provided.’” (Blanca P. v.
Superior Court (1996) 45 Cal.App.4th 1738, 1748.) “[T]he notion of detriment
12
is at best a nebulous standard that depends on the context of the inquiry,”
but “‘[i]t 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.’ Rather, the risk of detriment must be substantial, such that
returning a child to parental custody represents some danger to the child’s
physical or emotional well-being.” (In re C.C. (2009) 172 Cal.App.4th 1481,
1490.) “Detriment can be shown many different ways.” (A.H. v. Superior
Court (2010) 182 Cal.App.4th 1050, 1059.) In making the detriment finding,
the juvenile court should keep in mind that it “has a special responsibility to
the child as parens patriae and must look to the totality of a child’s
circumstances when making decisions regarding the child.” (In re Chantal S.
(1996) 13 Cal.4th 196, 201.)
Here, the juvenile court reviewed the entire case history,
including mother’s repeated relapses and her present testimony that she was
sober since December 2024 despite her positive drug test results in mid-2025
and early 2026. Mother’s lack of insight combined with minor’s very young
age (two years old at the time of the hearing) constituted substantial evidence
to support the court’s finding that return of minor to mother’s care would
create a substantial risk of detriment to minor’s physical or emotional
wellbeing.
Mother argues her substantive progress with services, her
numerous negative drug test results, the lack of negative effects of her
substance abuse, and her demonstrable long-term commitment to
maintaining her sobriety undermines the finding of detriment. We disagree.
The juvenile court discredited her commitment to sobriety when
it concluded she lacked present insight into her drug use based on her denial
13
of use during the hearing. (Cf. In re Esmeralda B. (1992) 11 Cal.App.4th
1036, 1044 [“[D]enial is a factor often relevant to determining whether
persons are likely to modify their behavior in the future without court
supervision”].) Although the minor has not suffered any serious harm from
the mother’s substance abuse, the court must evaluate whether there is a
substantial risk of detriment to the minor, not actual detriment. (Cf. In re
T.V. (2013) 217 Cal.App.4th 126, 135–136 [“The parent need not be
dangerous and the minor need not have been actually harmed before removal
is appropriate”].) Mother’s progress with services and compliance with the
case plan is not dispositive. (See In re Dustin R. (1997) 54 Cal.App.4th 1131,
1143 [“[S]imply complying with the reunification plan by attending the
required therapy sessions and visiting the children is to be considered by the
court; but it is not determinative”].) Thus, even if we credit mother’s contrary
evidence, under substantial evidence review, contradicted evidence can
support the factual finding of substantial risk of detriment. (In re I.J., supra,
56 Cal.4th at p. 773.) In sum, substantial evidence supported the court’s
finding that returning minor to mother’s care would create a substantial risk
of detriment to the minor’s physical or emotional wellbeing.
II.
CONTINUANCE OF SERVICES
As detailed in the factual summary, mother orally requested that
if the juvenile court was not inclined to return minor to her care, the case
should be continued and reunification services should be extended pursuant
to section 352. The court concluded extension of reunification services was
not in the minor’s best interest.
Section 352 provides that the juvenile court may “continue any
hearing under [the dependency law] beyond the time limit within which the
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hearing is otherwise required to be held” (§ 352, subd. (a)(1)), provided there
is “good cause” (id., subd. (a)(2)) and a continuance would not be “contrary to
the interest of the minor” (id., subd. (a)(1)). In evaluating the minor’s
interest, the court “shall give substantial weight to a minor’s need for prompt
resolution of his or her custody status, the need to provide children with
stable environments, and the damage to a minor of prolonged temporary
4
placements.” (Ibid.)
“The power to continue the permanency planning hearing implies
a power to continue reunification efforts.” (Michael G., supra, 14 Cal.5th at p.
634.) “In determining whether to grant relief, the juvenile court must
consider whether there are exceptional circumstances constituting good cause
for the continuance and whether the continuance would be contrary to the
child’s interests.” (Id. at p. 635.)
Here, mother has not shown there are exceptional circumstances
constituting good cause. Her progress on the case plan is undermined by her
lack of present insight into her substance abuse. Additionally, the juvenile
court had extended reunification services in October 2025, only for the
mother to have likely relapsed in January 2026 and affirmatively denied
prior validated positive drug tests at the combined review hearing in mid-
2026. It is not unreasonable for the court to conclude further reunification
services would not be effective. Finally, as mother acknowledges, more than
4
We note SSA did not object to the oral motion for a continuance,
notwithstanding the statutory requirement that “[i]n order to obtain a motion
for a continuance of the hearing, written notice shall be filed at least two
court days prior to the date set for hearing, together with affidavits or
declarations detailing specific facts showing that a continuance is necessary,
unless the court for good cause entertains an oral motion for continuance.” (§
352, subd. (a)(3).)
15
nineteen months had elapsed since the removal of the minor, who was seven
months old at the time. A further continuance of the case would be contrary
to the minor’s interest in prompt resolution of the custody status and
permanent placement. In sum, mother has not shown the court abused its
discretion in denying her request to continue the case and extend
reunification services under section 352.
DISPOSITION
The writ petition is denied. The request for a stay of the section
.26 hearing is similarly denied.
DELANEY, J.
WE CONCUR:
MOTOIKE, P. J.
SCOTT, J.
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