Filed 10/9/26
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re J.S., a Person Coming Under the
Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E087885
Plaintiff and Respondent, (Super.Ct.No. J303970)
v. OPINION
M.A.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Lynn M. Poncin,
Judge. Affirmed.
Brent Riggs, under appointment by the Court of Appeal, for Defendant and
Appellant.
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion
is certified for publication with the exception of “DISCUSSION” sections A and C.
1
Laura Feingold, County Counsel, Joseph R. Barrell, Deputy County Counsel for
Plaintiff and Respondent.
Defendant and appellant M.A. (Mother) appeals from the findings and orders
made at the six-month review hearing under Welfare and Institutions Code1 section
366.21, subdivision (e), continuing the removal of her daughter, J.S. (born February
2021; Minor), from her care and requiring she complete additional reunification services.
This is a second appeal in this case. In the first case, In re J.S. (May 6, 2026, E086754)
[nonpub. opn.] (J.S.-1),2 Mother appealed from the jurisdiction/disposition hearing,
arguing that the jurisdictional findings under section 300, subdivisions (b) and (g) were
not supported by substantial evidence. This court reversed the jurisdictional finding
involving Mother’s substance abuse in a previous case, but the remaining jurisdictional
and dispositional orders were affirmed.
While J.S.-1 was still pending in this court, the trial court conducted the six-month
review hearing pursuant to section 366.21, subdivision (e). At that hearing, the trial court
adopted the findings and orders provided by plaintiff and respondent San Bernardino
County Children and Family Services (CFS) without objection by Mother except for the
requirement of on-demand drug testing and that she had a positive drug test on October
1 All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
2 Mother filed a petition for review in the California Supreme Court on June 12,
2026, (S297049), which was denied on July 22, 2026.
2
28, 2025. The juvenile court ordered that Minor was to remain out of the custody of
Mother and Mother was granted six months additional reunification services.
On appeal, Mother claims that (1) The order keeping Minor from her should be
reversed because CFS did not prove detriment and the section 366.21, subdivision (e),
requirements were ignored; (2) The absence of a proof of service of CFS’s report
prepared for the section 366.21, subdivision (e), hearing that was to be served on Mother
10 days prior to the six-month review hearing requires reversal; and (3) She received
ineffective assistance of trial counsel based on counsel’s representation at a hearing on
September 22, 2025, where counsel did not object to a case plan that required substance
abuse testing, and by the same counsel who represented her at the six-month review
hearing, by failing to present evidence or argument that she should not be subject to
substance abuse testing. We confirm the trial court orders made at the six-month review
hearing.
FACTUAL AND PROCEDURAL HISTORY
A. SECTION 300 PETITION3
“The family first came to the attention of plaintiff and respondent San Bernardino
County Children and Family Services (CFS) in 2022. Minor was removed from Mother’s
care on October 22, 2022, due to allegations of general neglect. Minor was detained due
to concerns about Mother’s methamphetamine use and failure to provide adequate care.
Mother had left Minor in the care of a friend for seven weeks without providing any
3 Sections A, B and C of the “Factual and Procedural History” are drawn directly
from J.S.-1.
3
financial assistance. During the dependency, there was an incident of domestic violence
involving Mother and a window was broken. Mother was granted reunification services.
The father, P.S. (Father) was not granted services as he was only an alleged father.4
Minor was returned to the care of Mother on May 23, 2024, with family maintenance
services. The case was dismissed on January 21, 2025.
“On March 11, 2025, a report was made to the hotline at CFS that Mother made
Minor sleep in the corner and the room was ‘filthy.’ Mother had called Minor ‘Bitch,’
and pulled her hair. It was also reported that Mother used methamphetamine, heroin and
ecstasy. On March 19, 2025, another call was made to the hotline that Minor hides food
and is hungry. RP also stated that Mother called Minor names, their home was dirty, and
Minor wore ill-fitting clothes. Further, RP was concerned that Mother’s boyfriend kept
marijuana in the home.
“CFS social workers Alvaro and Fonseca made an unannounced visit to Mother’s
home on March 19, 2025, which was a hotel room. No one answered the door to the
room, but Alvaro left her business card at the door. Mother texted Alvaro later in the day
advising that she would not meet with Alvaro without an attorney.
“On March 20, 2025, Alvaro requested police officers perform a welfare check;
Alvaro and Fonseca accompanied the officer to the hotel. Front desk staff at the hotel
informed the officer that Mother and Minor had moved to another room. The officer
went to the room but no one answered the door. While waiting at the door, it was
4 “Father was arrested on June 30, 2020, for murder and is incarcerated at the
California State prison in Lancaster; he is not a party to this appeal.”
4
reported to Alvaro that Minor could be heard screaming and possibly being placed in a
bathtub. The person heard splashing and complaints from Minor that she was cold. The
person also heard Minor say, ‘don’t touch me there,’ and Mother and a male who was
present could be heard laughing. The person heard the child crying and screaming every
night.
“The officer left the location due to the inability to contact Mother. The social
workers remained. Mother eventually emerged from the room but refused to speak with
them without an attorney present. Minor was observed in the room. She had no visible
marks or bruises.
“That same day, Alvaro contacted the party who called the hotline to report
Mother (RP). RP stated that he had known Mother for four months. He had witnessed
Mother use methamphetamine while Minor was present. Mother frequently cursed at
Minor and Minor cursed back at Mother. The party took Minor to daycare for Mother.
On one occasion, he returned Minor to Mother and Minor begged him not to leave.
Minor chased after RP and asked him not to leave. Mother grabbed Minor by the hair
and ‘and aggressively ... pushed her back inside the room.’ RP told Mother not to treat
Minor like that in his presence and she told him she no longer wanted to see him. A
mutual friend of his and Mother told RP that Mother had left Minor strapped in a car seat
for seven hours in the hotel room.
“A warrant to interview Minor was obtained by CFS; Alvaro and Fonseco met
with Minor the afternoon of March 20 at the hotel. Minor did not have any visible marks
or bruises. She had dirt on her face, legs and feet. Minor … told the social workers she
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did not like living with Mother because she was mean, ugly and a scary monster. She
reported Mother had previously hit her but she could not recall if it left any mark.
Mother also pulled her hair. She spanked her on her buttocks. There was a male living in
the home that she only knew as ‘Mr.’
“Minor reported only eating one apple that day and that Mother sometimes would
not give her food. When Minor got in trouble, Mother would occasionally buckle her in
the car seat. Minor made a drawing of who she wanted to live in her home. She drew a
house with her and her friend inside the house. She drew Mother outside the house.
When the interview was over, Minor was informed that she would be returning home.
Minor did not want to return to the home and asked to leave with the social workers.
“CFS obtained a detention warrant for Minor and a police officer served it on
mother. Mother was visibly upset and called the social workers ‘child traffickers.’
Mother packed a bag for Minor and asked that Minor be placed with the same caregiver
as the previous dependency proceedings, as Minor had liked her. Mother believed that
the daycare Minor had been attending had reported Mother and made false accusations
because they did not like her. The daycare had made false accusations in the past that
Minor had bruises. While being transported, Minor reported she slept on the floor while
Mother and her boyfriend slept in the bed. Minor did not want to go back with Mother.
CFS placed Minor with Ms. M.
“On March 24, 2025, CFS filed a section 300 petition (petition) for Minor, Mother
and Father. It was alleged under failure to protect against Mother under section 300,
subdivision (b), that (b-1) she had a substance abuse problem and she failed or refused to
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rehabilitate and the untreated substance abuse placed Minor at substantial risk of physical
harm, abuse or neglect; (b-2) Minor was a prior dependent of the San Bernardino County
court pursuant to a section 300, subdivision (b) petition related to Mother’s substance
abuse; and (b-3) she had used inappropriate discipline toward Minor including but not
limited to pulling her hair and pushing her. It was alleged against Father pursuant to
section 300, subdivision (g), that he left without provisions for care and support of Minor
and was incarcerated making him unable to arrange for the care and custody of Minor.
“The detention hearing was conducted on March 25, 2025. The juvenile court
found a prima facie showing had been made that Minor came within section 300,
subdivision (b).”
B. JURISDICTION/DISPOSITION REPORT
“CFS filed its jurisdiction/disposition report on May 6, 2025. It was seeking a
continuance in order for Minor to be medically evaluated. It was recommending that the
allegations in the petition be found true, that Mother be granted reunification services and
that Minor be placed outside the home. Father should remain alleged, which would not
entitle him to reunification services. CFS also was recommending that visits between
Mother and Minor be discontinued as they caused trauma to Minor. Minor remained in
the home of Ms. M.
“Mother was interviewed on April 8, 2025. During the interview, Mother used
profanity and an elevated voice. She identified Father as the biological father of Minor.
Father was not at the birth of Minor nor on the birth certificate. Father remained in
prison custody. Mother believed RP was ‘Robert,’ and that he was lying. She met
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Robert and was receiving rides from him for several months but he stopped giving her
rides when he found out she had a boyfriend. Robert got mad at her because she
‘ “would not fuck him,” ’ which led to him reporting her to CFS. Mother also stated that
CFS employed people who are stupid and that want to take children.
Mother denied any substance abuse since 2023. She denied any marijuana in her
residence. She had never used heroin but admitted to using methamphetamine, marijuana
and drinking alcohol in the past.
“She had completed a six-month substance abuse program during the prior
dependency proceedings. Mother stated that Minor slept on a mat with bedding at the
hotel since there was only one bed in the room. Mother slept with her boyfriend in the
bed. When asked the boyfriend’s name, Mother responded, ‘ “none of your business.” ’
She had been with her boyfriend for several months and had left Minor alone with her
boyfriend when she went to the store.
“Mother reported strapping Minor in her car seat for timeouts; she would leave her
there for 20 minutes. She would let Minor out once she stopped screaming and when
Minor can verbally state why she had been placed in the car seat. Minor would scream
and yell when she did not get her way. Mother denied that she ever pulled Minor’s hair.
Minor would splash around in the bath and played a game on Mother’s phone that said
‘ “don’t touch me.” ’ Mother had threatened Minor that she would call the police on her
if she was not behaving. Mother stated that Minor was a ‘ “monster,” ’ and that Minor
also referred to her as a monster. Mother admitted that Minor makes her angry and that
she could not get her to do anything. She was at her ‘wits end.’
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“Mother described one day that Minor was ‘ “evil all day.” ’ After Minor fell
asleep, she told her friend that Minor was a Bitch. Mother thought there was something
wrong with Minor. Mother believed that Minor was saying these things in order to be
placed with Ms. M, who had a swimming pool and could afford to take Minor places.
Mother stated that Minor’s return to Ms. M was ‘planned and executed’ and that a ‘bad
kid was given her way; she is terrible.’
“Mother denied that Minor was dirty and claimed she had spent thousands on
clothes for Minor. The day CFS came to get Minor, Minor had just eaten chicken
nuggets and a cookie. She had food on her face, not dirt. Minor had been taught by
someone to always say that she was hungry when she was around people. Mother had
cut back on snacks for Minor ‘ “so she’s not a cow.” ’ The social worker asked Mother
what should happen moving forward. She responded, ‘ “give me my kid and fuck off.” ’
She had already done two years of ‘jumping through hoops’ for CFS.
“Minor was interviewed on April 9, 2025. She was happy living with Ms. M.
Minor had a small red mark on her hand the size of a pen mark and she stated someone
hit her in the hand with a hammer but it was not clear who had hit her. She also had a
mark on her nose but said it was from hitting her nose on the couch. It was hard to
understand Minor as she spoke fast and did not enunciate well.
“Mother and Minor had their first visit on April 9, 2025. Minor went into the
visitation room and saw Mother. She told Mother, ‘ “I don’t want you.” ’ Minor started
crying, ran out of the room and tried to leave the building. Mother believed that Minor
had been ‘coached’ into acting this way around her. The social worker attempted to
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restart the visit but Mother complained that Minor was being coached. She also
complained that the accusations against her were coming from a man with whom she
refused to have sex. She accused the social workers of colluding to take children for
money. Mother did not express that she understood Minor’s view or feelings. The visit
was ended.
“Minor was brought to speak with the social workers on April 16, 2025. She
appeared sad and wanted to be with Ms. M. The social worker mentioned a visit with
Mother and Minor responded ‘ “No!” ’ The social worker explained that she would
supervise the visit, but Minor appeared to start to crying. The social worker walked
Minor to the room for the visit with Mother. Minor immediately said, ‘ “No I don’t want
to see you mom.” ’ She tried to exit the room but the door was locked. Minor was let out
of the room and asked to see Ms. M. Minor refused to return to the room for a visit with
Mother. Mother was advised that Minor did not want to see her and Mother stated that
Minor was being manipulated. Mother was informed that Minor was being sent to
therapy to determine why she was having this reaction to Mother. Mother gave the social
worker a present for Minor and said, ‘ “here take her crap.” ’
“On April 22, 2025, a social worker attempted to supervise a visit between Minor
and Mother. Minor started crying. Mother was not there yet, and Minor calmed down by
playing with her toys. When Mother arrived, Minor again told Mother that she did not
want to see her and ran out of the visitation room. Minor tried to run out of the building.
Mother said, ‘ “now that is ridiculous.” ’ The social worker was able to hold Minor in
her arms and bring her back to the visitation room. While the social worker held her,
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Mother said, ‘ “you are being silly” ’ to Minor in a harsh tone. Minor was crying and
coughing and began to spit up. The social worker walked Minor to the trash can and
Minor threw up. The social worker terminated the visit and returned Minor to Ms. M.
Mother told the social worker that ‘ “this is what [Minor] does when she doesn’t get what
she wants. She starts to cry and throw a fit.” ’ Mother accused CFS of kidnapping
children. Mother called the social worker who escorted her out of the building ‘ “a piece
of shit.” ’
“CFS recommended reunification services for Mother. CFS was concerned that
Mother talked poorly about Minor to social workers. They were also concerned about
Mother’s substance abuse.
“Mother had three negative tests in the prior six months and had two no-show
tests. Mother strapped Minor in her car seat for 20 minutes to discipline her. CFS was
concerned that Mother had not learned from the prior services offered to her as this was
inappropriate discipline. Mother blamed CFS for the removal of Minor. She talked
negatively to Minor, which could have an emotional impact on Minor. Mother was
staying in hotels and oftentimes her boyfriend slept in the room with her and Minor.
Mother would not disclose the name of her boyfriend. CFS also recommended that visits
between Minor and Mother be suspended as at each visit Minor became emotionally
distraught and tried to run away.
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“CFS attempted to conduct a forensic interview with Minor on April 29, 2025.
She was not cooperative and the interview was ended. Minor was still placed with
Ms. M, who had taken care of Minor for almost her entire life. Minor was very attached
to Ms. M.
“At a hearing held on March 24, 2025, the juvenile court ordered a paternity test
for Father. Mother’s visits with Minor were suspended but the juvenile court did not
declare the visits were detrimental. CFS was to encourage Minor to resume visits. Minor
was referred to therapy. The matter was continued.
“An addendum report was submitted on June 20, 2025, by CFS. Minor still did
not want to visit with Mother. Mother sent a letter to Minor but it had to be edited to
remove items that were inappropriate. This included that Mother wrote that it made her
sad that Minor ‘ “left the way you did and that you throw a fit when I try to visit with
you.” ’ Mother also advised Minor that she could be nice and visit with Mother but still
stay with Ms. M. The matter was again continued.
“An additional report was filed on July 17, 2025. Paternity testing showed Father
was the father of Minor. It was recommended that Father be found a biological father
and that no reunification services be provided. Mother had been random drug testing in
May, June and July and all tests were negative. Mother agreed to participate in
reunification services including parenting classes and individual counseling. The
forensic interview of Minor was not completed as Minor got upset in the interview and
asked to be returned to Ms. M, who was present with her at the interview. The interview
did not start again as it was determined it was traumatizing Minor. On June 29, 2025,
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Minor requested a visit with Mother. A visit was held on July 10, 2025. Minor hugged
Mother at the visit and advised her that she wanted to come home to Mother. Mother was
appropriate during the visit and seemed surprised how Minor was interacting with her.
CFS recommended that the allegations in the petition be found true and that Mother be
granted reunification services. Minor should be removed from Mother’s custody as there
was clear and convincing evidence that there was a substantial danger to Minor’s
physical health and emotional well-being if Minor was returned home.
“A further addendum report was filed on August 8, 2025. A visit between Mother
and Minor occurred on July 24, 2025. During the visit, Mother told Minor that ‘bad
ladies’ took Minor away from her. Mother insisted that the ‘bad ladies’ were going to go
to jail for what they had done. Mother also changed Minor into a black shirt advising her
that she did not like the colorful clothes she was wearing. Minor was ‘restless and bored’
during the visits and asked to go home several times. Minor did ask when she could go
home to Mother. Mother continued to have negative drug tests. The matter was again
continued several times for a contested jurisdiction/disposition hearing.”
C. JURISDICTION/DISPOSITION HEARING
“The contested jurisdiction/disposition hearing was conducted on August 14,
2025. Father waived his right to be transported for the hearing. CFS submitted on its
reports and there was no objection by Mother’s counsel. No evidence was presented by
Mother.
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“Mother’s counsel argued that there was no substantial evidence of the allegations
in the petition. As for the b-1 allegation, substance abuse, there was only one party who
reported that Mother was using methamphetamine, heroin and ecstasy. This was not
sufficient to support the allegation. Mother had tested negative for controlled substances
since May 2025. As for the b-2 allegation, Minor previously was a dependent of the
court due to Mother’s substance abuse. The prior history could not be used to prove
jurisdiction especially for a parent who reunified. It could not be used to prove that
Minor fell under section 300, subdivision (b).
“Mother’s counsel also argued that the b-3 allegation should be found not true. It
alleged that Mother used inappropriate discipline toward the child, including but not
limited to, pulling her hair and pushing her. This came from a single reporting party.
Minor was interviewed and ‘did not corroborate exactly’ what RP had stated. Minor had
no marks or bruises. Minor refused to participate in a forensic interview. CFS’s reports
focused on the quality of visits and not the inappropriate discipline. Mother’s counsel
requested that the petition be dismissed and Minor be returned to Mother’s care.
“Minor’s counsel agreed with Mother that there was no current evidence of
substance abuse. Further, the b-2 allegation was connected to the b-1 allegation. Minor’s
counsel believed that the b-3 allegation was supported by the evidence and referred to the
interview of Minor in the detention report. She described Mother as being mean and
drew a picture with Mother outside her home. Minor did not want to live with Mother
because she was mean, ugly and a scary monster. Further, Minor had reported that
Mother spanked her on the bottom.
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“Counsel for CFS noted that Mother had been testing clean and that it submitted to
the juvenile court on the b-1 and b-2 allegations. The b-3 allegation was supported by
ample evidence. RP and Minor both reported that Mother had pulled Minor’s hair. The
relationship between Mother and Minor was ‘extremely problematic.’ Minor had
described Mother as mean, ugly and a scary monster. Mother also declared that Minor
was a monster. Minor had refused to attend visits with Mother. CFS submitted on the
section 300, subdivision (g), allegation.
“The juvenile court found the b-1 allegation not true and struck it from the
petition. It found that the b-2, b-3 and the g-4 allegations were true.
“As for disposition, Mother’s counsel requested family maintenance. Mother’s
counsel argued that the most recent report from CFS showed a ‘huge change’ in Minor’s
attitude toward Mother. Minor was visiting with Mother and asked to be returned to her
care. Mother was being cooperative with CFS. Minor could be returned with orders to
Mother not to use corporal punishment or strap Minor in her car seat to discipline her.
Minor’s counsel believed that removal of Minor from Mother’s care was necessary and
that reunification services be granted to Mother. Minor’s counsel was concerned about
the relationship between Minor and Mother, including Mother describing Minor as evil
all day and calling her a ‘ “bitch.” ’ Minor’s counsel was also concerned about the
unnamed boyfriend living with Mother. CFS’s counsel added that it was concerned that
four-year-old Minor would not be able to speak candidly about what was happening with
Mother if placed on family maintenance. Though there was progress with Minor wanting
to visit with Mother, it was only recent and further time was needed. CFS emphasized
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that the concern was Minor’s emotional well-being and that there was a risk of substantial
harm to her well-being if returned to Mother.
“The juvenile court found that there was not any reasonable means to ensure the
physical and emotional safety of Minor if she was returned to Mother at that time. The
juvenile court ordered reunification services for Mother, and Minor would remain
detained from Mother and Father. Visits between Mother and Minor would continue
each week and could be liberalized to unsupervised and overnight visits by CFS if
appropriate.
“Mother filed an appeal from the juvenile court’s jurisdiction and disposition
orders.”
D. PRIOR APPEAL
In J.S.-1, Mother claimed there was no substantial evidence presented to support
the jurisdiction findings under (b)(2), the prior substance abuse; (b)(3), inappropriate
discipline of Minor; and (g), Father left Minor with no provisions for her care. This court
reversed the jurisdiction finding alleged under (b)(2) but found that the (b)(3) finding
supported jurisdiction. (J.S.-1 18-27.) Mother provided no argument that the disposition
order placing Minor with Ms. M was improper and made no objection to the adopted
reunification services. (J.S.-1 27.)
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E. CASE PLANS AND FINDINGS5
Attached to the additional information provided to the court on July 17, 2025, was
the findings that were to be adopted by the juvenile court.6 In those findings, it was
included that there was a substantial danger to the physical health and safety of Minor if
she was returned home to the care of Mother. It also informed that at the end of the 12
months of reunification services, if Minor was not returned home, reunification services
may be terminated and a hearing set for removal. The case plan was also included. It
included in the danger statement that CFS was concerned about Mother inappropriately
disciplining Minor, and her substance abuse history. She was to engage in parenting
education, individual therapy, a 12-step program and substance abuse testing. The
substance abuse testing included, “The parent to submit to random drug testing. The test
results will come back NEGATIVE as an indication that the parent is no longer using
drugs. If the parent tests positive during random drug testing or fails to test; they will
attend weekly meetings and complete a certificate substance abuse program to address
issues of drug usage and learning to abstain.” It was signed by social worker Bryana
Mayne and her supervisor on July 15, 2025.
At the jurisdiction/disposition hearing held on August 14, 2025, Mother was
present along with counsel Cynthia Morales of “Juvenile Court Attorneys” (JCA). There
5 The remaining facts are drawn from clerk’s and reporter’s transcripts in this
case, and the clerk’s and reporter’s transcripts from case No. E086754.
6 We provide this additional information regarding the adoption of the case plan
at the jurisdiction/disposition hearing as it was not an issue in the appeal in case No.
E086754.
17
was no objection to the submission of all of the reports from CFS. Morales argued as to
disposition that Minor should be returned to Mother’s care under family maintenance,
which would include random drug testing. If Minor was not returned to Mother’s care,
Morales requested that no 12-step program be required and that random drug testing be
removed. Morales stated, “Mother could [be] placed on on-demand and that if the social
worker believes Mother is under the influence or any reasonable suspicion[n], she can be
asked to drug test.” The juvenile court ordered that Minor remain out of Mother’s
custody. It adopted the proposed orders and findings attached to the July 17, 2025,
report. The juvenile court advised the parties that if reunification services failed, parental
rights may be terminated. The juvenile court struck the 12-step program. It ordered,
“The Court will also order for the testing to change to on demand. However, the agency
has the authority to convert it back if and when there’s any reasonable suspicion and
evidence to support to reinstate randomized colored testing.”
CFS sent the parties the case plan it drafted based on the orders of the juvenile
court at the hearing on August 14, 2025. In the case plan, CFS stated that it was
concerned about Mother inappropriately disciplining Minor and was concerned for
Mother’s substance abuse history. It only included the reunification services of parenting
education and individual therapy. The case plan was signed by Mayne and her supervisor
on August 26, 2025, but not by Mother.
Minor’s counsel filed an “Objection/Response to Packet” (all caps. and boldface
omitted) on September 4, 2025, on the ground that the case plan was incomplete. It
should include on-demand drug testing for Mother. A hearing on the objection was
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requested for September 22, 2025. On September 17, 2025, CFS provided additional
information to the juvenile court. It informed the court that an updated case plan was
being submitted, which would include on-demand substance abuse testing for Mother.
Any suspicion that Mother was actively using illegal substances would result in a change
to random testing. The 12-step program was removed. The updated case plan was
signed by Mayne and her supervisor.
An amended case plan was attached to the additional information provided to the
court. It added “Substance Abuse Testing,” which provided “The parent to submit to on-
demand drug testing. The test results will come back NEGATIVE as an indication that
the parent is no longer using drugs. If the parent tests positive during random drug
testing or fails to test; they will attend weekly meetings and complete a certificate
substance abuse program to address issues of drug usage and learning to abstain. CFS
has authority to change to random drug testing if there is reasonable suspicion that
[Mother] is using substances.”
A hearing was held on September 22, 2025, on the objection to the case plan filed
by Minor’s counsel (September 2025 hearing). Mother was represented by Destiney
Henderson as a special appearance for JCA. Mother was not present in court. The trial
court noted Minor’s counsel’s objection to the case plan and confirmed that the minute
order from the August 14, 2025, hearing included an on-demand drug testing component
to be included in the case plan. Henderson had no comment on the change. The juvenile
court found, “I’ll have the minute order reflect that the updated case plan attached to the
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6.7 report for today’s date is Mother’s case plan going forward and Mother[ is] ordered to
participate in services.”
F. SECTION 366.21, SUBDIVISION (E), REPORT
A status review report for the six-month review hearing was filed by CFS on
February 3, 2026. There is no proof of service included in the record to show that it was
served on Mother or Mother’s counsel prior to the hearing. CFS recommended that
Minor remain in out-of-home placement with Ms. M, and family reunification services
continue to be provided to Mother.
On September 25, 2025, Mother had allegedly committed a misdemeanor violation
of Penal Code section 475, subdivision (a), “forgery relating to a check, bond, bank bill,
note or money order not exceeding $950.” The criminal court case was scheduled for a
hearing on May 9, 2026.
During the reporting period, Mother stayed in contact with CFS. Mother had
stable employment and housing as she was financially able to pay for a hotel. Mother
was considering applying for an apartment. She had a live-in boyfriend. Her employer
allowed her to visit with Minor and complete her case-plan services. Mother continued
to report that Minor was wrongfully removed from her care. She insisted it was a “plot”
between CFS and her unknown male acquaintance who wanted to get back at her because
she would not “fuck him.” Mother also reported filing an appeal and that she suspected
Minor would be returned to her care. When confronted with the fact that Minor was
removed for inappropriate discipline, Mother responded, “They can call it abuse; it’s all
bullshit.”
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As for Mother’s progress in her case plan, she had completed the ordered eight
individual therapy sessions on October 31, 2025. The therapist recommended that
Mother participate in additional sessions. Mother began parenting education on August
8, 2025. Mother missed four consecutive parenting classes and was dropped from the
program on October 15, 2025. CFS submitted a new referral for parenting classes.
Mother began the new program on November 10, 2025. Mother did not like the
instructor and thought “they were ‘idiots.’ ” Mother did report learning skills in the class
that she thought would work with Minor. Mother had to complete two more parenting
classes.
Mother completed some of her on-demand drug testing. On October 28, 2025, she
had a positive result; she was a no-show on January 5, 2026, and January 27, 2026. The
positive test on October 28, 2025, was for amphetamines. Mother stated she was a no-
show for two tests due to lack of transportation and she was unable to leave her job.
Mother had been consistent in the supervised weekly visits with Minor; it was reported
that the visits were appropriate.
CFS reported that the prognosis of returning Minor home to Mother was
“guarded.” Mother should continue reunification services. Mother had not completed
her case plan. Mother had not shown she benefited from services based on her
continuing to claim that Minor should have never been removed from her care. She still
believed that there was a conspiracy against her. Mother minimized the reasons Minor
was removed from her care. Mother had not mitigated CFS’s concerns regarding Minor’s
safety. If reunification failed, the plan was adoption by Ms. M.
21
In the findings, it was recommended that the juvenile court find by a
preponderance of the evidence that it continued to be detrimental to Minor to be placed in
Mother’s custody and that it was in Minor’s best interest to remain out of Mother’s
custody. The juvenile court should find by clear and convincing evidence that Mother
had been provided with reasonable services. Mother was actively involved in her case
plan but the extent of progress made toward alleviating or mitigating the causes
necessitating placement of Minor with her was insufficient. CFS had complied with the
case plan by making reasonable efforts to return Minor to Mother’s care. The date upon
which Minor may be placed back with Mother or another option was May 22, 2026.
A case plan was submitted that included services including parenting education,
individual therapy and substance abuse testing, which remained on-demand testing. The
harm statement was as follows: “It was reported that Mother is using illegal substances
while caring for child, verbally abusing child, unable to properly care for child, and
keeping substances near child which may cause serious harm to child.” The danger
statement was as follows: “CFS is worried that if mother continues to use substances
while caring for child it may cause serious physical harm, trauma and or death to child.”
The laboratory tests were provided.
G. SECTION 366.21, SUBDIVISION (E), HEARING
The six-month review hearing was conducted on February 17, 2026. Mother was
present along with her attorney, Henderson. The juvenile court accepted the section
366.21, subdivision (e), report into evidence without objection from Mother. The
22
juvenile court then inquired if there were any comments on behalf of Mother. Henderson
stated, “I’m submitting, your Honor.”
Counsel for CFS advised the juvenile court that it had been previously ordered that
if Mother had a positive or failed to test from an on-demand test, CFS could return to
random testing. Further, Mother also would have to complete an outpatient program.
CFS had not immediately transitioned to random testing. However, CFS informed the
juvenile court it intended to transition Mother back to random testing. If she failed to test
or had a positive test, she would have to complete an outpatient program.
Henderson responded, “I would just place an objection for random testing.
Although the report states as such, the mother is disputing her positive test of 10/28. [¶]
When the test came back positive there was no confirmation test done, and therefore the
mother is disputing that and believes it to be a false positive at this time, so she is
objecting to random testing.”
The juvenile court responded that in the 6.7 report submitted by CFS for the
September 2025 hearing, it advised it was requesting that on-demand testing be
automatically changed to random testing if there was “any suspicion that mother is
actively using substances.” The trial court noted that Mother was a no-show on two
occasions. The positive test was being disputed by Mother. The excuse for failing to
complete the on-demand tests was transportation and she was unable to leave her job.
The juvenile court ruled, “Over Mother’s counsel’s objection, the Court will note the
authority to transition mother to random drug testing and that if she fails to test or tests
positive, mother to complete an outpatient substance abuse program.”
23
The findings in the case plan were accepted by the juvenile court. Mother was
ordered to participate in the case plan. The juvenile court did add that CFS had the
authority to increase frequency, duration and delegate supervision of visits between
Mother and Minor. “Any unsupervised visits, overnights, weekends and return would be
by standing order.” A 12-month review hearing was set for May 22, 2026.
Henderson filed a notice of appeal from the February 17, 2026, hearing, on
Mother’s behalf, on February 23, 2026, regarding Mother being referred to random drug
testing. Mother filed an amended notice of appeal seeking to overturn all of the orders at
the section 366.21, subdivision (e), hearing.
DISCUSSION
Mother contends the juvenile court erred in assuming jurisdiction over Minor
because it failed to comply with the requirements of section 366.21, subdivision (e).
There was no specific finding by the juvenile court of detriment of returning Minor to
Mother’s care, and the evidence presented by CFS was insufficient to show detriment.
A. SECTION 366.21 REVIEW HEARING DETRIMENT FINDING
“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
24
shall have the burden of establishing that detriment.... 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).)
“Regardless of whether the child is returned to a parent or legal guardian, the court
shall specify the factual basis for its conclusion that the return would be detrimental or
would not be detrimental. The court also shall make appropriate findings pursuant to
subdivision (a) of Section 366; and, when relevant, shall order any additional services
reasonably believed to facilitate the return of the child to the custody of their parent or
legal guardian. The court shall also inform the parent or legal guardian that if the child
cannot be returned home by the 12-month permanency hearing, a proceeding pursuant to
Section 366.26 may be instituted.” (§ 366.21, subd. (e)(2).)
25
“Detriment can be shown many different ways. However, the code specifically
provides ‘The failure of the parent ... to participate regularly and make substantive
progress in court-ordered treatment programs shall be prima facie evidence that return
would be detrimental.’ ” (A.H. v. Superior Court (2010) 182 Cal.App.4th 1050, 1059,
italics omitted.)
“We review the juvenile court’s finding of detriment for substantial evidence by
considering whether the evidence, contradicted or uncontradicted, supports the court’s
finding.” (L.C. v. Superior Court (2024) 98 Cal.App.5th 1021, 1034.) The appealing
party “bear[s] the burden to show there was no evidence of a sufficiently substantial
nature to support those findings and orders. [Citation.] We draw all reasonable
inferences from the evidence to support the findings and orders of the juvenile court and
review the record in the light most favorable to the court’s determinations; we do not
reweigh the evidence or exercise independent judgment, but merely determine if there are
sufficient facts to support the trial court’s findings. [Citation.] Thus, we do not consider
whether there is evidence from which the juvenile court could have drawn a different
conclusion but whether there is substantial evidence to support the conclusion that the
court did draw.” (In re M.R. (2017) 8 Cal.App.5th 101, 108.)
1. WAIVER
CFS argues that Mother waived any argument that the findings and orders made
by juvenile court at the section 366.21, subdivision (e), were inadequate other than the
objection made by Mother’s counsel to the order for random drug testing. CFS contends
that Mother’s counsel submitted on the reports without objection. The only objection
26
was to the positive test on October 28, 2025, and that Mother was going to be transitioned
to random drug testing. CFS submits that Mother now arguing against the other findings
and orders made at the hearing “amounts to sandbagging the juvenile court.” We will
review the arguments by Mother both because the detriment finding is reviewed for
substantial evidence, and Mother claims she received ineffective assistance of counsel at
the section 366.21, subdivision (e), hearing.
2. MERITS
Mother first claims that the juvenile court adopting the detriment finding by CFS
was not sufficient to provide a factual basis for refusing to return Minor to her care. She
insists the record is silent as to the specific factual basis for keeping Minor and Mother
apart.
At the six-month review hearing, the juvenile court stated that it had “read and
considered” the report prepared for the six-month review hearing that was received into
evidence. The juvenile court adopted the findings and orders that had been submitted.
Minor was to remain with Ms. M. No evidence was presented by the parties at the
hearing, and the matter was submitted based on the evidence in the reports, without
objection from Mother. In the report, CFS noted Mother should be ordered to continue
reunification services because she had not completed her case plan. CFS was concerned
that Mother had not benefited from services and that she still believed that Minor was
removed from her care because of a conspiracy against her. Mother minimized the
reasons Minor was removed from her care and CFS had concerns regarding Minor’s
safety. In the findings, it was recommended that the juvenile court find by a
27
preponderance of the evidence that it continues to be detrimental to Minor to be placed in
Mother’s custody and that it was in Minor’s best interest to remain out of Mother’s
custody.
The juvenile court not only stated that it had adopted the findings in the report, but
that it had “considered” the evidence in the report. It also noted on the record it was
concerned that Mother had been a no-show for two of the drug tests. This was sufficient
to inform this court as to the basis of the factual finding as to detriment for not returning
Minor’s to Mother’s care. Such finding of detriment was supported by the evidence.
Mother’s reliance on In re Abram L. (2013) 219 Cal.App.4th 452 and In re D.P.
(2020) 44 Cal.App.5th 1058, does not change the findings here. In In re Abram L., the
court addressed the requirements under section 361.2, which are clearly not applicable
here, and the appellate court found there was “nothing in the record” to support that the
juvenile court followed the statutory requirements or was aware of the requirements
allowing for implied findings. (Abram L., at pp. 455, 460-463.) Here, it was clear that
the issue was findings at the six-month review hearing and, as discussed, ante, the
juvenile court made those findings. In In re D.P., the appellate court found that a
statement of detriment in a minute order was insufficient to support factual findings were
made by the juvenile court. (D.P., at pp. 1066-1068.) Here, as noted, the juvenile court
made adequate factual findings.
Mother appears to argue that in addition to the evidence not supporting detriment,
it also did not support the finding of the juvenile court that Mother’s progress in her case
plan was insufficient. We will address these claims together.
28
Initially, not only did Mother test positive for amphetamines, but she also had two
missed tests. A court can infer that a missed test is the equivalent of a positive test result.
(In re Natalie A. (2015) 243 Cal.App.4th 178, 186 [court inferred that missed drug tests
could be construed to show that the father’s marijuana use was more frequent than the
one positive test]; Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1343
[“Drug testing is an important component of the reunification plan, and we must consider
the missed tests to be positive tests”].) Mother’s failure to comply with court-ordered
testing was sufficient to support that Mother needed to continue participating in her
reunification services, and there was a substantial risk of harm if Minor was returned to
Mother’s custody.
Mother insists that the positive drug test on October 28, 2025, was a false positive
and that CFS should have conducted a follow-up to confirm the test. Even if we were to
assume that the test was a false positive, it is not reasonably probable that the juvenile
court would have changed its ruling.
“ ‘In general, harmless error analysis applies in juvenile dependency proceedings.’
[Citation.] Under harmless error analysis, ‘we must decide whether the error caused a
miscarriage of justice.’ [Citation.] Courts have interpreted that language as permitting
reversal only if the reviewing court finds ‘that it is reasonably probable that a result more
favorable to the appealing party would have been reached in the absence of the error.’
The same test applies in dependency matters.” (B.D. v. Superior Court (2025) 110
Cal.App.5th 1132, 1160.) Even if we were to consider that the positive test was
incorrect, the juvenile court specifically referred to the two missed tests once Mother’s
29
counsel objected to the one positive test. The order of the juvenile court at the time of the
contested jurisdiction/disposition hearing was that Mother was subject to on-demand
testing but would be moved to random testing should she test positive or miss tests.
Mother did not appeal this disposition finding in the first appeal—despite appealing the
jurisdictional finding of substance abuse—and the order of the juvenile court at the
section 366.21, subdivision (e), hearing was based on the original order at the disposition
hearing. As such, even if the juvenile court relied on the positive test, such reliance was
harmless even if we were to accept it was a false positive test.
Mother tries to argue that case law does not support that a missed test is the
equivalent of a positive test. Even if we were to accept, which we do not, that it is not
equivalent of a positive test, it still shows that Mother was not complying with her case
plan as the plan addressed missed tests.7 The failure to comply with her case plan
supported six months of continued reunification services and also showed potential
detriment to Minor if she was to be returned to the care of Mother.
Mother also argues that it was understandable that she missed these tests based on
transportation issues and difficulty leaving work. She insists that it was not likely she
7 Mother has requested that this court take judicial notice of (1) information from
staff at the Pharmatech lab that processes drug samples for CFS, (2) a 2023 paper called
“An Evaluation of the Clinical Tools Used to Monitor Illicit Methamphetamine Use
Among Chronic Pain Patients: A Cross Sectional Retrospective Study”; and (3) prior test
results from a separate juvenile court case No. J294785 dated April 10/11, 2024,
November 8/10, 2024, January 17, 2025, and January 21, 2025. We deny the request for
judicial notice as these items relate to the positive test on October 28, 2025, which we
have found would not change the juvenile court’s order, and these items were not
considered by the juvenile court.
30
would be under the influence at work. She puts the onus on the social worker to further
investigate the reasons for the missed test. None of these issues were brought to the
attention of the juvenile court and are based on pure conjecture. Further, Mother herself
indicated that her work was fully cooperating with her and allowing her to participate in
her case plan.
Further, the substance abuse testing was appropriate given that Mother never
contested the disposition in the prior appeal ordering such testing. As noted, Mother filed
an appeal from the jurisdiction/disposition hearing and never argued that the juvenile
court’s orders, which included on-demand drug testing that could be changed to random
testing, were wrongfully imposed. The adopted case plan, which included drug testing,
was based on this disposition order. As noted by CFS, this court’s affirmance of the
disposition “cemented the drug-testing” as an appropriate part of the dispositional case
plan. Mother cannot now claim that drug testing was not supported by substantial
evidence when it was part of the dispositional finding, and the juvenile court merely was
following the orders adopted at the jurisdiction/disposition hearing in relying on the
missed tests to impose random testing and also to support the detriment finding. This
evidence also supported that Mother had not made sufficient progress in her case plan as
she was missing court-ordered drug testing.
Mother makes a claim that the danger and harm statements made in the case plan
submitted for the section 366.21 hearing was not supported by the evidence and were
harmful. There simply is nothing in the record that shows the juvenile court relied on
these statements in making its detriment finding. Further, the statements provided that
31
not only was there a concern about substance abuse, but also the inappropriate discipline
of Minor. There is no showing that these statements had any impact on the findings of
the juvenile court.
Mother also claims that having to complete two additional parenting classes and a
recommendation that she continue therapy did not establish detriment. Mother complains
that based on just two parenting classes needing to be completed, and therapy classes, she
had to be separated from Minor for six months. The more appropriate resolution was
return to her case with an order of family maintenance. Initially, it is clear that Mother
had not completed her case plan. She had not completed her parenting education, and it
was recommended that she participate in additional individual counseling sessions.
Further, as explained ante, Mother continued to downplay her actions and was not
completing her required drug testing. Finally, the juvenile court ordered that CFS could
liberalize visitation and could obtain an order returning Minor to Mother’s care if there
was progress made on her case plan. The juvenile court could reasonably conclude that
Mother needed to complete her case plan, and that her failure to do so showed a risk of
harm to Minor.
Mother also claims that she was not required to admit that Minor was properly
removed from her care in order to have Minor returned to her care, and that CFS was
requiring her to admit the abuse in order to have Minor returned to her care. This is
simply not true. CFS remained concerned that Mother had no insight into the reasons
CFS was involved with her and Minor. CFS was concerned that Mother believed it was
all a plot against her. Mother also thought the therapists in the parenting education
32
program were “idiots.” CFS was not requiring an admission of guilt, and nonetheless it
ignores that the juvenile court found the allegation of inappropriate discipline true at the
jurisdiction hearing, and this court affirmed the finding on appeal. There was no
requirement that Mother admit that Minor was properly removed from her care in order
to regain custody of Minor.
The juvenile court considered the evidence presented by CFS and properly
determined that a preponderance of the evidence supported that Mother continue
engaging in reunification services and that Minor remain out of her care. At no point
does Mother recognize that the juvenile court is not only required to do what is necessary
to facilitate the reunification of the family, it also must do what is best for the child. The
juvenile court here reviewed all of the reports and the case plan, finding that in order to
protect Minor, Mother should continue reunification services and Minor should remain
out of Mother’s custody.
B. 10-DAY NOTICE REQUIREMENT OF SECTION 366.21 (C)
Mother contends that reversal is required because there is no proof of service for
the section 366.21, subdivision (e), review report that had to be served on Mother 10 days
prior to the review hearing pursuant to section 366.21, subdivision (c). Mother insists
that such error is structural error requiring reversal, and even if this court applies a
harmless-error test, reversal is required.
“Section 366.21 [subdivision (c),] provides that, at least 10 days before the section
366.21 hearing, the social worker shall file with the court, and provide the parents, legal
guardians, and minors’ counsel with, a report containing information on all of the above
33
noted factors. What are the consequences of a failure to comply with this notice
requirement? The answer to that important question depends on whether the 10-day
provision is deemed mandatory and obligatory, rather than permissive or directory.”
(Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, 549.)
The Judith P. court found that, “Although section 366.21 itself does not expressly
provide for a consequence or penalty for failing to meet its time requirements, the due
process provisions of the state and federal Constitutions do provide that actions taken in
violation of reasonable notice requirements are invalid.” (Judith P. v. Superior Court,
supra, 102 Cal.App.4th at p. 551.) The court concluded that, “[D]espite section 366.21’s
lack of a specific penalty for failure to meet the 10-day requirement, we conclude that
when the Legislature expressly provided that parents and children ‘shall’ be given at least
10-days’ notice of the status report, it did so with the knowledge that by setting a
minimum amount of notice as the standard of what was reasonable, in other words, the
constitutional due process standard, it intended that the legal result of failure to comply
with such constitutional standard and the resulting invalidity of the ruling would itself be
the consequence.” (Id. at p. 551.) “[W]e conclude that the failure to give Mother the
minimum mandated 10 days’ notice was a structural error, and that the per se reversible
error standard applies.... [¶] Practically speaking, our holding mandates that any party to
a dependency proceeding who did not receive the status report at least 10 days before a
prepermanency planning review hearing must be granted a continuance or must expressly
waive his or her right to the timely service of such report.” (Id. at p. 558.)
34
In In re James F. (2008) 42 Cal.4th 901, the California Supreme Court cautioned
against using the structural error doctrine in dependency cases as there were significant
differences between juvenile dependency proceedings and criminal proceedings. (Id. at
p. 915.) The court found that the failure to notify the father of the process and
consequences of the appointment of a guardian ad litem, which it found violated the
father’s due process rights, was subject to harmless error analysis and not structural error.
(Id. at pp. 915-916.) The court concluded, “If the outcome of a proceeding has not been
affected, denial of a right to notice and a hearing may be deemed harmless and reversal is
not required.” (Id. at p. 918.)
Recently, in In re A.D. (2011) 196 Cal.App.4th 1319 (A.D.), the court addressed
the failure to give notice of a 12-month review hearing and serve the report for the
hearing on the mother. In the report, the social services agency recommended
termination of the mother’s reunification services and a permanent plan of long-term
foster care. The mother was not given notice but was present at the hearing and
represented by counsel. (Id. at pp. 1323-1324.) The juvenile court found there was no
good cause to continue reunification services. (Id. at p. 1324.) On appeal, the mother
contended that the order should be reversed because she was not given notice of the
review hearing or served with the report. (Id. at pp. 1324-1325.)
The appellate court applied a harmless error analysis to the failure to give notice
and serve the report. (A.D., supra, 196 Cal.App.4th at p. 1327.) The A.D. court noted
prior cases had found that such failure to give notice was structural error but relied on In
re James F. to conclude that the case was “amenable to a harmless error analysis.” (A.D.,
35
at p. 1327.) It concluded, “Mother had been provided reunification services for more
than three years. During the year preceding the January 2011 hearing, she failed to
participate meaningfully in her case plan or maintain contact with the social worker.
There is no basis on which the juvenile court could have found more services would have
been in A.D.’s best interests. The permanent plan of long-term foster care will allow
A.D. and mother to stay in contact while providing stability and reassurance for the
child.” (Ibid.)
CFS concedes that there is nothing in the record to support that the status review
report was served on Mother or even her counsel 10 days prior to the hearing. CFS also
concedes that the courts have applied two standards of review when a report is not served
and argues that this court should employ a harmless error analysis. CFS argues that it
was harmless error based on Mother and Mother’s counsel being present at the review
hearing and having the ability to object to the report. Further, the 10-day notice would
not have allowed Mother to comply with her services or alter the juvenile court’s
detriment finding.
We agree with the findings in A.D., that the failure to give notice is subject to
harmless error analysis. (See In re R.F. (2021) 71 Cal.App.5th 459, 474 [agreeing
harmless error analysis applies to lack of notice].) The error here was not prejudicial.
Mother, and Mother’s counsel Henderson, were present at the section 366.21, subdivision
(e), hearing. Mother was able to voice her objection to the random drug testing and the
positive drug test. The juvenile court considered the issue, finding that even if the
positive test was erroneous, she had missed two other tests. Mother had failed to
36
complete parenting classes, she needed additional therapy and blamed CFS for losing
custody of Minor. Mother was granted six months of additional reunification services
with an opportunity to have Minor placed back in her care. Mother has failed to state
how the outcome of the proceedings would have been different had she been given a
copy of the six-month review report 10 days prior to the hearing.
Mother refers to the lack of notice at the September 2025 hearing where the case
plan was modified to reflect the orders adopted by the juvenile court at the
jurisdiction/disposition hearing. This argument is based on pure conjecture as to what
would have occurred at that hearing should Mother have been notified and present. The
hearing was merely the adoption of the case plan approved at the time of disposition, and
Mother did not raise any objection to the disposition findings in the first appeal. As such,
any argument that she should have been at the September 2025 hearing does not impact
what occurred at that proceeding or show how she was prejudiced by the failure of the
10-day notice of the six-month review report.
C. INEFFECTIVE ASSISTANCE OF COUNSEL8
Mother’s final claim is that she received ineffective assistance of counsel. She
insists Henderson provided ineffective assistance of counsel at the September 2025
hearing and six-month review hearing.
8 On May 11, 2026, Mother filed a petition for writ of habeas corpus based on
ineffective assistance of counsel in regard to findings and orders made by the juvenile
court at the six-month review hearing. Mother’s petition, considered with this appeal, is
resolved by separate order (In re M.A., case No. E088462).
37
“A parent in a dependency proceeding is entitled to competent counsel and to
judicial review of claims of ineffective assistance of counsel. [Citation.] A parent
seeking to establish ineffective assistance of counsel must show both that counsel failed
to act in a manner to be expected of a reasonably competent attorney practicing in the
field of juvenile dependency law, and that it is ‘ “reasonably probable that a result more
favorable to the appealing party would have been reached in the absence of the error.” ’
[Citation.] When a parent seeks to assert ineffective assistance of counsel on direct
appeal (as opposed to by writ of habeas corpus), appellate courts further limit their
review to consider only those claims ‘ “where ‘there simply could be no satisfactory
explanation’ for trial counsel’s action or inaction.” ’ ” (In re M.F. (2022) 74 Cal.App.5th
86, 108-109.)
Mother first contends that Henderson provided ineffective assistance of counsel at
the September 2025 hearing by failing to raise any objection to the updated case plan.
There could be no justification for the failure to object to the drug testing. The updated
case plan was actually a modification in order to properly reflect the juvenile court’s
order made at the disposition hearing. The only reason the matter was set for hearing was
that Minor’s counsel objected to the updated case plan failing to conform to the juvenile
court’s order regarding drug testing. Henderson certainly could have concluded any
objection was futile as the case plan reflected the disposition order. There were no
grounds to object.
Further, as previously noted, Mother never raised the disposition issue on appeal,
and the time to appeal the finding has long since passed. Mother claims that by not
38
objecting to the drug testing, this waived the issue and there could be no reason to fail to
object given that it was a significant burden on her. Again, the case plan adopted simply
memorialized the findings at the disposition hearing, which were not disputed by Mother.
Mother did not appeal the disposition order, and drug testing could appropriately be
included even though the b-1 allegation of current substance abuse was found not true
based on her history of substance abuse. (See In re Baby Boy H. (1998) 63 Cal.App.4th
470, 474 [“The juvenile court has broad discretion to determine what would best serve
and protect the child’s interests and to fashion a dispositional order accordingly”].)
Mother cannot show ineffective assistance of counsel at the September 2025 hearing.
Mother also claims Henderson was ineffective at the section 366.21, subdivision
(e), hearing. Mother claims that Henderson objected to the October 28, 2025, positive
drug test result but such objection was “unsupported by evidence.” She insists that had
“counsel made an effort to introduce evidence” in support of the objection, including
Mother’s testimony, or asked for a continuance to investigate, the results of the
proceedings would have been different. She insists that given her progress in her case
plan, the juvenile court “would have dismissed the case as no longer necessary to protect”
Minor.
Mother’s claim of prejudice lacks merit. As noted ante, the juvenile court not only
relied on the positive test, but also the missed tests. Mother provides no argument as to
what evidence should have been introduced to contest these facts. Further, it still
remained that Mother had not completed her parenting education and that it was
recommended she receive additional therapy. She also had a history of substance abuse,
39
and despite the substance abuse being found not true, the juvenile court could reasonably
conclude additional testing was still an appropriate reunification service. (In re Baby Boy
H., supra, 63 Cal.App.4th at p 474.) Mother has not shown ineffective assistance of
counsel at the section 366.21 hearing.
DISPOSITION
The juvenile court’s orders at the section 366.21, subdivision (e), hearing are
affirmed.
CERTIFIED FOR PARTIAL PUBLICATION
MILLER
J.
We concur:
RAMIREZ
P. J.
CODRINGTON
J.
40
