Filed 12/29/21 In re S.S. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re S.S., a Person Coming Under the 

Juvenile Court Law.

ORANGE COUNTY SOCIAL 

SERVICES AGENCY,

 Plaintiff and Respondent,

v.

M.S,

 Defendant and Appellant.

 G060507

 (Super. Ct. No. 20DP0904)

 O P I N I O N

Appeal from an order of the Superior Court of Orange County, Mary 

Kreber Varipapa, Judge. Affirmed.

William D. Caldwell, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Leon J. Page, County Counsel, and Karen L. Christensen and Jeannie Su, 

Deputy County Counsel, for Plaintiff and Respondent.
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Defendant M.S. (mother) appeals from the juvenile court’s order removing 

her child, S.S., from her custody. Mother points to her acknowledged sobriety, stability, 

and compliance with the court’s order and case plan. However, substantial evidence 

supports the court’s finding that S.S. was at substantial risk of harm in mother’s custody 

because of her relationship with C.S. (father), who has unresolved substance abuse issues. 

Further, the court did not abuse its discretion in approving the Social Services Agency’s 

(the agency) case plan, despite mother’s progress. Accordingly, we affirm.

FACTUAL AND PROCEDURAL HISTORY

S.S. was born to mother in July 2020. Mother and S.S. both tested positive 

for amphetamines while in the hospital, and mother admitted using methamphetamine. 

Mother lived with father, in an environment mother admitted involved “excessive 

substance abuse.” Mother had a previous child with another man, C.S., to whom she was 

still married. C.S. has sole custody of that child as a result of a prior dependency case in

Riverside County, which arose from mother’s methamphetamine abuse. 

The agency sought and received a protective custody warrant within days of 

S.S.’s birth. S.S. was placed with his maternal aunt. In the months that followed, the 

agency interviewed mother and father. Mother stated she wanted to share custody of S.S. 

with father, whom she called her fiancé. Mother indicated she had gotten sober and 

would stay sober and abide by the court’s orders. 

Mother consistently tested negative, visited S.S. regularly, and participated 

in therapy and, for a time, a Narcotics Anonymous program. However, father’s presence 

at the visits with S.S. often interfered with the visits, as mother and father frequently 

argued, and the caregiver believed father sometimes attended visits while under the 

influence. Father also failed to participate in drug testing. 

In May of 2021, mother was permitted to engage in unsupervised visits 

with S.S., outside the presence of father. At around the same time, mother began 

inquiring about filing a restraining order against father, and indicated to the social 
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workers assigned to the case that she no longer had contact with him. The caregiver, 

however, reported that she believed mother was allowing unauthorized contact between 

father and S.S. during the unsupervised visits, citing the fact that father’s van was parked 

near mother’s home. Mother reported that father did not reside with her, and had lost the 

keys to his van, which his relatives would be moving soon. 

After another unsupervised visit, the caregiver reported she saw father in 

front of mother’s residence, and that father recognized her and tried to hide. The 

caregiver also alleged father’s van was still present. When the social workers made an 

unannounced visit to mother’s home to investigate, the home was empty. The social 

workers called mother and asked about the caregiver’s allegations. Mother told the social 

workers she did not know father was there, and that the allegations were untrue and 

motivated by the caregiver’s desire to interfere with her reunification with S.S. The 

social workers also asked for contact information for mother’s roommates to verify her 

statements, but mother declined, stating she wanted their privacy respected. Mother 

further told the social workers she did not want father in S.S.’s life and did not want to 

share custody until she saw a change in his behavior. 

At the June 25, 2021 dispositional hearing, one of the social workers 

testified an emergency protective order had been obtained by father against mother, 

arising from an incident on May 25, 2021. The order indicated that mother and father 

were at father’s residence, and mother slapped father three to four times. It also indicated 

that mother and father were in a dating relationship. The social worker testified this was 

cause for concern because the facts in the order contradicted mother’s statements to the 

agency about distancing herself from father. 

The agency took the position that custody should not be given back to 

mother because of her relationship with father, who appeared to be continuing to use 

drugs. Counsel for father and mother argued the agency had not met its burden of 

showing by clear and convincing evidence that S.S. should be removed, and sought 
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placement with mother. The court concluded the recency of the father’s contacts with 

mother supported a finding that vesting custody of S.S. with mother would be detrimental 

to S.S. The court approved the agency’s case plan (which called for reunification 

services to be provided to mother), and set review hearings for September and December. 

Mother timely appealed. 

DISCUSSION

Mother argues the juvenile court erred by removing S.S. from her custody. 

We review the juvenile court’s dispositional findings for substantial evidence. (In re 

Ma.V. (2021) 64 Cal.App.5th 11, 22.) The relevant standard is provided by Welfare and 

Institutions Code section 361, subdivision (c)(1): “A dependent child shall not be taken 

from the physical custody of his or her parents . . . unless the juvenile court finds clear 

and convincing evidence of any of the following circumstances . . . [¶] (1) There is or 

would be a substantial danger to the physical health, safety, protection, or physical or 

emotional well-being of the minor if the minor were returned home, and there are no 

reasonable means by which the minor’s physical health can be protected without 

removing the minor from the minor’s parent’s . . . physical custody.”

As a preliminary matter, we are mindful of our published observation of “a 

recent, and troubling trend, of what we perceive as mothers being punished as victims of 

domestic violence,” in the Orange County juvenile courts. (In re Ma.V., supra,

64 Cal.App.5th at p. 25.) In fact, at the dispositional hearing, which took place shortly 

after our publication of In re Ma.V., counsel in this case made that very argument to the 

juvenile court. 

However, the facts of this case do not fit into that paradigm. Here, at least 

as far as the May 25, 2021 incident is concerned, mother appears to have been the 

aggressor and not the victim. More importantly, the incident demonstrates mother had 

not, in fact, distanced herself from father as late as one month before the dispositional 

hearing. It also lends credibility to the caregiver’s allegations that father remained 
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involved in mother’s life, even after the incident. These facts contrast sharply with those 

of In re Ma.V., in which it was undisputed the mother had ended her relationship with the 

abuser and had no contact with him for 10 months prior to the dispositional hearing. (In 

re Ma.V., supra, 64 Cal.App.5th at p. 22.) The caregiver’s allegations, along with the 

domestic violence incident, constitute substantial evidence to support the juvenile court’s 

finding by clear and convincing evidence of a continuing danger to the child created by 

mother’s relationship with father.

Mother contends the juvenile court could have assuaged its concerns 

regarding father’s presence by issuing an order protecting mother and S.S. from father. 

Such an order, mother argues, would have been a “reasonable means by which [S.S.’s] 

physical health [could] be protected without removing [S.S.] from [mother’s] . . . physical 

custody,” as described in Welfare and Institution Code section 361, subdivision (c)(1). 

However, substantial evidence supports the court’s contrary conclusion. The danger to 

S.S.’s well-being arose from a continued consensual relationship between father and 

mother, in the course of which mother would allow father unauthorized visitation with 

S.S., despite father’s ongoing drug issues. A restraining order would also do nothing to 

protect S.S. from father if mother allowed father to visit and a fight broke out.

Mother also argues the juvenile court erred by failing to take into account 

mother’s progress when approving the agency’s case plan. Mother points to her 

participation in therapy, Narcotics Anonymous, and drug testing, her completion of a 

parenting class, and the social worker’s testimony that he was no longer concerned with 

her sobriety or mental health. Mother complains that the agency’s case plan required her 

to take many of these steps, and the court’s order approving the case plan does not reflect 

her completion of those steps, potentially requiring her to complete them again. The 

agency argues the issue was forfeited by mother’s failure to object to specific 

components of the case plan in the court, but also concedes that the inclusion of certain 

items in the case plan “would not necessarily require Mother to redo elements she had 
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completed if she remain[s] sober and mentally stable, e.g., another substance abuse 

treatment program.”

We construe the juvenile court’s approval of the case plan consistently with 

the agency’s concession. We note the case plan itself, which was prepared in August 

2020, sets projected completion dates for various requirements at dates long before the 

time the court approved the plan.1 We do not interpret it as requiring mother to restart 

drug testing, newly reengage with Narcotics Anonymous, complete a second parenting 

class, or complete another drug treatment program. Nor, for that matter, do we interpret 

the court’s approval of the case plan as returning mother to the low level of supervised 

visitation authorized by the case plan, given the court’s specific orders issued in the 

interim allowing more liberal visitation. Instead, we conclude the court’s order 

approving the case plan simply formalized the existing status quo.

DISPOSITION

The juvenile court’s order is affirmed.

ZELON, J.*

WE CONCUR:

BEDSWORTH, ACTING P. J.

GOETHALS, J.

*Retired Justice of the Court of Appeal, Second Appellate District, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.

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For example, the case plan suggests mother should complete her parenting class by 

January 25, 2021, even though the case plan was not approved by the court until June.