1

Filed 10/29/15

CERTIFIED FOR PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

In re AURORA P. et al., Persons 

Coming Under the Juvenile Court Law.

ALAMEDA COUNTY SOCIAL 

SERVICES AGENCY,

Plaintiff and Respondent,

v.

AURORA P., a Minor, et al.,

Appellants.

 A143211

 (Alameda County

 Super. Ct. Nos. HJ10015424, 

 HJ10015425, HJ10015426, 

 HJ10015427, HJ10015428)

Welfare and Institutions Code section 3641governs status review hearings for 

dependent juveniles who remain in the physical custody of their parents or guardians. 

Subdivision (c) of that section (section 364(c)) provides that the juvenile court “shall 

terminate its jurisdiction unless the social worker or his or her department establishes by 

a preponderance of evidence that the conditions still exist which would justify initial 

assumption of jurisdiction under Section 300, or that those conditions are likely to exist if 

supervision is withdrawn.” Thus, when the social services agency opposes termination of 

dependency jurisdiction, it clearly bears the burden of proof to show the existence of the 

 

*

Pursuant to California Rules of Court, rule 8.1110(b), part IV of this opinion is not 

certified for publication.

1 All further undesignated statutory references are to the Welfare and Institutions Code.
2

conditions section 364(c) specifies must be proven to support retention of dependency 

jurisdiction.

In this case, however, the social services agency took the opposite position and 

recommended dependency jurisdiction be terminated. Counsel for the dependent 

children (Minors) opposed the recommendation. After the juvenile court terminated 

jurisdiction and dismissed the dependency, Minors appealed.

Minors pointed out that no published case has decided what standard of review 

should apply where the social services agency recommends termination of dependency 

jurisdiction and the dependent child or children oppose the recommendation. Faced with 

this dearth of authority, we asked the parties for supplemental briefing on the issue. As 

we explain, we agree with the parties that the standard of review depends upon which 

party bore the burden of proof in the juvenile court. We hold that because Minors were 

the parties opposing termination of dependency jurisdiction, they bore the burden of 

establishing by a preponderance of the evidence that conditions justifying initial 

assumption of dependency jurisdiction either still existed or were likely to exist if 

supervision were withdrawn. Since Minors bore the burden of proof below and failed to 

meet it, we apply well-established rules of appellate review and conclude that to prevail 

on appeal, Minors must show the evidence compels a finding in their favor as a matter of 

law.

In the published portion of our opinion, we first address the questions of allocation 

of the burden of proof and standard of review. We then also hold the juvenile court is not 

required to make an express finding on a parent’s participation in his or her court ordered 

treatment plan. In the unpublished portion of our opinion, we hold Minors have failed to 

show the juvenile court did not consider their best interests.
3

FACTUAL AND PROCEDURAL BACKGROUND2

T.M. (Mother) has three daughters and two sons (collectively Minors) who are the 

subjects of this dependency proceeding, R.P. is the father of the two oldest siblings, and 

E.L. is the father of the three youngest. 

Petition, Detention, and Disposition

On August 24, 2010, the Alameda County Social Services Agency (the Agency) 

filed a petition under section 300, subdivisions (b) and (g) alleging Mother had fractured 

her son’s wrist and that E.L. had hit, slapped, pinched, and punched one of Mother’s 

daughters as a form of discipline. The petition further alleged E.L. had sexually abused 

another daughter and spanked her in such a way that marks resulted. The Agency filed 

an amended petition on September 7, 2010, adding counts under subdivisions (g) and (j) 

of section 300. At the detention hearing on August 26, 2010, the juvenile court found 

removal was necessary and temporarily placed Minors in the Agency’s care. 

The Agency’s jurisdiction/disposition report stated Minors were placed together in 

Sacramento, while the parents resided in Livermore. The report recommended family 

reunification services be provided to Minors, Mother, and E.L. but not to R.P., since his 

whereabouts were unknown. The parents agreed with the recommendation and were 

willing to engage in services. At the conclusion of the jurisdiction and disposition 

hearing on September 24, 2010, the court found the amended petition true and adopted 

the Agency’s recommendations. 

Out-of-Home Status Review Hearings

Between April 2011 and March 2012, the juvenile court conducted four status 

review hearings. At the six-month status review hearing, Minors were placed in three 

different foster homes, but the Agency stated there was a substantial probability they 

 

2 Because the issues on appeal are narrow in scope, we have abbreviated our statement of 

the facts of this very lengthy dependency proceeding. (See In re Holly B. (2009) 172 

Cal.App.4th 1261, 1263.) Additional facts relevant to particular issues raised are 

included in the discussion section of this opinion.
4

would be returned to Mother because she had made significant progress resolving the 

problems that led to removal. 

During the entire status review period, Mother received reunification services, and 

the Agency reported she was actively engaged, was in compliance with her case plan, and 

was making positive strides towards reunification with her children.3 For the 12-month 

status review hearing, it recommended that Mother’s oldest and youngest daughters be 

returned home with family maintenance services and that the family be gradually 

reunified. The juvenile court agreed, and as Mother continued to progress over the next 

several months, the court returned the remaining children to her custody with family 

maintenance services. 

Family Maintenance Review Hearings

The juvenile court conducted family maintenance review hearings in July 2012, in 

January, June, and December 2013, and in May 2014. A final review hearing was held in 

July and August 2014. 

In July 2012, the Agency reported Mother was unemployed and living in 

transitional housing while providing full-time care to her children. Although Mother was 

actively engaged in services and the family was participating in family therapy, Mother 

appeared overwhelmed by caring for five children and dealing with the family’s service 

providers. During this reporting period, Mother was in compliance with her service 

objectives but was not in compliance with her responsibility to participate in individual 

therapy. Mother’s eldest daughter appeared to be suffering from mental and emotional 

health issues due to trauma she had experienced in her mother’s care. The Agency’s 

assessment was that while the family was participating in services, it was unstable. It 

recommended family maintenance services be continued, and the juvenile court adopted 

that recommendation. 

When the Agency filed its next report in January 2013, it found Mother was 

engaging in services but often felt overwhelmed. While Mother was practicing new 

 

3 At the Agency’s recommendation, the juvenile court terminated reunification services 

for E.L. at the 12-month status review hearing. 
5

techniques learned from providers, the family continued to struggle. Mother was referred 

to individual therapy, but the services were terminated because she was unable to keep 

her appointments. As her therapist explained, however, Mother failed to keep 

appointments because she was dealing with Minors’ medical emergencies and other 

appointment conflicts. 

Mother participated with her family in services provided by the Early Intervention 

Services (EIS) Department of Oakland Children’s Hospital, which reported Mother was 

“extremely engaged in treatment on behalf of her children,” actively sought out 

additional support, and was open to interventions and feedback. The EIS team was 

concerned about Mother’s capability to parent five emotionally challenged children as 

she struggled with her own mental health needs. The caseworker noted the home 

appeared to be in chaos and there were reports of accidental injuries to the children. 

Mother was nevertheless in compliance with her service objectives and client 

responsibilities. She was consistently engaged in her case plan and was meeting her 

children’s needs. Despite her minimal progress in treatment, Mother was committed to 

the process. The four eldest children were participating in individual therapy in part to 

deal with trauma-related problems, and the youngest, who had not expressed any mental 

health concerns, was engaged in family therapy. After considering the report, the 

juvenile court accepted the Agency’s recommendations, retained dependency jurisdiction, 

and continued family maintenance services. 

During the reporting period preceding the June 2013 review hearing, the Agency 

received two referrals for child abuse and neglect. The first report was inconclusive and 

the second was “evaluated out[.]”

4

 Mother participated in weekly therapy and completed 

a psychological assessment. She was participating with multiple service providers on a 

daily basis, collaborating with each child’s therapist, and participating in dyadic therapy 

with each of the Minors. Mother was ensuring all her children’s mental health and 

 

4

The social worker testified that the term “evaluated out” means the child protective 

services screener did not find sufficient evidence of physical abuse or child abuse and 

neglect to assign the referral to an investigation. 
6

educational needs were met. She continued to be in compliance with her service 

objectives and client responsibilities and was expected to get a housing voucher from 

Oakland Housing Authority. The four oldest children continued to receive individual 

therapy, and the youngest was engaged in dyadic therapy with Mother. The Agency 

recommended Minors remain with Mother and that dependency and family maintenance 

services continue, recommendations the juvenile court accepted.

The Agency received two new referrals for child abuse and neglect before the 

December 2013 status review hearing. In October 2013, there was an allegation the 

youngest daughter was a victim of sexual abuse at the hands of Mother’s nondependent 

17-year-old son. The referral was evaluated out. The second referral alleged abuse by 

Mother and was also evaluated out. One of the Minors had a black eye and cuts on her 

legs. Mother stated the black eye occurred when the child was playing with her siblings 

outside, and the cuts when the glass shower door broke while she was in the bathroom. 

During the reporting period, Mother obtained permanent housing through Oakland 

Housing Authority and moved into a three bedroom apartment. She continued to 

participate in individual therapy and was compliant with her appointments, service 

objectives, and client responsibilities set forth in her case plan. Minors continued 

individual therapy to deal with their emotional problems. The two oldest children were 

assigned a court-appointed special advocate (CASA). The Agency recommended Minors 

remain with Mother and that dependency and family maintenance services continue for 

another six months. The juvenile court again accepted the Agency’s recommendations. 

For the May 2014 status review hearing, the Agency recommended Minors stay in 

Mother’s home and that dependency be dismissed. It also recommended Mother receive 

three months of informal family maintenance services and then transition to Family 

Reclaim services.5 Mother agreed with these recommendations. 

 

5

Family Reclaim is a community-based organization that provides 18 months of 

extended case management, support, and referral services for families that no longer 

require formal court supervision. 
7

The Agency received a referral during the reporting period alleging that Mother’s 

older son was a victim of sexual abuse but the referral was found inconclusive. Mother 

cooperated with the Agency in creating a safety plan that included not allowing her 

nondependent son into her home or around Minors. Another referral alleging physical 

abuse by Mother was determined to be inconclusive. The assigned worker assessed the 

injuries that had occurred and determined that they were “not the result of neglect and/or 

abuse perpetrated by the [M]other.” 

Mother continued living in her three bedroom apartment, subsidized by the 

Oakland Housing Authority. She remained unemployed and received financial assistance 

from various state programs. Her participation in individual therapy was inconsistent 

because of her many meetings and appointments for Minors, and because her therapist 

did not have a flexible schedule. The therapist reported Mother worked very hard dealing 

with her abuse issues and PTSD, took her therapy sessions seriously, and continued to 

move forward. Even though Mother was not always able to make it to therapy weekly, 

she was ready to address her concerns and committed to therapy. Mother received a 

referral for a new therapist and first met with her in late April. 

The Agency’s overall assessment was that Mother had successfully reunified with 

her five children and engaged in her case plan activities. Mother attempted to meet her 

mental health needs without neglecting Minors’ needs and managed to provide a 

permanent and stable home, food, and clothing for the children. Despite her limited 

means, Mother “adequately manage[d] her resources each month.” While the service 

providers were concerned about the sexual abuse allegations, accidental injuries, and 

Mother’s ability to parent five children, they agreed she was meeting Minors’ needs as 

best she could and had been effective in collaborating with the their therapists and 

advocating for their educational rights. The service providers were unable to identify any 

additional service needs for the family. 

On May 27, 2014, the juvenile court set the matter for a contested review hearing 

to begin on July 14. The Agency submitted a memorandum report for the hearing in 

which it continued to recommend Minors remain with Mother, that dependency be 
8

dismissed, and that the family participate in three months of informal family maintenance 

services. Mother was still active in her case plan activities, including individual therapy. 

Her therapist reported she was very persistent and eager with her treatment and stayed in 

good contact regarding scheduling appointments. The therapist observed Mother was 

using techniques she learned in individual therapy. Additionally, Mother had engaged in 

case management services with Family Reclaim, which would continue on a weekly 

basis. Furthermore, Mother sought, on her own initiative, therapeutic services from the 

organization Family Paths to support her mental health needs. Lastly, Mother showed 

her ability to protect Minors from sexual abuse and to meet their medical, physical, 

mental health, and educational needs. The Agency did not identify any immediate safety 

concerns that would require continued dependency and court supervision. 

Final Family Maintenance Hearing

At the hearing, the juvenile court admitted the Agency’s reports into evidence. 

Two social workers assigned to the family’s case testified Mother was in compliance 

with her case plan. Both social workers were of the opinion that conditions justifying 

initial assumption of dependency jurisdiction did not exist and were not likely to exist if 

supervision were withdrawn. 

The family maintenance worker was questioned about incidents in which two of 

the Minors had sustained injuries and allegations that Mother’s youngest daughter and 

older son had been sexually abused.6 The worker explained a recent allegation of 

physical abuse had been investigated and found inconclusive. Mother herself reported 

another instance in which her youngest daughter was hit by a rock thrown by teenagers 

living in the family’s apartment complex. This incident was not reported as abuse. 

Mother also reported an incident in which her youngest daughter was injured when a 

glass shower door shattered as she was bathing her daughter. There was no evidence 

Mother had intentionally shattered the shower door. The sexual abuse referrals were 

found inconclusive. Mother cooperated with the Agency in creating a safety plan to 

 

6 Both sexual abuse referrals involved allegations of abuse committed by Mother’s 

nondependent son who was visiting from Southern California. 
9

prevent any further possible sexual abuse, and the social worker testified Mother had 

abided by that plan. 

The supervising social worker testified about the risk assessment the Agency had 

completed for the family. She acknowledged the assessment rated the family’s risks for 

abuse and neglect as very high. She explained, however, that the risk level was high 

based upon the family’s history with child protective services and Mother’s own 

experience of child abuse and neglect, as well as her mental health problems, previous 

substance abuse, and criminal history. According to the supervising social worker, the 

family will always have a high risk score based on that history alone. The worker 

admitted Mother’s home could be disorganized, but she said the home was still safe and 

the Agency had no outstanding safety concerns. 

The CASA for Mother’s older son testified to his concerns that the boy was not 

receiving adequate professional services. The CASA’s supervisor instructed him, 

however, to focus on the child rather than on the professional service providers. The 

CASA considered Mother’s home unsafe because clothing, toys, and household items 

were on the floor. In contrast, the CASA for Mother’s oldest daughter reported that 

Mother’s home was safe, comfortable, and healthy. 

Minors called the therapist for Mother’s younger son as an expert witness in child 

abuse and trauma. She testified she had made three calls to the child abuse hotline since 

becoming the boy’s therapist. One of the calls concerned an instance in which the boy 

had run away from Mother and “outside intervention [was] needed to bring him back.” 

When cross-examined about that incident, however, the therapist admitted she was 

unaware that the police had decided not to contact child protective services after doing a 

health and safety check. The therapist was also concerned for the boy’s safety because of 

injuries he had suffered, but she conceded she had no evidence Mother caused the 

injuries and was unaware of the explanations his siblings had provided for how they 

occurred. She also admitted she based her safety concerns on referrals the Agency had 

found inconclusive. The therapist expressed her opinion that “the family would benefit 

from continued monitoring and support.” 
10

The Juvenile Court’s Ruling

On August 22, 2014, after a contested hearing spanning multiple hearing dates, the 

juvenile court dismissed the case and adopted the Agency’s recommendations. In its oral 

ruling, the juvenile court quoted the language of section 364(c). It stated, “given all the 

evidence that has been presented here, testimony, and the reports that have been 

submitted by the Agency, the Court does not believe that it’s been established by a 

preponderance of the evidence that conditions still exist or are likely to exist.” While the 

court noted “there are some concerns . . . that’s not the standard[.]” The minute order 

states, “Conditions do not exist which would justify initial assumption of jurisdiction 

under section 300 and are not likely to exist if supervision is withdrawn.” The juvenile 

court dismissed the dependency and ordered informal family maintenance. 

Minors filed a timely appeal. 

DISCUSSION

Minors’ principal contention is that the juvenile court’s order terminating 

dependency jurisdiction is unsupported by substantial evidence. They also argue the 

lower court erred by failing: (1) “to make a threshold determination of whether . . . 

[M]other had failed to participate regularly” in her court ordered treatment program and 

(2) to consider whether termination of dependency jurisdiction was in their best interests. 

Minors’ challenge to the sufficiency of the evidence supporting the juvenile 

court’s order raises a novel question regarding which party bore the burden of proof at 

the section 364 review hearing. Since the allocation of the burden of proof in the lower 

court determines our standard of appellate review, we will turn to that issue after 

describing the statutory scheme governing review hearings for dependent children in inhome placements. We then address Minors’ other contentions.7

 

7 On June 11, 2015, we granted Advokids, a nonprofit child advocacy organization, leave 

to file a brief amicus curiae. Advokids asks us to harmonize sections 364 and 390 and 

“to interpret section 364 as requiring the juvenile court to make a finding as to whether 

the parent has regularly participated in the court-ordered service plan and whether 

dismissal is in the best interests of the child.” The Agency urges us not to address this 
11

I. Status Review Hearings for Dependent Minors Who Remain in Parental Custody

After the juvenile court finds a child is a person described in section 300, it must 

“hear evidence on the question of the proper disposition to be made of the child.” (§ 358, 

subd. (a).) In appropriate circumstances, the court may declare the child a dependent, and 

“without removing the child from his or her home, order family maintenance services to 

ameliorate the conditions that made the child subject to the court’s jurisdiction.”8 

(Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 302 (Bridget A.).) Once a 

child has been declared a dependent, the juvenile court must review the status of the child 

every six months. (Id. at p. 303; see Cal. Rules of Court, rule 5.710(a).) “The applicable 

standards at the six-month review hearing differ depending on the child’s placement.” 

(In re Maya L. (2014) 232 Cal.App.4th 81, 98.) Section 364 provides the standard when 

“a child under the supervision of the juvenile court . . . is not removed from the physical 

custody of his or her parent or guardian[.]”

9

 (§ 364, subd. (a); see In re Pedro Z., Jr.

 

issue, noting that section 390 was not raised either below or in the parties’ appellate 

briefs. 

Ordinarily, an amicus must take the case as it finds it and accept the issues 

tendered by the parties to the appeal. (Berg v. Traylor (2007) 148 Cal.App.4th 809, 823, 

fn. 5.) As a general rule, California courts will not consider issues raised for the first time 

by an amicus. (Mercury Casualty Co. v. Hertz Corp. (1997) 59 Cal.App.4th 414, 425.) 

As Advokids itself admits, neither party to this appeal discusses section 390. We 

therefore follow the general rule and decline to exercise our discretion to consider the 

issue.

8

Family maintenance services are “activities designed to provide in-home protective 

services to prevent or remedy neglect, abuse, or exploitation, for the purposes of 

preventing separation of children from their families.” (§ 16501, subd. (g).) They “may 

be extended in periods of six-month increments if it can be shown that the objectives of 

the service plan can be achieved within the extended time periods . . . .” (§ 16506.) 

Unlike family reunification services, nothing in the Welfare and Institutions Code or the 

California Rules of Court limits the time period for court supervision and services for 

dependent minors who remain at home, so family maintenance services may be provided 

until the dependent minors reach the age of majority. (In re Joel T. (1999) 70 

Cal.App.4th 263, 267-268.)

9

Like most California appellate courts, we have held section 364 also applies in cases 

such as this, where children have been removed from the physical custody of a parent but 

later returned. (In re Shannon M. (2013) 221 Cal.App.4th 282, 290 (Shannon M.) [§ 364 
12

(2010) 190 Cal.App.4th 12, 20 [“when the child remains in a parent’s home, the court 

reviews the status of the case every six months under section 364”].)

At the section 364 review hearing, “the court is not concerned with reunification, 

but in determining ‘whether the dependency should be terminated or whether further 

supervision is necessary.’ [Citations.]” (In re Pedro Z., Jr., supra, 190 Cal.App.4th at 

p. 20; see In re Maya L., supra, 232 Cal.App.4th at p. 98.) The juvenile court makes this 

determination “based on the totality of the evidence before it.” (Seiser & Kumli, Cal. 

Juvenile Courts Practice and Procedure (2015) § 2.150[3], at p. 2.505.) Part of the 

evidence the juvenile court must consider is the supplemental report of the social worker 

(Cal. Rules of Court, rule 5.706(d)(1)), who must “make a recommendation regarding the 

necessity of continued supervision.” (§ 364, subd. (b).)

Section 364(c) establishes a “statutory presumption in favor of terminating 

jurisdiction and returning the children to the parents’ care without court supervision.” 

(Shannon M., supra, 221 Cal.App.4th at p. 290.) Under the statute, the juvenile court 

“shall terminate its jurisdiction unless the social worker or his or her department 

establishes by a preponderance of evidence that the conditions still exist which would 

justify initial assumption of jurisdiction under Section 300, or that those conditions are 

likely to exist if supervision is withdrawn.” (§ 364(c), italics added.) While the statute 

speaks in terms of the social worker or department establishing the basis for the 

continuation of dependency jurisdiction, the first sentence of section 364(c) makes clear 

that the parent, the guardian, or the child may offer evidence on that question. (See In re 

J.F. (2014) 228 Cal.App.4th 202, 210-211 (J.F.).) Furthermore, even if the social worker 

 

applies when children either “were never removed or . . . were removed and returned 

home”]; accord, In re Gabriel L. (2009) 172 Cal.App.4th 644, 650; Bridget A., supra, 148 

Cal.App.4th at pp. 313-316; In re N.S. (2002) 97 Cal.App.4th 167, 171-172.) Some 

California Courts of Appeal have interpreted the scope of section 364 narrowly, holding 

it applies only when a child has never been removed from the physical custody of the 

parent or guardian. (See In re Janee W. (2006) 140 Cal.App.4th 1444, 1450-1451; In re 

Sarah M. (1991) 233 Cal.App.3d 1486, 1493-1494, disapproved on other grounds in In re 

Chantal S. (1996) 13 Cal.4th 196, 204.) We need not explore this issue further, however, 

because in this case the parties agree section 364 supplies the governing standard.
13

or department recommends termination of dependency jurisdiction, the juvenile court is 

not bound by that recommendation and may retain jurisdiction “if there is a 

preponderance of evidence that the conditions are such to justify that retention.” (Id. at 

p. 210; In re D.B. (2015) 239 Cal.App.4th 1073, 1086 [social service agency’s 

recommendation is not controlling].) 

In short, under section 364(c), the juvenile court must terminate dependency 

jurisdiction unless either the parent, the guardian, the child, or the social services agency 

establishes by a preponderance of the evidence that the conditions justifying assumption 

of jurisdiction exist or will exist if supervision is withdrawn. Thus, in the absence of a 

contrary showing at the review hearing, termination of dependency jurisdiction will be 

the “default result.” (Conservatorship of Hume (2006) 140 Cal.App.4th 1385, 1392 

(Hume).)

II. Standard of Review

A number of reported decisions have reviewed orders made pursuant to 

section 364 for substantial evidence. (E.g., In re D.B., supra, 239 Cal.App.4th at p. 1086; 

J.F., supra, 228 Cal.App.4th at p. 209; In re N.S., supra, 97 Cal.App.4th at p. 172.) We 

have no quarrel with the use of the substantial evidence standard in those cases. As 

Minors correctly point out, however, “almost all reported cases are appeals by a parent or 

the agency, not a child.” Minors accurately observe that “[n]o published case has 

addressed what . . . standard of review applies where the social service agency was the 

party that requested termination of jurisdiction and the child or children opposed the 

request.”10 

 

10 There are few published cases in which the social services agency has recommended 

termination of dependency jurisdiction to the juvenile court. And in those cases, the 

appellants were parents who agreed with the agency’s position. Their appeals challenged 

the juvenile court’s decision to continue supervision despite the social service agency’s 

recommendation. (See In re D.B., supra, 239 Cal.App.4th at pp. 1080-1081, 1084; J.F., 

supra, 228 Cal.App.4th at p. 205 .) Thus, the appellants in those cases did not ask the 

juvenile court to depart from the “statutory presumption” in favor of termination. 

(Shannon M., supra, 221 Cal.App.4th at p. 290.) Such cases are distinguishable from the 
14

The substantial evidence standard of review applies in the usual case in which the 

social services agency opposes termination of jurisdiction, “[b]ut this test is typically 

implicated when a defendant contends that the plaintiff succeeded at trial in spite of 

insufficient evidence. In the case where the trier of fact has expressly or implicitly 

concluded that the party with the burden of proof did not carry the burden and that party 

appeals, it is misleading to characterize the failure-of-proof issue as whether substantial 

evidence supports the judgment. This follows because such a characterization is 

conceptually one that allows an attack on (1) the evidence supporting the party who had 

no burden of proof, and (2) the trier of fact’s unassailable conclusion that the party with 

the burden did not prove one or more elements of the case. [Citations.]” (In re I.W.

(2009) 180 Cal.App.4th 1517, 1528 (I.W.).)

As there was no published case discussing which party bore the burden of proof at 

a section 364(c) review hearing when the dependent minors opposed the social services 

agency’s recommendation that jurisdiction be terminated,11 we asked the parties to 

submit supplemental briefs on whether the standard of review articulated in I.W., supra,

180 Cal.App.4th 1517 should be applied to the order before us.12 In their supplemental 

briefs, both Minors and the Agency argued I.W. does not apply. Both took the position 

that the Agency has the burden of proof even where its position is that the dependency 

case should be dismissed. We then asked the parties to tell us at oral argument whether 

they continued to adhere to that position in light of (1) the statute’s presumption in favor 

of termination of dependency jurisdiction and (2) its express allocation of the burden of 

 

one before us, because here, the appealing parties opposed the Agency’s recommendation 

that jurisdiction be terminated.

11 Although it does not discuss the issue, In re D.B., supra, 239 Cal.App.4th 1073 might 

arguably be read as assuming that a social services agency recommending termination of 

dependency jurisdiction bears the burden of proving termination is justified, i.e., by 

establishing the nonexistence of conditions justifying retention of jurisdiction. (Id. at 

p. 1085 [“SSA took the position and proved those conditions no longer existed”].) The 

case contains no analysis of the issue, however.

12 Minors submitted a supplemental letter brief. The Agency then filed a supplemental

brief in response. Although Minors were given the opportunity to submit a reply, they 

did not do so.
15

proof to social services agency when the agency opposes termination. At oral argument, 

Minors’ counsel reaffirmed her view that the Agency bore the burden of proof. Counsel 

for the Agency, however, informed us her client had changed its position and now 

contended Minors, as the parties opposing termination, bore the burden of proof.

The parties’ supplemental briefs are devoted to addressing the burden of proof in 

the juvenile court. Clearly, they recognize that to determine our standard of review, we 

must first resolve which party bore the burden of proof on the relevant issue. (See 

Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 732.) That is, which party at the 

review hearing was required to “establish[ ] . . . that the conditions still exist which would 

justify initial assumption of jurisdiction under Section 300, or that those conditions are 

likely to exist if supervision is withdrawn”? (§ 364(c).) Allocation of the burden of 

proof presents an issue of statutory construction subject to de novo review. (See Villa v. 

McFerren (1995) 35 Cal.App.4th 733, 741.) As we explain, because section 364(c) 

would have required the juvenile court to terminate dependency jurisdiction in the 

absence of proof of conditions justifying assumption of jurisdiction, the burden of proof 

was on Minors, because they were the parties seeking to establish the existence of those 

conditions.

A. Language and History of Section 364(c)

Section 364(c) currently provides: “After hearing any evidence presented by the 

social worker, the parent, the guardian, or the child, the court shall determine whether 

continued supervision is necessary. The court shall terminate its jurisdiction unless the 

social worker or his or her department establishes by a preponderance of evidence that 

the conditions still exist which would justify initial assumption of jurisdiction under 

Section 300, or that those conditions are likely to exist if supervision is withdrawn. 

Failure of the parent or guardian to participate regularly in any court ordered treatment 

program shall constitute prima facie evidence that the conditions which justified initial 

assumption of jurisdiction still exist and that continued supervision is necessary.”

What we have called the “statutory presumption” in favor of termination of 

jurisdiction is found in the second sentence of section 364(c). (Shannon M., supra, 221 
16

Cal.App.4th at p. 290.) The relevant language of this sentence was added to section 364 

in 1982 by Senate Bill No. 14, and was part of a larger set of revisions to the laws 

governing juvenile dependents.13 (Stats. 1982, ch. 978, § 22, pp. 3537-3538; see 

generally Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 246.) The portion of the 

text requiring termination of jurisdiction was first adopted by the Senate on January 26, 

1982 as an amendment to the proposed bill.14 (4 Sen. J. (1981-1982 Reg. Sess.) pp. 7223, 

7226-7227.)

Prior to this amendment, once the juvenile court had assumed dependency 

jurisdiction, the burden of proof ordinarily “ ‘was on the person seeking a termination of 

the court’s jurisdiction “to show cause, if [he has] cause, why the jurisdiction of the court 

over the minor should be terminated.” ’ [Citations.]” (Shannon M., supra, 221 

Cal.App.4th at p. 290.) The effect of the new language was to shift the burden of proof 

on the issue of termination of dependency jurisdiction from the party requesting 

termination to the party opposing it. Section 364(c) appears to presume “the social 

worker or his or her department” will typically be the party opposing termination.

 

13 Prior to amendment, section 364 read: “In any case in which the court has ordered that 

a parent or guardian shall retain physical custody of a minor who is found to be a person 

described in subdivision (d) of Section 300, subject to supervision of the probation 

officer, whenever the probation officer subsequently receives a report of acts or 

circumstances which indicate that there is reasonable cause to believe that the minor is a 

person described in subdivision (d) of Section 300, he shall commence proceedings under 

this chapter. If, as a result of the proceedings required, the court finds that the minor is a 

person described in subdivision (d) of Section 300, the court shall remove such minor 

from the care, custody, and control of his parent or guardian and shall commit such minor 

to the care, custody, and control of those persons or organizations enumerated in 

Section 362.” (Stats. 1976, ch. 1068, § 10, p. 4774.) The language of former section 364 

was in turn derived from former section 727.6. (Stats. 1971, ch. 1729, § 6, pp. 3679-

3680.)

14 We have located no legislative history explaining the origin or intent of this particular 

language, but the history of Senate Bill No. 14 shows the Legislature was generally 

concerned with providing greater emphasis on services to maintain children in their 

homes when safe to do so and on protection of the rights of parents of children in the 

dependency system. (See Assem. Off. of Research, 3d reading analysis of Sen. Bill 

No. 14 (1981-1982 Reg. Sess.) as amended Aug. 19, 1982, p. 1; Cynthia D. v. Superior 

Court, supra, 5 Cal.4th at p. 246.)
17

Thus, in the typical case in which the social services agency opposes termination 

of jurisdiction, the statute expressly allocates the burden of proof to the agency. 

(§ 364(c) [“The court shall terminate its jurisdiction unless the social worker or his or her 

department establishes by a preponderance of evidence . . . .”], italics added.) While the 

first sentence of section 364(c) allows parents, guardians, and dependent minors to offer 

evidence on whether jurisdiction should be terminated (J.F., supra, 228 Cal.App.4th at 

p. 210), the statute is silent on which party bears the burden of proof where the social 

services agency recommends termination and another party opposes that 

recommendation. Since the statute itself does not allocate the burden of proof in these 

circumstances, “we must look elsewhere to determine where that burden should be 

properly placed.” (In re Audrey D. (1979) 100 Cal.App.3d 34, 42 (Audrey D.).)

B. The Statutory Status Quo and its Effect on the Burden of Proof

In Hume, supra, 140 Cal.App.4th 1385, the Fourth District provided a helpful 

framework for analyzing this issue. Hume explained: “The burden of proof is to law 

what inertia is to physics—a built-in bias in favor of the status quo. [Citation; fn. 

omitted.] That is, if you want the court to do something, you have to present evidence 

sufficient to overcome the state of affairs that would exist if the court did nothing.” (Id. 

at p. 1388.) The burden of proof is allocated “functionally, assigning the role of 

‘plaintiff’ to the party seeking to upset the status quo.” (Id. at p. 1392.) “Of course, the 

hard work for courts presented with burden of proof issues is to ascertain the true nature 

of the status quo, or the baseline where the court starts.” (Id. at p. 1388.) Our task is 

therefore to identify the status quo or baseline in this particular case.

To determine the status quo, courts look to the relevant statute or statutory 

scheme. (Hume, supra, 140 Cal.App.4th at p. 1389 [looking to “relevant Probate Code 

statutes governing inventory and accountings in conservatorship proceedings”]; accord, 

Vance v. Bizek (2014) 228 Cal.App.4th 1155, 1164 [looking to provisions of Probate 

Code governing disclaimer of interest by trust beneficiary to determine status quo].) 

Where the statutory scheme dictates a particular result in the absence of a contrary 

showing, “[t]his state of affairs is the status quo.” (In re Estate of Lensch (2009) 177 
18

Cal.App.4th 667, 681 (Lensch); accord, Hume, supra, 140 Cal.App.4th at p. 1389 [where 

appraisal statutes provided that conservator “ ‘shall file’ ” an inventory and appraisal 

under oath, filing of verified appraisal was baseline or status quo]; see also In re R.V.

(2015) 61 Cal.4th 181, 197, 200 [because statute presumes juvenile ward is competent, 

burden of proving incompetency is on party asserting it, and juvenile court may 

determine minor is competent even if prosecution offers no evidence].) A review of the 

case law illustrates this point.

In Lensch, the decedent, Gladys, left a will dividing her estate between her 

daughter Claudia and her son Jay. (Lensch, supra, 177 Cal.App.4th. at p. 671.) Jay was 

found dead 11 hours after Gladys’s death. (Ibid.) Jay’s will disinherited his two sons, 

Jason and Ean. (Ibid.) Claiming they were entitled to Jay’s share of Gladys’s estate, 

Jason and Ean petitioned for a determination of which family member died first. (Id. at 

pp. 671, 675.) The executor of Jay’s estate opposed the petition. (Id. at p. 672.) Under 

the applicable provision of the Probate Code, in the absence of evidence of whether 

Gladys or Jay had died first, Gladys’s gift to her son would pass to his children, as if she 

had survived her son. (Id. at p. 681.) This was the “status quo” under the statutory 

scheme. Since the claim that Jay survived Gladys upset the status quo, the burden of 

proof was properly placed on the executor of Jay’s estate, “the party to whom proof of 

survival is essential to taking under her will.” (Ibid.)

Similarly, in People v. Gregerson (2011) 202 Cal.App.4th 306 (Gregerson), an 

involuntarily committed mentally disordered offender (MDO), sought placement in 

outpatient treatment under Penal Code section 2972. (Id. at pp. 310-311.) Gregerson, the 

offender, conceded he met the criteria for extension of his MDO commitment. (Id. at 

p. 311.) He sought outpatient treatment under Penal Code section 2972, subdivision (d), 

which provides: “A person shall be released on outpatient status if the committing court 

finds that there is reasonable cause to believe that the committed person can be safely and 

effectively treated on an outpatient basis.” (Gregerson, supra, 202 Cal.App.4th at 

p. 314.) The Court of Appeal rejected Gregerson’s contention that he should not bear the 

burden of proving his suitability for outpatient treatment. It explained that under the 
19

statute, the “relevant baseline” is recommitment if Gregerson still met the MDO criteria. 

(Id. at p. 316, citing Pen. Code, § 2972, subd. (c) [“the court shall order the patient 

recommitted”], italics added.) “Once continuing MDO status is shown, the status quo 

becomes continued involuntary commitment—that is the state of affairs that would exist 

if the court does nothing further. At that point, release on outpatient treatment would 

upset the ‘built-in bias in favor of the status quo.’ [Citation.] And it would upset the 

status quo to the benefit of appellant.” (Gregerson, supra, 202 Cal.App.4th at p. 316.) 

Thus, because recommitment was the state of affairs that would have prevailed in the 

absence of court action, recommitment was the status quo, and Gregerson accordingly 

bore the burden of proof as the party seeking to upset that status quo. (Ibid.)

A case predating Hume applied the same type of analysis in the juvenile 

dependency context. In Fresno County Dept. of Children & Family Services v. Superior 

Court (2004) 122 Cal.App.4th 626 (Fresno County), an Indian child and her half-sister 

were removed from parental custody and placed with a foster family that later sought to 

adopt them. (Id. at pp. 631, 634-635.) An Indian tribe filed a section 388 petition 

seeking adoptive placement of the children with an Indian family. (Id. at pp. 631, 636.) 

The Indian Child Welfare Act (ICWA) requires that “absent ‘good cause’ . . . adoptive 

placements be made preferentially with (1) members of the child’s extended family, (2) 

other members of the same tribe, or (3) other Indian families.” (Id. at p. 641, citing 25 

U.S.C. § 1915(a).) The children’s counsel opposed the tribe’s request, and at the hearing 

on the petition, the juvenile court placed the burden of proof on the children to contest the 

placement preference. (Id. at p. 639.) The juvenile court ultimately denied the petition, 

finding good cause for not following ICWA’s preference for Indian placement. (Id. at 

p. 640.) The Court of Appeal held the juvenile court had properly placed the burden of 

proof on the children. (Id. at p. 644.) The tribe’s request to change the placement was 

“based on ICWA and its preference for placement with an Indian family.” (Ibid.) Since 

the children sought to have the juvenile court do something other than follow the 

statutory mandate, they properly bore the burden of proof on the issue of good cause. 

(Ibid.)
20

Thus, Fresno County’s holding is in line with the rule articulated in Hume. 

Because ICWA’s statutory preference for placement with an Indian family would be 

“operative unless something else happens,” placement with an Indian family was the 

“baseline, or status quo[.]” (Hume, supra, 140 Cal.App.4th at p. 1389.) Since the 

children were “trying to change the result that would normally obtain without 

intervention” (id. at p. 1390), the juvenile court “appropriately placed the burden on the 

children’s counsel to establish good cause not to follow the preference.” (Fresno County, 

supra, 122 Cal.App.4th at p. 644.) Fresno County is particularly relevant to our case 

because the Court of Appeal placed the burden of proof on the children even though the 

tribe sought a change in the children’s existing placement by removing them from the 

foster family and placing them with Indian relatives. (Id. at pp. 634-635.) Although 

granting the tribe’s petition would have changed the children’s placement, the status quo 

was determined by ICWA’s placement preference. In other words, the status quo was the 

result the relevant statute would have dictated in the absence of a contrary showing. (See 

Lensch, supra, 177 Cal.App.4th at p. 681.)

Having examined the language of section 364, we turn to the general rule of 

Evidence Code section 500 “to round out the picture.”15 (Hume, supra, 140 Cal.App.4th 

at p. 1390; Audrey D., supra, 100 Cal.App.3d at p. 44.) “Under Section 500, the burden 

of proof as to a particular fact is normally on the party to whose case the fact is 

essential.” (Cal. Law Revision Com. com., 29B Pt. 1B West’s Ann. Evid. Code (2011) 

foll. § 500, p. 309.) This rule reflects “the general principle that a party who seeks a 

court’s action in his favor bears the burden of persuasion thereon.” (Aguilar v. Atlantic 

Richfield Co. (2001) 25 Cal.4th 826, 850.) Here, Minors asked the juvenile court to 

retain jurisdiction over them. In the language of Evidence Code section 500, this was a 

“claim for relief” because Minors sought to persuade the court to depart from the 

statutory presumption in favor of termination of jurisdiction. (See Hume, supra, 140 

 

15 Evidence Code section 500 provides: “Except as otherwise provided by law, a party 

has the burden of proof as to each fact the existence or nonexistence of which is essential 

to the claim for relief or defense that he is asserting.”
21

Cal.App.4th at p. 1390.) Essential to this claim for relief was a showing “that the 

conditions still exist which would justify initial assumption of jurisdiction under 

Section 300, or that those conditions are likely to exist if supervision is withdrawn.” 

(§ 364(c).) In contrast, the Agency cannot be said to have asserted a claim for relief, 

since it did no more than recommend that the juvenile court do what section 364(c) 

would ordinarily require.16 Because its recommendation accorded with the statutory 

presumption in favor of termination, the Agency was under no duty to present any further 

proof. (See In re R.V., supra, 61 Cal.4th at p. 200 [because ward is presumed competent, 

prosecution need not present affirmative evidence of competency].)

C. Because Minors Seek to Upset the Statutory Status Quo of Termination of 

Dependency Jurisdiction, They Bear the Burden of Proof.

Applying the foregoing analysis to the case before us, it is evident the status quo 

under section 364(c) is termination of dependency jurisdiction. (§ 364(c) [“The court 

shall terminate its jurisdiction unless” conditions justifying retention of jurisdiction are 

shown to exist], italics added; Cal. Rules of Court, rule 5.706(e)(1) [“The court must

terminate its dependency jurisdiction . . .”], italics added; J.F., supra, 228 Cal.App.4th at 

p. 210.) The statute’s use of the word “shall” indicates termination of jurisdiction is 

mandatory in the absence of appropriate proof. (§ 15 [“ ‘Shall’ is mandatory”]; In re 

D.B., supra, 239 Cal.App.4th at p. 1085 [in § 364(c), “use of the word ‘shall’ denotes a 

mandatory act”].) The juvenile court is under a duty to terminate dependency jurisdiction 

unless “there is a preponderance of evidence that the conditions are such to justify that 

retention.” (J.F., supra, 228 Cal.App.4th at p. 210.) The baseline is therefore the 

 

16 For this reason, we disagree with the argument in the Agency’s supplemental brief that 

the social services agency retains the burden of proof even when its recommendation is 

that continued supervision is no longer necessary and jurisdiction should be terminated. 

Section 364(c) expressly places the burden of proof on the social services agency when 

the agency opposes termination of jurisdiction. It says nothing about which party has the 

burden when the social services agency recommends termination. Since “[t]he 

Legislature obviously knows how to charge the agency with an evidentiary obligation in

a dependency proceeding,” we may infer that it would have explicitly imposed the burden 

of proof on the agency to prove jurisdiction should be terminated if it had wished to do 

so. (See In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1344.)
22

juvenile court’s obligation to terminate jurisdiction and return children to their parents. 

(See Lensch, supra, 177 Cal.App.4th at p. 681 [status quo is testamentary disposition that 

would obtain in absence of other evidence]; Hume, supra, 140 Cal.App.4th at p. 1389 

[status quo under Probate Code is conservator’s duty to file an inventory].) Here, “it is 

[Minors] who seek[] to upset the status quo” (ibid.) because they are “trying to change 

the result that would normally obtain without intervention[.]” (Id. at p. 1390.) And this 

is true even though the termination order results in a change in Minors’ dependency 

status. (See Fresno County, supra, 122 Cal.App.4th at pp. 634-635, 644.)

Where, as here, the social services agency recommends termination of jurisdiction, 

termination will be the “default result” unless either the parent, the guardian, or the child 

objects and establishes by a preponderance of the evidence that conditions justifying 

retention of jurisdiction exist or are likely to exist if supervision is withdrawn. (See 

Hume, supra, 140 Cal.App.4th at p. 1392.) In this case, Minors were the parties seeking 

to persuade the juvenile court to do something other than follow the statutory 

presumption favoring termination of jurisdiction. As such, they bore the burden to 

establish the existence of conditions justifying retention of dependency jurisdiction. (See 

Fresno County, supra, 122 Cal.App.4th at p. 644.)

D. The Evidence Does Not Compel a Finding in Minors’ Favor.

Having concluded Minors bore the burden of proof below, it follows that we 

review the juvenile court’s ruling under the standard of I.W., supra, 180 Cal.App.4th 

1517. Since the juvenile court terminated jurisdiction, it plainly did not find Minors had 

met their burden of proof. As the issue on appeal turns on Minors’ failure of proof at 

trial, the question is “whether the evidence compels a finding in favor of the appellant[s]

as a matter of law.” (Id. at p. 1528.) We conclude it does not.

Minors’ opening brief points us to evidence of the family’s problems and Mother’s 

inconsistent participation in individual therapy.17 Most of the evidence is from the early 

 

17 Many of Minors’ assertions in this portion of their brief are unsupported by citations to 

the record. On that basis alone, we could disregard them. (Dominguez v. Financial 

Indemnity Co. (2010) 183 Cal.App.4th 388, 392, fn. 2.) “Each and every statement in a 
23

stages of the dependency proceeding, however. For example, Minors cite the allegations 

in the August 24, 2010 section 300 petition and refer to a September 8, 2010 

jurisdiction/disposition report. They fail to mention later reports documenting Mother’s 

progress in complying with her case plan. And while Minors quote the social worker’s 

August 22, 2014 testimony that the family’s risk level was “very high,” they take it out of 

context and ignore the social worker’s testimony that the Agency found no safety 

concerns and that Mother had alleviated the conditions that led to initial assumption of 

jurisdiction. Such a selective discussion of the evidence would not satisfy Minors’ 

burden of showing error even under the substantial evidence standard of review. (See In 

re S.C. (2006) 138 Cal.App.4th 396, 414-415 [appellant challenging finding as 

unsupported by substantial evidence must set forth all material evidence on the point].) It 

necessarily cannot suffice to demonstrate Minors’ evidence “was . . . ‘uncontradicted and 

unimpeached’ and . . . ‘of such a character and weight as to leave no room for a judicial 

determination that it was insufficient to support a finding.’ [Citation.]” (I.W., supra, 180 

Cal.App.4th at p. 1528.)

The Agency’s brief details much of the evidence supporting termination of 

jurisdiction. We need not discuss that evidence here other than to note Minors make 

almost no effort to refute it in their reply brief. (See In re Ramone R. (2005) 132 

Cal.App.4th 1339, 1351 [failure to respond to argument is implicit concession].) Instead, 

Minors simply direct us to evidence in the record that might have supported a conclusion 

different from that reached by the juvenile court. “Here, as in many dependency cases, 

the case posed evidentiary conflicts. And, as is common in many dependency cases, this 

case obligated the juvenile court to make highly subjective evaluations about competing, 

not necessarily conflicting, evidence. . . . It is not our function to retry the case. We 

therefore decline [Minors’] implicit invitation to review the record so as to recount 

 

brief regarding matters that are in the record on appeal, whether factual or procedural, 

must be supported by a citation to the record. This rule applies regardless of where the 

reference occurs in the brief.” (Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 96-97, 

fn. 2.)
24

evidence that supports [their] position (reargument) with the object of reevaluating the 

conflicting, competing evidence and revisiting the juvenile court’s failure-of-proof 

conclusion.” (I.W., supra, 180 Cal.App.4th at p. 1528.) This is not a case “where 

undisputed facts lead to only one conclusion.” (Id. at p. 1529; see In re R.V., supra, 61 

Cal.4th at p. 203 [reviewing court “inquires whether the weight and character of the 

evidence . . . was such that the juvenile court could not reasonably reject it”], fn. 

omitted.) Minors have failed to meet their burden on appeal. (I.W., supra, 180 

Cal.App.4th. at p. 1529.)

III. We May Imply a Finding on Mother’s Participation in Her Court Ordered 

Treatment Plan.

Minors argue the juvenile court erred by failing to make an express finding on 

Mother’s participation in her case plan. Under section 364(c), the “[f]ailure of the parent 

or guardian to participate regularly in any court ordered treatment program shall 

constitute prima facie evidence that the conditions which justified initial assumption of 

jurisdiction still exist and that continued supervision is necessary.” Minors contend the 

Agency’s own evidence established Mother had failed to comply with her court ordered 

treatment plan. We disagree.18

A. Section 364(c) Does Not Require an Express Finding.

Assuming this argument is properly before us, it has no merit. Unlike section 364, 

some provisions of the Juvenile Dependency Law expressly require the juvenile court to 

set forth the facts supporting its decision. For example, section 366.21, subdivisions (e) 

and (f) govern six-month and 12-month status review hearings for minors not in parental 

custody. Both subdivisions require the juvenile court to “specify the factual basis for its 

 

18 We question whether this issue has been preserved for appeal. Although Minors tell us 

their counsel requested this finding from the juvenile court, we have reviewed the cited 

page of the reporter’s transcript and find no such request. Ordinarily, specific findings of 

fact are required in dependency proceedings only if requested by a party. (E.g., In re 

Marcel N. (1991) 235 Cal.App.3d 1007, 1013-1014 [findings to support termination of 

parental rights].) The failure to request a finding constitutes an implied waiver. (See In 

re Randi D. (1989) 209 Cal.App.3d 624, 631.) We could therefore treat this contention 

as forfeited.
25

conclusion” as to whether return of the minor to parental custody would be detrimental.19 

(§ 366.21, subds. (e), (f).) Section 364 also governs status review hearings, but it 

contains no similar language requiring an express finding on the issue of a parent’s 

failure to participate in court ordered treatment. The omission of such language is 

significant, because “ ‘ “[w]here a statute on a particular subject omits a particular 

provision, the inclusion of such a provision in another statute concerning a related matter 

indicates an intent that the provision is not applicable to the statute from which it was 

omitted.” ’ ” (In re A.M. (2010) 187 Cal.App.4th 1380, 1389, quoting In re Connie M. 

(1986) 176 Cal.App.3d 1225, 1240.) In other words, the Legislature has shown that 

when it intends for the juvenile court to make express findings on an issue at a review 

hearing, it knows how to use language clearly expressing that intent. (See In re Chantal 

S., supra, 13 Cal.4th at pp. 206-207.) This strongly suggests the juvenile court did not 

need to make any specific, on-the-record finding concerning Mother’s participation in her 

court ordered treatment program. (See In re A.M., supra, 187 Cal.App.4th at p. 1389.)

Where the statute does not mandate explicit findings, and where substantial 

evidence supports the juvenile court’s order, findings may be implied. (See, e.g., In re 

A.A. (2008) 167 Cal.App.4th 1292, 1321 [court would imply finding under Indian child 

exception of § 366.26, subd. (c)(1)(B)(vi)]; In re Daniel C.H. (1990) 220 Cal.App.3d 

814, 838 [termination of visitation; former § 361, subd. (a)]; In re Corienna G. (1989) 

213 Cal.App.3d 73, 83 [permanency planning order; former § 366.25, subd. (d)].) Here, 

the juvenile court’s decision to terminate dependency jurisdiction necessarily means it 

found conditions justifying an initial assumption of jurisdiction under section 300 did not 

exist and were unlikely to exist if supervision were withdrawn. (§ 364(c).) Since 

Mother’s failure to participate in her court ordered treatment program would have 

constituted prima facie evidence that such conditions did still exist (§ 364(c)), it is 

 

19 Another such provision is section 361, which concerns removal from parental custody. 

(§ 361, subd. (d) [“court shall state the facts on which the decision to remove the minor is 

based”].) Yet another is section 361.2, which governs placement with a noncustodial 

parent. (§ 361.2, subd. (c) [“court shall make a finding either in writing or on the record 

of the basis for its determination”].)
26

reasonable to infer the juvenile court found to the contrary. (See In re A.A., supra, 167 

Cal.App.4th at p. 1321 [where juvenile court issues order terminating parental rights, 

reviewing court will imply from termination order that juvenile court also found 

termination would not be detrimental to minor].) The juvenile court could not have 

concluded Mother had failed to participate regularly in court ordered treatment and still 

have terminated jurisdiction. The finding regarding Mother’s participation in her court 

ordered treatment plan may therefore be implied from the juvenile court’s ruling.

B. Substantial Evidence Supports the Juvenile Court’s Implied Finding.

The only remaining question is whether the juvenile court’s implied finding on 

this issue is supported by substantial evidence. (In re Corienna G., supra, 213 

Cal.App.3d at pp. 83-84.) We conclude it is. The Agency reported in December 2013 

that Mother continued to participate in individual therapy and was compliant with her 

appointments. According to the Agency’s report, Mother was “open-minded to services 

available for her children, meeting with service providers regularly and providing 

adequate and appropriate care.” 

While the Agency’s May 27, 2014 status review report stated Mother’s 

participation in individual therapy had been “inconsistent,” it noted Mother often had to 

cancel therapy sessions because of appointments and meetings involving her children. 

This was due, in part, to the inflexibility of the therapist’s schedule. And despite the 

inconsistent nature of Mother’s attendance, her therapist reported Mother “worked very 

hard dealing with her abuse issues and PTSD.” In addition, the therapist opined Mother 

“has taken her therapy sessions seriously” and “has come a long way and . . . takes 

ownership of her responsibilities.” At the hearing, the child welfare worker testified 

Mother was compliant with her case plan requirements. 

The Agency’s July 14, 2014 memorandum report explained Mother continued to 

be actively involved in her case plan. Mother had requested a new referral to a new 

therapist. The therapist reported Mother was “very persistent and eager with her 

treatment.” Mother’s scheduling difficulties were “due to no child-care for the five 

[M]inors.” The Agency reported Mother was able to meet Minors’ “medical, physical, 
27

educational and mental health needs.” This evidence suffices to support the juvenile 

court’s implied finding.

Minors recite other evidence in the record that might support conclusions different 

from those drawn by the juvenile court. Challenges to resolution of disputed factual 

questions are governed by the substantial evidence standard of review, however, and that 

standard does not permit a reviewing court to “substitute its judgment for that of the 

juvenile court.” (In re Michael G. (2012) 203 Cal.App.4th 580, 584.) We do not 

“reweigh the evidence, evaluate the credibility of witnesses or indulge in inferences 

contrary to the findings of the trial court.” (Id. at p. 589.) Instead, we “ ‘accept[] the 

evidence most favorable to the order as true and discard [ ] the unfavorable evidence as 

not having sufficient verity to be accepted by the trier of fact.’ ” (Id. at p. 595, quoting In

re Casey D. (1999) 70 Cal.App.4th 38, 53.) Because the juvenile court’s findings are 

adequately supported by the record, we have no power to disturb them.

Despite the evidence just discussed, Minors suggest the juvenile court was 

persuaded to terminate jurisdiction not because it had concluded Minors would not be at 

risk in Mother’s custody, “but rather because the social workers were weary of 

monitoring and trying to address the intractable problems and erratic behaviors of an 

extremely stressed and impoverished single mother and her five children.” We refuse to 

entertain this suggestion. Minors point to nothing in the record that would support such 

an accusation of improper motive on the part of the Agency’s employees. (See In re S.C., 

supra, 138 Cal.App.4th at p. 412 [unwarranted personal attacks on character or motives 

of opposing party are inappropriate].) Minors’ speculation about the juvenile court’s 

reasons is irrelevant in any case. “Trial court judgments which are on their face correct, 

are not overturned because a reviewing court suspects the trial judge based his decision 

on an unexpressed and improper ground, in violation of his oath of office.” (People v. 

Lindsey (1972) 27 Cal.App.3d 622, 637.)

We are not unmindful of the formidable challenges Mother faces. She is a woman 

of very limited means who must parent the five Minors while dealing with her own 

mental health problems and those of her children. At the hearing below, the Agency 
28

candidly admitted the family’s situation may not be optimal or perfect and that Mother 

may be overwhelmed at times. But as the Agency argued, that is not the same as abuse or 

neglect. And it does not compel the continued exercise of dependency jurisdiction. “The 

parents who come through the dependency system are more in need of help than most. If 

we are lucky, they are parents who can learn to overcome the problems which landed 

their children in the system, and who can demonstrate the dedication and ability to 

provide for their children’s needs in an appropriate manner.” (David B. v. Superior Court

(2004) 123 Cal.App.4th 768, 789.) In cases such as this, “[w]e are looking for passing 

grades . . . , not straight A’s.” (Id. at p. 790.)

IV. Minors Have Not Shown the Juvenile Court Failed to Consider their Best 

Interests.

Minors contend the juvenile court misinterpreted its duty by failing to consider 

whether the children’s best interests would be served by maintaining dependency 

jurisdiction. They argue this merits reversal. We disagree.

Initially, Minors direct us to nothing in the record showing this argument was 

raised below. By failing to present the issue to the juvenile court, Minors have forfeited 

the issue. (E.g., In re Christopher B. (1996) 43 Cal.App.4th 551, 558.) Even if Minors 

had preserved the argument for our review, it would fail.

Minors assert the juvenile court “does not appear to have considered whether the 

children’s best interests would be served by terminating dependency jurisdiction.” Even 

assuming the best interests standard applied at the review hearing,20 Minors point to 

nothing showing the juvenile court failed to consider their best interests. In essence, they 

ask us to “presume from the record’s silence that the juvenile court was either unaware 

of, or failed to perform, its [alleged] statutory duty to consider” their best interests. (In re 

Julian R. (2009) 47 Cal.4th 487, 498.) We refuse to do so, because established principles 

of appellate review command us to presume the opposite—that the juvenile court was 

 

20 The Agency argues this is not the standard applicable at a section 364 review hearing. 

As we conclude Minors’ argument fails for other reasons, we need not decide the 

question and decline to explore it further.
29

aware of and followed applicable law. Error must be affirmatively shown, but Minors 

have not met their burden to do so. (Id. at p. 499.)

DISPOSITION

The judgment is affirmed.

_________________________

Jones, P.J.

We concur:

_________________________

Simons, J.

_________________________

Bruiniers, J.
30

A143211

Superior Court of the County of Alameda, Nos. HJ10015424, HJ100154245, 

HJ10015426, HJ10015427, HJ10015428, Willie Lott, Jr., Judge

Deborah Dentler, for Appellants.

Margaret Coyne as Amicus Curiae on behalf of Appellants.

Donna Ziegler, County Counsel, Gabrielle Janssens, Associate County Counsel, for 

Plaintiff and Respondent.

A143211