Filed 5/3/23 In re Mytashai C. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

In re MYTASHAI C., et al.,

Persons Coming Under the 

Juvenile Court Law.

B323723

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

N.B.,

Defendant and Appellant.

(Los Angeles County

Super. Ct. No. 

18CCJP04390G-K)

APPEAL from an order of the Superior Court of Los 

Angeles County, Lisa Brackelmanns, Commissioner. Affirmed.

Suzanne Davidson, under appointment by the Court of 

Appeal, for Defendant and Appellant.
2

Dawyn R. Harrison, County Counsel, Kim Nemoy, 

Assistant County Counsel, Stephen Watson, Senior Deputy 

County Counsel, for Plaintiff and Respondent.

 ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳

N.B. (mother) appeals from the juvenile court’s order

following a contested 12-month review hearing in the dependency 

case relating to her five minor children. Mother contends that 

the Department of Children and Family Services (Department) 

failed to meet its burden of proving that the two oldest children, 

referred to here as daughter and son1, would be at risk of 

substantial detriment if returned to her custody. We conclude 

that substantial evidence supports the court’s order, which we 

affirm.

FACTUAL AND PROCEDURAL BACKGROUND

This is Mother’s third appeal of court orders arising from 

this dependency case. Mother’s first appeal was from the court’s 

order following a dispositional hearing on July 16, 2021. We 

affirmed the court’s findings and orders in an unpublished 

opinion. (In re M.C. (June 23, 2022, B314143) [nonpub. opn.].)

Mother’s second appeal was from the court’s findings and orders 

made at the six-month review hearing. That appeal was 

dismissed on January 23, 2023. The present appeal is from the 

trial court’s findings and orders entered following the 12-month 

review hearing on September 12, 2022.

1 Because the two children relevant to this appeal have the 

same initials, we refer to them as daughter and son, meaning no 

disrespect to mother or to either child.
3

On July 15, 2021, the court sustained charges against 

mother for physical and emotional abuse of daughter (including 

allegations that mother struck daughter with her fists and an 

extension cord and threatened to kill daughter with gasoline and 

by shooting her), substance abuse endangering the children, and 

for leaving the children for days at a time without adult 

supervision. Mother was ordered to attend parenting classes, to 

attend individual counseling for herself and joint counseling with 

daughter, to obtain a mental health evaluation, and to submit to 

random drug tests. She was also ordered to have a minimum of 

nine hours of weekly monitored visits with her children. At the 

six-month review hearing, the court reviewed mother’s progress 

with her reunification plan and ordered that reunification 

services continue while the children remained out of her physical 

custody.

In anticipation of the 12-month review hearing, the 

Department prepared a report detailing mother’s progress toward 

family reunification. That report noted that mother had 

completed domestic violence and parenting classes, and was 

participating in individual counseling and group sessions for 

coping with anxiety. Mother had not, however, obtained a mental 

health evaluation and was not attending joint counseling sessions 

with daughter, who was “not interested in participating in 

anything” with mother. During the six months prior to the 

hearing, mother failed entirely to submit to random drug tests. 

Mother no-showed 11 times. She tested negative three times on

dates that she selected. Mother made contradictory statements 

that she was unavailable to test because she was driving “all over 

the County for her business” but also that she did not have 

money for gas to visit the children. In its report, the Department 
4

noted that the drug testing site was very close to mother’s 

residence.

The Department reported that mother visited son weekly, 

and that son wanted to return to mother’s custody. Son called or 

texted mother daily about attending her drug tests. Mother also 

visited daughter, but daughter expressed no interest in returning 

to live with mother. Mother did not regularly visit the three 

younger children.

Mother asked the Department to help her pay for gas to 

visit her children, but the Department reported that she failed to 

provide follow up information necessary to process her request. 

The Department noted that it had given mother gas money in 

December 2021 to permit her to visit her children, but that 

“mother did not go see her children. Not even for Christmas.” 

Overall, the Department concluded that despite completing 

certain of the court ordered programs, mother had “not learned” 

from them. The Department stated that mother “demonstrate[d] 

a lack of accountability,” “continue[d] to blame others for the 

consequences of her actions” and was “not forthcoming with the 

Department.” The Department accordingly recommended that 

daughter and son remain with their respective caregivers.

At the 12-month review hearing, mother requested that the 

children be returned to her or, in the alternative, that the court 

order unmonitored or extended visits. Following argument, the 

court found that although mother had made progress, it was not 

“substantial.” The court further found “that continued 

jurisdiction [was] necessary because conditions continue to exist 

which justified the court taking jurisdiction,” specifically pointing

to mother’s failure to test consistently and “demonstrate her 

sobriety.” The court found that the “return of the children to the 
5

physical custody of the parents would create a substantial risk of 

detriment to the children’s safety, creating a continuing necessity 

for the appropriateness of the current placement,” language that 

was repeated in the court’s written order. The court ordered that 

family reunification services continue for another six months. 

The court also ordered that mother would be allowed 

unmonitored visits with daughter and son after submitting six 

consecutive “clean” drug tests. In addition, the court ordered the 

Department to “explore all available funds to provide mother 

with transportation assistance” for visitation and drug testing.

The court entered its 12-month review order on September 

12, 2022. Mother filed a timely notice of appeal on September 16, 

2022.

2 We have jurisdiction under Welfare & Institutions Code 

section 395, subdivision (a)(1), and Code of Civil Procedure 

section 904.1, subdivision (a)(2).

DISCUSSION

A. Standard of review

At a 12-month review hearing, the court is required to 

return the child to the parent’s physical custody “unless the court 

finds, by a preponderance of the evidence, that the return of the 

child to their parent . . . would create a substantial risk of 

detriment to the safety, protection, or physical or emotional wellbeing of the child.” (Welf. & Inst. Code, §366.21, subd (f)(1).)3

The Department bears the burden of proof. (Ibid.)

2 Although the order affects all five children, mother’s 

arguments on appeal address only visitation with and custody of 

daughter and son.

3 Further statutory citations are to the Welfare & 

Institutions Code unless otherwise stated.
6

We review the order to determine whether the juvenile

court’s finding of a “substantial risk of detriment” is supported by 

substantial evidence. (J.H. v. Superior Court (2018) 

20 Cal.App.5th 530, 535; see also In re Kristin H. (1996) 

46 Cal.App.4th 1635, 1649.) “We do not pass on the credibility of 

witnesses, attempt to resolve conflicts in the evidence or weigh 

the evidence. Rather, we draw all reasonable inferences in 

support of the findings, view the record favorably to the juvenile 

court’s order and affirm the order even if other evidence supports 

a contrary finding.” (In re James R. (2009) 176 Cal.App.4th 129, 

135; see also In re Isabella F. (2014) 226 Cal.App.4th 128, 137-

138 [same].)

B. Substantial evidence supports the court’s order

Mother contends that substantial evidence did not support 

the court’s determination that returning the two children to 

mother’s custody would place them at substantial risk of 

detriment. She argues that she had completed parenting and 

individual counseling and that other aspects of her case plan 

were unnecessary or impractical.

In reviewing whether the record contains substantial 

evidence to support the court’s finding of detriment, “we must

keep in mind that the purpose of the reunification plan is ‘to 

overcome the problem that led to removal in the first place.’ ” (In 

re Mary B. (2013) 218 Cal.App.4th 1474, 1483.) The juvenile 

court sustained the petition based in part on mother’s substance 

abuse. And while the court found that mother had made progress

with her court ordered programs, it also noted that she had failed 

to consistently drug test and found that “continued jurisdiction 

[was] necessary because conditions . . . exist which justified the 
7

court taking jurisdiction.” Substantial evidence supported the 

court’s finding.

“Detriment can be shown many different ways.” (A.H. v. 

Superior Court (2010) 182 Cal.App.4th 1050, 1059.)

Section 366.21, subdivision (f)(1)(B), specifically provides that 

parental failure “to participate regularly and make substantive 

progress in court-ordered treatment programs shall be prima 

facie evidence that return would be detrimental.” (See also 

Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763 

[same].) The evidence at the hearing showed mother had failed 

to make substantive progress in her court-ordered programs. The 

Department had noted that despite completing some classes 

mother had “not learned” from them and “demonstrate[d] a lack 

of accountability.” Regarding the order to submit random drug 

tests the evidence was even more clear. Between January and 

August of 2022, mother never once submitted to a random drug 

test, and no-showed 11 times. “[A] missed drug test, without 

adequate justification, is ‘properly considered the equivalent of a 

positive test result.’ ” (In re Kadence P. (2015) 241 Cal.App.4th 

1376, 1384; see also In re Christopher R. (2014) 225 Cal.App.4th 

1210, 1217 [same].) Although mother submitted three negative 

tests, they are of little value because they were conducted on 

dates mother chose, and therefore not “random.” What is more, 

mother offered contradictory explanations for not testing, stating 

that “her business” required her to drive all over the county, but 

also claiming that she lacked money for gas to attend tests or to 

visit her children. And she failed to take up offers from the 

Department to test at sites that were closer to her school or any 

other location in the county.
8

Mother also argues that the court did not take into account 

son’s expressed wish that he return to mother’s custody, or to the 

statement by counsel for daughter that her relationship with 

mother had improved significantly.4 However, as mother herself 

acknowledges, a child’s preference is an important but not a 

dispositive factor. (In re Patrick S. (2013) 218 Cal.App.4th 1254, 

1265 [“[A] child’s preference is not the deciding factor in a 

placement decision, even when that child is a teenager.”]; see also 

In re John M. (2006) 141 Cal.App.4th 1564, 1570 [13-year-old boy 

“was entitled to have his wishes considered [but] he was not 

entitled to decide where he would be placed.”].)

4 As regards daughter, at least, the evidence is in conflict: 

According to the Department, daughter expressed “no interest in 

returning [to] her mother.”
9

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL 

REPORTS

HEIDEL, J.*

We concur:

LAVIN, Acting P. J.

EGERTON, J.

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.