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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

In re MYTASHAI C. , et al., Person s Coming Unde r 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 Couns el, Stephe n 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 d aughter and s on 1

, would be at risk of
substantia l 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 o n 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 We affirmed the court’s findings and orders in an unpublished opinion.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 appe al 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 t he two children relevant to this appeal have the

same initials, we refer to them as d aughter and s on , meaning no disrespect to m other or to either child.3 On July 15, 2021, the court sustained charges against

m other for physical and emoti onal abuse of d aughter (including allegations that mother struck d aughter with her fists and an
extension cord and threatened to kill d aughter with gasoline and by shooting her)

, substance abuse endangering the children, and for leaving the children for da ys at a time without adult supervision. Mother was ordered to attend parenting classes, to attend individual counseling for herself and joint counseling with
d aughter, to obtain a mental health evaluation, and to s ubmit to
random drug test s

. 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 m other’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 m other’s progress toward family reunification. Th at report noted that m other had completed domestic violence and par enting classes, and was participating in individual counseling and group sessions for coping with anxiety. Mother had not , however, obtain ed a mental
health evaluation and was not attend ing joint counseling sessions
with d aughter , who was “not interested in participating in anything” with m other. During the six months prior to the hearing, m other failed entirely to submit to random drug tests

. Mother no

- show ed 11 times . S he 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 Department4

noted that the drug test ing site was very close to m other’s
residence. The Department reported that m other visited s on weekly,
and that s on wanted to return to m other’s custody. Son called or
texted m other daily about attending her drug tests

. Mother also
visited d aughter , but d aughter expressed no interest in returning
to live with m other

. Mother did not regularly visit the three younger children.
Mother asked the Department to help her pay for gas to
visit her children

, b ut the Department rep orted that she failed to provide follow up information necessary to process her request. The Department noted that it had given m other 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 other s for the consequences of her actions” and was “not forthcoming with the Department.” The Department accordingly recommended that
d aughter and s on remain with their respective caregivers.
At the 12

- month review hearing

, m other 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 foun d “ that continued jurisdiction [was] necessary because conditions continue to exist which justified the court taking jurisdiction

, ” specifically point ing

to m other’s fa ilure to test consistently and “demonstrate her sobriety.” The court found that the “ re turn of the children to the5

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. T he court ordered that family reunification services continue for another six months.
The court also ordered that mother would be allowed
unmonitored visits with d aughter and s on after submitt ing s ix
consecutive “clean” drug tests . In addition, the court ordered the Department to “explore all available fund s to provide m other with transportation assistance” for visitation and drug testing.
The court ente re d 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 Welf are & Inst itutions Code section 395, subd ivision (a) (1) , and Code of Civil Procedure section 904.1, subd ivision (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 well

being of the child.” (Welf. & Inst. Code, § 366.21, subd (f)(1).) 3 The Department bears the burden of proof. ( I bi d .)

2 Although the order affects all five children, m other’s arguments on appeal address only vis itation with and custody of d aughter and s on.
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 “substantia l 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 r e 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 ret urning 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 whet her 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 the7

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.” (S ee also Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763 [ same ] .) T he evidence at the hearing showed mother had failed to make substantive progress in her court

- ordered programs. The Department had noted th at despite completing some classes
mother had “not learned” from them and “demonstrate[d] a lack of accountability

. ” R egarding the order to submit random drug
tests the evidence was even more clear. B etween January and August of 2022, m other 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

,

m other offered con tradictory explanations for not test ing , 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 f rom 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

s on’s expressed wish that he return to m other’s custody, or to the statement by counsel for d aughter that her relationship with

m other had improved significantly. 4 However, as m other herself acknowledges, a child’s preference is an important b ut 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 [1 3

- 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 d aughter, at least, the evidence is in conflict: According to the Department, d aughter expressed “no i nterest 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.