Filed 5/31/13 M.R. v. Superior Court CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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 This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

M.R.,

Petitioner,

v.

THE SUPERIOR COURT OF SANTA 

CLARA COUNTY,

Respondent,

SANTA CLARA COUNTY 

DEPARTMENT OF FAMILY AND 

CHILDREN‟S SERVICES,

Real Party in Interest.

 H039423

 (Santa Clara County

 Super. Ct. Nos. JD020463,

 JD19825)

I. INTRODUCTION

Petitioner M.R. is the mother of A. and J., the young children at issue in this 

juvenile dependency case. She has filed a petition for writ of mandate seeking review of 

the juvenile court‟s orders terminating her reunification services and setting a Welfare 

and Institutions Code section 366.261permanency planning hearing. In her petition, the 

mother argues that the juvenile court erred because there is no substantial risk of 

 

1 All further statutory references are to the Welfare and Institutions Code unless 

otherwise indicated.
2

detriment in returning the children to her since (1) she has complied with the case plan; 

(2) there is no substantial evidence of domestic violence; (3) there is no substantial 

evidence that she has a substance abuse problem; and (4) there “have not been enough 

hearings” to support the finding of detriment.

For the reasons stated below, we determine that the juvenile court properly 

conducted an 18-month permanency review hearing pursuant to section 366.22, 

subdivision (a), although not all of the six-month and 12-month interim review hearings 

had been held for either A. or J. We also determine that the mother has not shown that 

the juvenile court‟s findings and orders are not supported by substantial evidence. 

Therefore, we will deny the writ petition.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. The Mother’s Children

The mother has five sons (R., F., P., A., and J.) with three different fathers. The 

father of R., age 17, is deceased. The father of F. and P., ages 11 and 10, is the mother‟s 

former husband, J.M. The mother‟s current husband, B.R., whom she married in 2010, 

is the father of her two youngest children, A., age three, and J., age two. All five children 

have been the subject of dependency proceedings.2 A. and J. are the only children at 

issue in this writ proceeding. Their father has not sought writ review.

B. Prior Related Appeals

The mother began receiving informal supervision services in lieu of court 

intervention from the Department of Family and Children‟s Services (the Department) in 

February 2009. At that time, there were at least eight prior child abuse and neglect 

 

2

The Department‟s request for judicial notice of the record in a related appeal, In 

re Robert H. (Jul. 22, 2011, H035646, H035948) [nonpub. opn.] (Robert H.), is granted. 

(Evid. Code, § 452, subd. (d)(1).) On our own motion, we take judicial notice of our 

prior opinion in Robert H., supra, H035646, H035948. Our summary of the factual and 

procedural background includes some information that we have taken from the prior 

opinion.
3

referrals involving the mother‟s four oldest sons that were substantiated for physical

abuse, caretaker absence/incapacity, emotional abuse, substantial risk of sexual abuse, 

and general neglect. Among other things, the mother had abused prescription pain 

medication and was in a methadone maintenance program.

During the period of informal supervision, the mother‟s eldest son, R., was 

involved in violent incidents in the home. The mother reported that in September 2009 

she saw R. shake A. with force when A., who was then a baby, would not stop crying. R. 

and the mother had a physical altercation, also in September 2009, in which R. attempted 

to choke the mother and she bit, scratched, and slapped him.

The Department subsequently filed a petition under section 300, subdivision (b) 

(failure to protect) as to R. and he was placed in protective custody. In October 2009 the 

Department filed petitions under section 300, subdivisions (b) (failure to protect) and (j) 

(abuse of a sibling) as to R.‟s younger brothers F., P., and A. At the time of the contested 

jurisdiction hearing held in April 2010, the mother was receiving in-home support and 

guidance in the parenting of her sons.

After the contested jurisdiction hearing concluded, the juvenile court found true all 

but one of the allegations in the section 300 petitions and ordered that the mother was to 

retain custody of the children with family maintenance services; J.M. was to have 

separate family maintenance services for his sons F. and P.; and B.R. was to have 

reunification services for his son, A. The juvenile court found that “without the court‟s 

intervention, these children would be at risk in that it is not for a lack of knowledge from 

the parents, but it is from a lack of follow through . . . the chances [that] this family 

would succeed as a unit would be very, very difficult to achieve and there could be [a] 

further injury or risk of harm, both physical and emotional to these children.”

In May 2010, A.‟s father, B.R., was released from custody on parole, but he was 

remanded about a week later due to a parole violation that occurred during a traffic stop. 

Although B.R. is a registered sex offender who is prohibited from contact with children, 
4

he was found in a car with the mother and A. After B.R.‟s remand, his parole agent 

found baby food, clothing, and diapers in B.R.‟s motel room.

About one month later, the Department filed section 387 supplemental petitions3

as to all four boys and they were placed into protective custody. Amended section 387 

supplemental petitions were later filed and, after a hearing, R. was released to his mother. 

In August 2010, the jurisdiction/disposition hearing was held. The juvenile court found 

the allegations in the section 387 supplemental petitions to be true and in its August 5, 

2010 disposition order adopted the Department‟s recommendations that R. remain with 

his mother with family maintenance services and that F. and P. remain with their father, 

J.M., with family maintenance services.

A contested disposition hearing was then held as to A. The juvenile court found 

by clear and convincing evidence that A. should not be returned home, stating: 

“[Mother] did not take responsibility, still makes excuses. There was convenient 

explanations that totally tried to devoid herself of any responsibility for bringing this case 

back in to court, instead of following through with the case plan as had been set in place. 

[¶] . . . [¶] It is clear that both parents are willing to undertake risks at the expense of 

these children.” The August 6, 2010 disposition order placed A. in foster care with 

family reunification services for the mother and B.R.

The mother appealed and on July 22, 2011, this court affirmed the August 5, 2010 

disposition order as to R., F. and P. (Robert H., supra, H035646, H035948.) The 

August 6, 2010 disposition order regarding A. was reversed and the matter was remanded 

to the juvenile court with directions to order the Department to provide proper notice to 

 

3

Section 387, subdivision (a) provides: “An order changing or modifying a 

previous order by removing a child from the physical custody of a parent . . . and

directing placement in a foster home . . . shall be made only after noticed hearing upon a 

supplemental petition.”
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the Apache tribes pursuant to the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 

et seq.). (Robert H., supra, H035646, H035948.)

Having reviewed the prior related appeal, we turn next to a review of the 

subsequent interim review proceedings regarding A., followed by a review of the 

dependency proceedings regarding J.

C. Interim Reviews Regarding A.

1. Six-Month Review

The Department‟s six-month status review report was filed in May 2011. At that 

time, 19-month-old A. remained in the foster home where he had been placed following 

his removal from the mother in June 2010. A. was reported to be healthy, happy, bonded 

with the foster mother, and making “excellent developmental progress in foster care.” In 

December 2010 A. began unsupervised visits at his parents‟ home. However, after the 

mother gave birth to J. in early 2011 and A.‟s father, B.R., admitted his unauthorized use

of methadone, the social worker recommended that A.‟s visits be supervised.

The services that the Department had provided to the family during the review 

period included monthly contacts with A., his parents, and his care providers; telephone 

contact with the mother‟s therapist; consultation with the mother‟s Housing Authority 

and CalWorks workers; referral of the mother to parenting class, domestic violence 

assessment and therapy; referral of the mother for a psychological evaluation; telephone 

contact with the mother‟s counselor at the methadone clinic; referral of B.R. for a DADS 

assessment, parent orientation, basic parenting class, outpatient treatment and domestic 

violence assessment; monthly bus passes for the parents; and obtaining funding for 

outpatient drug treatment services for B.R.

By May 2011, the mother had completed a parenting without violence class, had 

received individual counseling, and had completed a domestic violence assessment. She 

had also undergone a psychological assessment by Dr. Robert Mulcahy, who reported 

that the mother would be in a better position to engage in reunification services once she 
6

had demonstrated an ability to get “her depression and anxiety under control and by being 

a consistently effect[ive] parent with the children who are already in her care.” The 

mother was continuing to receive daily doses of methadone and her weekly drug tests had 

been negative.

The Department determined that it was not in A.‟s best interest to be returned to 

his parents‟ care in May 2011 because B.R. had refused to participate in either drug 

treatment, AA/NA meetings, or a batterer‟s program, and the mother had reported that 

B.R. verbally and emotionally abused her. Additionally, both parents were overwhelmed 

by caring for a baby, J., and teenager, R., in their home. The Department therefore 

recommended that the parents be provided with an additional six months of family 

reunification services and that A. remain in the foster home.

A six-month status review hearing was held on May 27, 2011. The minute order 

for May 27, 2011, indicates that the juvenile court ordered additional reunification 

services for the mother and terminated reunification services for the father, B.R.

2. 12-Month Review

The record reflects that the Department filed a 12-month status review report 

regarding A. on August 3, 2011. That report was not included in the record on appeal. 

The addendum report filed on August 31, 2011, in connection with the 12-month review 

included the Department‟s recommendations that the mother be provided with an 

additional six months of family reunification services and that A. remain in the foster 

home. The social worker was concerned that the mother was receiving weekly therapy 

with a therapist from Community Solutions but the therapist had not provided sufficient 

information for the social worker to make an assessment regarding reunification.

A 12-month review hearing was set for August 31, 2011. The hearing did not go 

forward because this court had reversed the August 6, 2010 disposition order regarding 

A. and remanded the matter to the juvenile court with directions to order the Department 

to provide proper notice to the Apache tribes pursuant to ICWA. (Robert H., supra, 
7

H035646, H035948.) A disposition hearing on remand was set in October 2011 with 

the 12-month status review trailing. The Department requested a continuance to receive 

responses from all noticed tribes and the disposition hearing was continued to 

November 16, 2011. At the continued disposition hearing, the juvenile court determined 

that ICWA did not apply and reinstated the disposition orders of August 6, 2010.

A.‟s parents apparently did not agree with the Department‟s recommendations 

and at the trial-setting hearing held on November 21, 2011, the juvenile court set the 

matter for mediation on January 9, 2012. No resolution was reached during mediation 

and a trial-setting hearing on the 12-month review was held on January 23, 2012. Trial 

management conferences were then held in February and March 2012. At the March 

2012 trial management conference, the Department requested a continuance “to expand 

visitation and assess for a possible change in recommendation to return of the children to 

the mother.”

In April 2012, the Department requested another continuance due to the social 

worker‟s unexpected absence. In May 2012 the Department changed its recommendation 

to recommending the return of A. and J. to the mother. The juvenile court set a mediation 

in June 2012 regarding their return. However, the record reflects that on May 9, 2012, a 

referral was made to the Child Abuse and Neglect Center alleging that the mother drove 

the children while she was impaired. By the time the mediation was held in June 2012, 

the Department had changed its recommendation again and was now recommending that 

the juvenile court terminate reunification services to the mother and set a section 366.26 

permanency planning hearing. No agreement was reached at the mediation and a trial 

was set in September 2012.

D. Pre-Trial Dependency Proceedings Regarding J.

1. Section 300 Petition

The Department filed a petition under section 300, subdivisions (b) (failure to 

protect) and (j) (abuse of a sibling) as to J. in January 2011, when he was a few days old. 
8

In the petition, the Department alleged that J. needed juvenile court supervision because 

he was at risk of neglect, physical and emotional harm, and sexual abuse in the care of his 

parents.

In February 2011, the Department applied for a protective custody warrant. The 

application stated that J.‟s safety in the parents‟ home had “decreased dramatically” 

because the father. B.R., had stopped participating in reunification services and had 

refused services to address substance abuse, domestic violence, and sex offender 

treatment. According to the mother, B.R. had been emotionally abusive to her. 

Additionally, J. had been exposed to methadone in utero and had several health problems 

for which the mother had refused public health nurse services. A warrant issued and J. 

was taken into protective custody. At the time the protective custody warrant was 

executed, the social worker entered the home and found marijuana plants growing.

2. Initial Detention Hearing

The Department filed an initial detention hearing report in February 2011 that 

recommended continued detention of J. with his brother A. in their foster home. The 

report stated that B.R. was a registered sex offender due to sexually abusing his daughter 

and he had “an extensive criminal history for acts of violence, sexual abuse, and drug 

abuse and failure to comply with parole conditions.” B.R. had continued to decline to 

participate in either court-ordered sex offender treatment or a domestic violence class and 

the mother had reported that B.R.‟s emotional abuse of her had increased. The mother 

was participating in services, but she had denied that she had a problem with prescription 

drug abuse (although that was the reason she was on methadone), denied that contact 

with B.R. placed her other children at risk, and disagreed “adamantly” with the 

psychological evaluation that she put her own needs ahead of the needs of her children.

At the initial detention hearing held on February 28, 2011, the juvenile court ruled 

that continued detention was necessary to protect J. and placed him temporarily in the 

foster home. The court also ordered supervised visitation for both parents.
9

3. Jurisdiction and Disposition

The Department filed addendum reports in connection with the contested 

jurisdiction hearing that recommended the continued detention of J. After the contested 

jurisdiction hearing was held in March 2011, the juvenile court found that the allegations 

of the amended section 300 petition were true and set a disposition hearing.

At the disposition hearing held in April 2011 the juvenile court kept all prior 

orders in effect and set the matter for mediation. The mediation was unsuccessful and 

another disposition hearing was held in May 2011. The Department filed an addendum 

report recommending that J. be made a dependent of the court and that family 

reunification services be offered to the parents.

A later addendum report recommended that reunification services for J.‟s father, 

B.R., be terminated. The reason for the change in recommendation was that an 

altercation between the mother and B.R. had occurred on May 12, 2011, in which B.R. 

became enraged, spat in her face, and killed the family‟s puppy by throwing it against a 

wall. B.R. later turned himself in to law enforcement and charges for animal cruelty and 

domestic violence were pending. However, the mother defended B.R. and stated that the 

puppy‟s death was an accident. The social worker was concerned that the mother did not 

recognize domestic violence and had resisted attending a domestic violence support 

group.

On May 27, 2011, the juvenile court declared J. a dependent of the court and 

ordered the mother to participate in and complete services, including counseling or 

psychotherapy, participating in a 12-step program or other substance abuse program, 

undergoing a substance abuse assessment if the social worker or methadone counselor 

reasonably suspected methadone or other drug abuse, receiving methadone treatment as 

recommended by the methadone clinic, developing an aftercare relapse prevention plan, 

and attending a domestic violence survivor‟s support group or individual domestic 
10

violence counseling. B.R. was also ordered to participate in and complete services, 

including a parenting class and a substance abuse parenting class.

4. Interim Status Review

The Department filed an interim review report in August 2011. At that time, J. 

remained in his foster home placement with his brother A. J. had been assessed, was 

found to have developmental delays likely due to drug exposure in utero, and physical 

therapy was recommended. His father, B.R., was incarcerated and had not participated in 

any reunification services. The mother was already participating in the services ordered 

in J.‟s siblings‟ dependency cases and had not attended AA or NA meetings. She had

participated in court-ordered visitation. However, the social worker was concerned that 

R., the mother‟s oldest son who resided with her, had been verbally and physically 

abusing the mother, had indirectly threatened her, and was sleeping with a screwdriver 

under his pillow. The Department recommended a slow transition of J. to the mother‟s 

care, consisting of unsupervised visits progressing to overnight visits, since she was not 

prepared to care for a small infant with developmental delays and many medical 

appointments.

An interim review hearing was held in October 2011. The juvenile court kept all 

prior orders in effect and directed that ICWA compliance was to follow the six-month 

review hearing.

5. Six-Month Review and Pretrial Proceedings

A six-month review hearing was set in November 2011. The juvenile court 

continued the matter for trial setting of a contested six-month review hearing. At the trial 

setting hearing, the court set the matter for mediation in January 2012, which was 

unsuccessful.

Thereafter, two early resolution conferences regarding A. and J. were held in April 

and May of 2012. On May 9, 2012, a referral was made to the Child Abuse and Neglect 

Center alleging that the mother had driven the children while she was impaired. Another 
11

unsuccessful mediation was held in June 2012. At that time, the Department changed its 

recommendation to recommending termination of reunification services for both A. and 

J. and the setting of a section 366.26 permanency planning hearing.

In August 2012, the juvenile court issued its order finding that ICWA did not 

apply to J. The matter then proceeded to trial regarding both A. and J. in September 

2012, as described below.

E. September 2012 Trial Regarding A. and J.

1. Trial Briefs

The Department stated in its trial brief that the statutory maximum time period for 

reunification services had expired as to both A. and J. and therefore the juvenile court‟s 

only options were (1) to return the children to the mother; or (2) terminate reunification 

services and set a section 366.26 permanency planning hearing. The Department asserted 

that the evidence would show that the return of A. and J. to the mother would be 

detrimental to their safety, protection, or physical or emotional well-being and therefore 

requested that the reunification services be terminated and a section 366.26 hearing be 

set.

The minor‟s counsel submitted a brief requesting that the juvenile court treat the 

trial as an 18-month hearing, find that return of A. and J. to the mother‟s home would 

create a substantial risk of detriment, terminate the mother‟s reunification services, and 

“clear [A.] and [J.] to be adopted by their long-term Foster Parents.” The minor‟s 

counsel stated: “Mother continues to display poor judgment, make poor decisions, ignore 

court orders, put her children in danger, and expose them to domestic violence.”

In her trial brief, the mother disagreed with the Department‟s recommendations. 

She asserted that the evidence was insufficient to show that return of A. and J. to her 

would create a substantial risk of detriment because she had substantially complied with 

her case plan and had alleviated the conditions that led to their removal. She sought 

immediate return of the children.
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2. Trial Stipulations

On the first day of trial, the juvenile court inquired about the delays in the case 

that had led to the expiration of the 18-month reunification periods for both A. and J. 

without all of the interim review hearings being held. By the trial‟s conclusion, the 

parties agreed that the only interim review hearing that had been held was A.‟s six-month 

review hearing.

The parties also agreed that the trial court would be conducting a combined 18-

month review hearing for A. and J. As to the issues to be determined at the hearing, the 

parties clarified that a trial issue was whether the court had the authority to extend 

reunification services for six additional months, as the mother contended. The trial court 

confirmed, after trial testimony concluded, that counsel had agreed that the trial was an 

18-month review that “essentially subsumed” the other interim review hearings.

The parties submitted a posttrial “Stipulated Factual and Procedural History” that 

outlined the juvenile dependency proceedings that had taken place with respect to the 

mother‟s five children, including A. and J. The stipulation stated that the 18-month 

period that ran from the time A. was taken into protective custody expired on December 

18, 2011, and that the 18-month period that ran from the time J. was taken into custody 

expired on August 23, 2012.

A brief summary of the testimony given at the eight-day September 2012 trial 

follows.

3. Trial Testimony

Priscilla Ribeiro

The Department‟s chief witness was Priscilla Ribeiro, a social worker who was 

assigned the case of A. and J. in December 2009. Her recommendation was that the 

juvenile court terminate reunification services to the mother and set a section 366.26 

permanency planning hearing for both children.
13

The basis for Ribeiro‟s recommendation was her opinion that the safety and wellbeing of A. and J. would be at risk if they were returned to the mother due to (1) the 

“long standing volatile relationship” between the mother and her oldest son, R., who 

lived with the mother; (2) the mother‟s long history of making poor decisions that placed 

her children at risk; and (3) the exposure to emotional abuse in the relationship between 

the mother and B.R., which was demonstrated by numerous incidents in which the police 

were called due to verbal and physical domestic violence.

Regarding R., Ribeiro had received information that physical and verbal 

altercations between the mother and R. had occurred, that R. had begun sleeping with a 

screwdriver under his pillow, and the mother had stated that she was concerned for her 

own safety in the home.

As to the mother‟s poor decisions, Ribeiro was particularly concerned about the 

May 9, 2012 incident in which the mother drove with A. and J. in the car even though 

she was under a court order not to drive since she did not have a driver‟s license. On that 

day, R. had an appointment at Community Solutions. The mother drove R. to the 

appointment with A. and J. in the car. While they were at the appointment, the 

Community Solutions intake worker noticed that the mother had fallen asleep and he had 

to wake her up during the intake process to ask her questions. Mother also slept while A. 

was flicking the lights on and off and J. was screaming. R. informed the intake worker 

that the mother sometimes fell asleep while driving him. When Ribeiro questioned the 

mother she denied that she had driven while she was feeling drowsy.

Another poor decision, according to Ribeiro, was the mother‟s decision to allow 

B.R. to have contact with the children, beginning in May 2010, in violation of a court 

order prohibiting him as a registered sex offender from having contact with all of the 

children except A. Contact with A. was allowed only if permitted by B.R.‟s parole 

officer.
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Ribeiro further testified that the most recent incidence of domestic violence 

between the mother and B.R. was the altercation in May 2011 in which B.R. killed the 

family‟s puppy. After that incident, the mother informed the Department that B.R. was 

no longer living in her home. However, the mother admitted to the social worker that 

B.R. had brought his laundry to her home and took showers and ate there. Also, several 

Department staff members had seen B.R. taking the trash out. Ribeiro was concerned 

that the mother had minimized the effect of the puppy killing on the children and had 

denied that any physical abuse took place during that incident, which contradicted her 

statements to police that B.R. had physically restrained her, spat on her, and thrown items 

at her.

The services provided to the mother by the Department have included services 

designed to address domestic violence in the home and substance abuse. The mother had 

completed a parenting without violence parent education class. She was also referred to 

an individual therapy program treating domestic violence after she was not allowed to 

return to group domestic violence counseling because she left early, was disrespectful, 

and was taking notes. The mother also underwent a domestic violence assessment.

However, the mother had not complied with the court‟s order in J.‟s case to 

participate in AA and/or NA meetings, to obtain a sponsor, to prepare a relapse 

prevention plan, and undergo a substance abuse assessment if there was a reasonable 

suspicion that she was abusing methadone or drugs. The mother informed Ribeiro that 

she could not participate in AA or NA because she was on methadone treatment and did 

not believe she was an addict.

Additionally, the mother was referred to and was participating in mental health 

counseling. She had also received the assistance of a parent advocate and a parent 

partner. The parent advocate supported the mother‟s participation in reunification 

services by, among other things, providing transportation to meetings and other services 

and assisting her to navigate the legal system. The parent partner helped the mother to 
15

utilize the services of Eastfield Ming Quong (EMQ) for R. and to parent R. Ribeiro met 

with the mother at least once a month and they had numerous telephone conversations, 

plus weekly visits when there were problems such as R. becoming “more volatile.”

The mother also had visitation with A. and J. while they were in foster care. By 

May 2012, Ribeiro had recommended to the juvenile court that A. and J. be returned to 

the mother‟s care. At that time, the mother was receiving services and R. “appeared to 

have settled a little bit more.” However, Ribeiro changed her recommendation to 

termination of reunification services after the May 9, 2012 incident in which the mother 

drove with R., A., and J. in the car when she was drowsy. Ribeiro explained that the 

incident “[could not] be taken in a vacuum. It was not just one single incident. It was 

the . . . most recent example of [the mother‟s] long history of making poor choices that 

places [the three children at risk of harm.]” There were also incidents in which the foster 

mother or a social worker had transported the children from daycare to the mother‟s 

home and had difficulty getting the mother to come to the door.

Ribeiro was also concerned that the mother had minimized the effects of being 

drowsy, had denied feeling drowsy while driving on May 9, 2012, and had stated that the 

Community Services intake worker lied about her being sleepy at the intake process. 

According to Ribeiro, the mother “has a long history of not providing accurate 

information to the Department, and based upon all the information that [Ribeiro] was 

receiving from the investigative narrative, as well as interviews and [her] own 

conversations with [the mother], [Ribeiro] did not believe that [the mother] was . . . 

providing [Ribeiro] with the truth.”

Further, Ribeiro determined that the mother had been provided with more than 

three years of numerous services, from “the parenting without violence to [domestic 

violence] services . . . and, yet, she still continues to make choices that places her 

children at risk, contrary to all the tools that she had been provided during the three years 

of services.” Ribeiro believed that the mother did not understand how her choices and 
16

behavior had impacted the children. It was also very significant to Ribeiro that A. and J. 

were toddlers who could not protect themselves when violent physical or verbal 

altercations occurred in the home.

Ribeiro did not agree with the mother‟s claim that Ribeiro had hindered her 

reunification with A. and J. by promoting adoption. Ribeiro is under a “concurrent 

mandate” to discuss concurrent planning with the parents when a child is removed from 

the home, meaning a discussion of what would happen to the children if they did not 

reunify with the parents. For that reason, she had discussed with the mother the 

possibility of adoption for A. and J.

The meeting at a restaurant in 2011 between the mother, Ribeiro, and the foster 

parents took place at the mother‟s request. Earlier, Ribeiro had told the mother that the 

foster parents were interested in adopting A. During the restaurant meeting, the mother 

told the foster parents that she had been talking with the bishop of her Mormon Church 

ward about adoption and she asked them questions about their religion and ethnicity. 

Ribeiro‟s only participation in the meeting was to stop the foster mother from disclosing 

too much personal information. Sometime later, the mother informed Ribeiro that she 

did not want to have A. adopted.

Robert Freitas

Robert Frietas is a case manager for Community Solutions, where his duties 

include handling the intake of new clients who are being provided with mental health 

and/or drug treatment services. On May 9, 2012, R. had a 10:00 a.m. intake appointment 

at Community Solutions.

Frietas spoke with the mother twice on the morning of the May 9, 2012 

appointment. At approximately 8:50 a.m., Freitas called the mother to confirm the 

10:00 a.m. appointment. The mother told him that she did not remember the 

appointment, but she could make it on time after picking up R. from school. She also 

said that she had her two younger children with her. At 10:20 a.m., Freitas called the 
17

mother again to find out if she was on her way. The mother responded that she was in the 

car and should not be driving with her two younger children, but she would be there as 

quickly as she could after picking up R. The mother did not ask to reschedule the 

appointment.

At 11:00 a.m., the mother arrived with R. and her two younger children, A. and J. 

When they arrived, the mother told Freitas that she was taking a “psych medication” that 

made her drowsy. The intake appointment then began with all of them sitting at a table. 

While Freitas was explaining the services to the mother and telling her what forms 

needed to be signed, the mother was falling asleep. While she was asleep, one of the 

younger children was dumping all the toys from the toy cabinet on the floor and flicking 

the lights on and off. The child in the stroller was crying and screaming.

Freitas would repeatedly wake the mother up, she would respond, and when 

Freitas looked down to fill out information in a form, she would fall asleep again. R. 

answered some of the questions and turned the lights back on after one of the younger 

children turned them off. Freitas took R. into another room to talk to him about his 

mother‟s behavior. R. told him that her medication made her drowsy and stated, 

“sometimes she nods off while she is behind the wheel at stop lights and stop signs, and I 

have to wake her up.”

Freitas then contacted his supervisor, who suggested that the mother have a friend 

or family member pick her up and told him to call police if the mother refused and left to 

get in her car. The supervisor also stated that they would need to file a Child Protective 

Services (CPS) report. Frietas informed the mother that it would not be safe for her to 

drive home and asked if she could find alternative transportation. The mother‟s response 

was that she would walk home. She also told Freitas that she did not have a driver‟s 

license and that R. did not have to wake her up when A. and J. are in the car. Freitas 

denied that he had told the mother that she was “ „on the nod,‟ ” which is a phrase used 

with regard to heroin addicts and has a negative connotation.
18

Sarah Stodghill Haggis

One witness, Sarah Stodghill Haggis, was called on behalf of the minors. Haggis 

has a master‟s degree in clinical psychology and is a licensed marriage and family

therapist. She is a clinical supervisor at Starlight Community Services and also contracts 

with the Dependency Advocacy Center, which represents parents and children. The 

minors‟ counsel retained her in this case. After voir dire, the juvenile court qualified 

Haggis as an expert in risk assessment services.

In this case, Haggis spoke with Ribeiro, the Department‟s social worker, as well as 

Amy Weingarten, the social worker retained by the mother‟s attorney. She also met with 

the mother three times. Haggis formed the opinion was that it would not be appropriate 

to return A. and J. to their mother at this time. Her opinion was based on the lack of 

consistent progress in visitation to unsupervised visitation; significant concerns about 

R.‟s “struggles with some emotional regulation issues” that were scary for young 

children; and the incident in which the mother drove with the children to Community 

Solutions, although there was a court order for her not to drive, and CPS was called 

because the mother was sleeping.

Haggis was concerned that the mother lacked the ability to make decisions in the 

best interests of her children, especially when she was under the stress of parenting two 

toddlers. She also pointed to the mother‟s relationships with men that involved domestic 

violence and the elements of domestic violence in her relationship with R., which 

indicated that the mother was making decisions that were not in the best interest of her 

children.

However, Haggis found that the mother‟s home was safe for the children and had 

age-appropriate activities and furniture, the mother had developed some insight, and she 

had a strong support system in her church. Haggis recommended that R. receive 

additional services, that the mother engage in “trauma-based individual work” due to her 

own history of trauma, and that A. and J. receive play therapy.
19

Amy Weingarten

Amy Weingarten is a licensed clinical social worker who works as a counselor for 

the Dependency Advocacy Center. She is employed by dependency attorneys, including 

the mother‟s attorneys in this case, and also works with the Department regarding the 

placement of dependent children. In this case, Weingarten has worked with the mother 

about two hours per week for the last two years. She has never observed the mother to be 

drowsy.

Weingarten wrote a May 2012 letter to the juvenile court and an August 2012 

addendum stating her conclusion that A. and J. should be returned to their mother‟s care. 

She believes that the mother has demonstrated tremendous emotional growth during the 

past two years, is open to services, and is bright and willing to work hard.

As to R., Weingarten recalled that she had seen the mother and R. “go at it a few 

times” when they were angry with each other. The mother had improved their dynamic 

by talking to R. more and being less angry. Weingarten was not aware that an issue had 

been raised as to whether the mother could safely parent A. and J. due to the risk of 

domestic violence. However, Weingarten was concerned about the effect on A. and J. of 

exposure to the verbally aggressive relationship between the mother and R.

The mother‟s consistent contact with B.R., the man who abused her, is not a 

concern to Weingarten. She believes that the mother can provide a safe home for all of 

her children if services are provided, including First Five services for A. and J. and 

family therapy. In her opinion, the Department has not provided sufficient reunification 

services “[b]ecause there have not been any services to reunite the family.” Weingarten 

also believes that Ribeiro had an adoption agenda.

Weingarten has experience as a methadone counselor and she would not 

recommend a 12-step program to a person receiving methadone maintenance because 

drug use of any kind would not be positively received in a 12-step program.
20

The Foster Mother

The foster mother has been the foster parent of A. since he was 10 months old and 

the foster parent of J. since he was four weeks old.

Regarding the events of May 9, 2012, the foster mother understood that at that 

time the Department had expanded the visitation schedule for A. and J. to allow two days 

of consecutive visits. On May 9, 2012, the foster mother received a telephone call from 

the mother, who was crying and upset and asked to be picked up from Community 

Solutions. The mother told the foster mother that she needed a ride home because 

someone at Community Solutions had said she had nodded off.

The mother initiated conversations with the foster mother about adoption, but prior 

to the May 2012 court date the mother had said she did not want to consider the foster 

parents as adoptive parents because her husband said he would divorce her if she gave up 

the children for adoption. The meeting with the mother at a restaurant during the summer

of 2011 occurred because Ribeiro, the social worker, called to tell the foster mother that 

the mother had requested a meeting with the foster parents. The mother asked the foster 

parent questions about their background, their family, and their religion. Ribeiro did not 

interrupt their conversation except to prevent the foster mother from giving out personal 

information about her address or where she worked. At present, the foster mother is 

willing and able to adopt both A. and J.

The foster mother had observed the mother to be drowsy three or four times. On 

one occasion, while the foster mother was conversing with the mother, the mother 

nodded off while she was holding baby J. On another occasion, the mother was asleep 

when the foster mother arrived to pick up A. and J. in the afternoon. Either F. or P. 

answered the door and took the foster mother to the mother‟s bedroom because they were 

having trouble waking her up. The foster mother found J. in the bed with the mother and 

A. with another brother on their bed. The foster mother also saw the mother nod off in 

the waiting room at a medical appointment for three or four minutes until she was woken 
21

up by the children. The mother also told the foster mother that A. had gotten into his 

older brother‟s medication while the mother was asleep.

Regarding the mother‟s driving, the foster mother recalled that the mother had 

asked for a car seat and the foster mother gave her one. Although the social worker had 

told the foster mother than the mother was not supposed to drive with the children in the 

car, the foster mother thought that was an issue between the mother and the social 

worker. The foster mother had seen A. and J. in the car with mother on three occasions. 

However, she never told the mother to go ahead and drive.

During the spring of 2012, A. returned to the foster home in an extremely agitated 

state, telling the foster mother that something had happened and saying the word “bitch.” 

The mother explained that there had been an altercation between herself and R. A. was 

also upset after an incident involving R. and the truancy officer. Following visitation 

with the mother, A. was sometimes upset and aggressive. When overnight visits with the 

mother started, A. did not want to go and on his return he would have nightmares and 

would not want to sleep in his own bed. He would also become clingy. These behaviors 

did not subside until the overnight visits ended.

The Mother

The mother began a methadone maintenance program about three years ago, when 

she was pregnant with A. On her own initiative, she went to the methadone clinic and 

began taking methadone as an alternative to taking pain medication during her 

pregnancy. She believes that the prescription pain medication had been over-prescribed 

for pain resulting from an earlier pregnancy, and although she was dependent on the pain 

medication, she did not abuse it. At the time of trial, the mother was taking methadone 

every morning at the methadone clinic and had been approved for two home dosages. 

After taking the methadone, she feels a lessening of her minor aches and pains. 

Methadone only makes her feel drowsy if the dosage is too high.
22

The mother is also under the care of Dr. Nguyen, a psychiatrist at Community 

Solutions. She currently takes a medication, Lexapro, that Dr. Nguyen has prescribed for 

depression. She also takes Trazodone to help her sleep. Before taking Lexapro, she took 

Cymbalta for her depression, beginning in March 2012. A side effect of Cymbalta was 

that she would fall asleep when she was at a movie or reading a book.

On May 6 or 7, 2012, the mother did not take Cymbalta because she had forgotten 

to refill her prescription. She noticed that she was not drowsy and decided not to take 

any the next day, May 8. Since the mother did not feel drowsy on May 8, she believed 

the drowsiness was caused by taking Cymbalta. However, she did take Cymbalta on 

May 9, 2012, because she did not want to stop the medication without talking to the 

doctor.

Regarding the events of May 9, 2012, the mother stated that the foster mother had 

unexpectedly dropped off A. and J. early that morning. The mother had to take A. and J. 

with her when she traveled to the methadone clinic that morning by light rail and bus. 

While she was getting her methadone dose, she received a call from Frietas, the intake 

person at Community Solutions, reminding her of the appointment that day for R. She 

asked Freitas if she could reschedule because she had A. and J. with her, but he told her it 

was not a good idea and would not look good for her. While the mother was going home 

on the light rail she received another call from Freitas wanting to know if she was still 

coming to R.‟s appointment. She was confused about the time of the appointment and 

thought it was later. The mother felt “very rushed” and that is when she decided to drive 

to the appointment. At that time, the mother had lost her driver‟s license due to unpaid 

traffic tickets.

The mother denied that she felt drowsy while she was driving R. to his 

appointment on May 9, 2012, with A. and J. in the car. She also denied that R. had to 

wake her up at any stop light. She did not feel drowsy until the middle of the intake 

appointment at Community Solutions, due to taking Cymbalta. The mother admitted that 
23

she had driven while drowsy on prior occasions when R. was in the car, but stated that 

she would pull over and rest or go home. She had also driven with A. and J. in the car on 

another occasion when she did not have a current driver‟s license, in order to take them to 

the aquatic center. The foster mother had given the mother a car seat and told the mother 

that she would have more time to spend with the children if she drove.

During the summer of 2011, the mother‟s bishop suggested that she consider 

allowing the foster parents to adopt A. and J. The mother told Ribeiro about the 

conversation and Ribeiro asked her if she would like to meet the foster parents and ask 

them questions. The mother agreed and during the meeting with the foster parents at the 

restaurant, Ribeiro made comments that the mother interpreted as a threat that if she did 

not agree to adoption, she would never see her children again. Later that summer, 

Ribeiro told the mother that Ribeiro herself was adopted and it “was the best thing that 

ever happened to her in her life.”

Regarding domestic violence, the mother believes that the Department has 

inaccurately characterized the domestic violence perpetrated by B.R. as physical when it 

was only emotional abuse. The incident in which B.R. killed the puppy occurred when 

B.R. came to the mother‟s home after he had been drinking and the mother pretended to 

call the police so that he would leave. B.R. got upset and put the puppy in a carrier. The 

mother screamed at him not to take the puppy and B.R. said, “ „You want the dog? Here 

is the dog,‟ ” and threw the dog at her. The dog died after it hit the wall instead of the 

mother. She called the police to make sure that the situation did not escalate. Although 

R. was not physically involved in the altercation, the mother felt bad because R. saw the 

puppy die.

The mother believes that the puppy‟s death was an accident and the incident does 

not constitute physical domestic violence. She has maintained contact with B.R. during 

the one and one-half years that he has been incarcerated with monthly telephone calls. 
24

She has also given him some money. However, about one week before this trial started, 

the mother filed for divorce.

As to the domestic violence involving R., the mother admitted that their 

relationship had gotten physical at times. About four years ago, an altercation occurred 

in which R. choked her and she scratched his arm. According to the mother, there have 

been no physical altercations with R. since that time. They have engaged in verbal 

altercations in which he called her a “bitch.” Another incident occurred when she called 

the truancy officer who came and put R., who was resisting the officer, in handcuffs 

while the younger boys were in the home. The mother was holding J. at the time, who 

cried. Another incident involved R. taking the car keys and threatening to leave. 

However, the mother believes that when R. threatened to kill his teacher, that was only a 

jest.

The mother also believes that Ribeiro is biased against her since she has been 

mentioning adoption “since day one.” In the mother‟s view, Ribeiro has hindered the 

return of A. and J. by demanding more information from the mother‟s counselor than the 

counselor is legally allowed to provide and insisting that EMQ not provide her with 

financial assistance to pay the traffic tickets and get her driver‟s license back. However, 

the mother acknowledged that she began having unsupervised visitation with A. and J. in 

March 2012 and that Ribeiro had recommended that they return home.

The mother also believes that the foster mother and Freitas lied during their 

testimony. The foster mother lied when she testified that the mother had fallen asleep 

twice in the foster‟s mother‟s presence and that the mother had asked for the car seat. 

Freitas lied when he testified that she was drowsy when she arrived for R.‟s appointment 

at Community Solutions and fell asleep during the intake process.

According to the mother, since she has been taking anti-depressant medication her 

moods have improved and she has been making better decisions. Her involvement in the 

Mormon Church has helped her self-image and given her a new family. She has also 
25

reduced her contact with B.R. while he is in prison by calling him to communicate about 

their children instead of visiting him.

Dr. Nguyen and Dr. Stephenson

Two physicians, Dr. Tao-Van Nguyen and Dr. Deborah Stephenson, testified on 

the mother‟s behalf.

Dr. Nguyen is a psychiatrist who has been treating the mother at the Community 

Solutions clinic since February 2012. He prescribed Cymbalta for treatment of the 

mother‟s depression, but on May 23, 2012, the mother complained of sleepiness during 

the daytime. Drowsiness is a side effect of Cymbalta. Dr. Nguyen changed the mother‟s 

prescription to a new medication, Lexapro, which has fewer side effects. He also 

prescribed Trazodone for the mother‟s insomnia. Dr. Nguyen is not aware of any 

potential side effects due to the mother combining antidepressant medication with 

methadone treatment. He would not prescribe methadone for pain management because 

of the potential for abuse of the drug.

Dr. Stephenson is board-certified in addiction medicine and is employed by the 

Santa Clara County Department of Alcohol and Drug Services. She has been prescribing 

methadone for the mother for approximately three years. In Dr. Stephenson‟s opinion, 

methadone treatment is restricted to people who meet the criteria for opioid dependence. 

In addition to taking methadone, a methadone treatment program involves counseling. 

Participation in recovery activities, such as a 12-step group, could be helpful. However, 

it is unusual for a patient to wean off methadone treatment and they are not encouraged to 

do so because it is very high risk. A patient on methadone can live a normal life and the 

treatment does not cause birth defects. Sedation is a side effect of methadone if the 

dosage is too high. Methadone may be prescribed for pain management only by a private 

physician outside the opioid treatment program.

The mother started methadone treatment due to dependence on prescription drugs 

and currently takes a daily methadone dose. During the past four months, she has been 
26

given some doses to take at home. Dr. Stephenson has not observed any interaction 

between the mother‟s methadone treatment and her Lexapro antidepressant medication. 

The mother discussed her drowsiness with Dr. Stephenson sometime within the past six 

months.

Jed Dyreng and Charles Thomas Wear

Two Mormon Church members, Jed Dyreng and Charles Thomas Wear, testified 

on the mother‟s behalf. Dyreng is the bishop in charge of a local Mormon Church 

congregation known as a ward and has a leadership role over the mother, whom he has 

known since December 2011. The mother is a regular churchgoer and she has also 

participated in the church by teaching children and supervising female church members‟ 

monthly visits with each other. Bishop Dyreng has also asked the mother to assist 

individual church members who needed help, which she has done. Dyreng believes that 

that the mother is very capable and concerned about her children. He has met all of her 

children except A. and J.

The Mormon Church has assisted the mother financially and R. has attended the 

church‟s scout camp. Bishop Dyreng had a positive experience with R. when he took 

him to buy clothing. On one occasion the mother called Bishop Dyreng for assistance 

when R. was arguing with her and she felt trapped. However, R. was asleep when the 

bishop and his wife arrived at the mother‟s home. In Bishop Dyreng‟s opinion, the 

mother takes very good care of her children and could take care of all five of them.

The mother asked Wear to testify as a character witness. He has known the 

mother for about two and one-half years through the Mormon Church, where he was her 

“home teacher.” As a home teacher, Wear‟s role is to visit a family regularly to nurture 

and to teach. If there is an incident or crisis in the family, the home teacher makes a 

report to church leadership. Wear began visiting the mother‟s family as their home 

teacher shortly after A. was removed from the home. He served as their home teacher for 

about 10 to 12 months. He never observed the mother to be drowsy.
27

After A. was removed, Wear attended a proceeding about A. where he was 

shocked that the proceeding was about adoption. The church was willing to help the 

mother with A. but the offer was rejected. Wear believes that the mother is a very 

nurturing mother to A. He observed that R. was “an angry child” who has raised his 

voice to the mother on multiple occasions, to which she responded calmly.

R. and F.

Called as a witness on his mother‟s behalf, R., a high school sophomore, testified 

that he was attending school, doing okay, and his life was better now than a year ago. 

The mother is a good mom because there is a roof over their heads and she feeds them. 

His younger brothers F. and P. visit on weekends and he attends supervised visits with A. 

and J. R.‟s physical altercations with his mother include pushing her once when they 

were fighting.

R. denied telling Freitas at Community Solutions that his mother had fallen asleep 

while driving. There were times when he was in the car with his mother and she closed 

her eyes for a second at a stop light and he tapped her to wake up. She never did that 

when A. and J. were in the car, however. His mother is “mostly awake” and taking care 

of things with the children.

F., age 11, also testified on his mother‟s behalf. He and P., age 10, spend the night 

with their mother every weekend. He has a lot of fun playing video games and horsing 

around with R. He is not afraid that R. will hurt him. His mother and R. have arguments, 

most recently a few days ago. R. was angry and stormed off to his room. F. has heard R. 

call his mother names.

F. testified that after the foster mother gave his mother a car seat, they drove to the 

aquatic center. The mother does not drive with F. in the car any more.

F. Statement of Decision

After issuing a proposed statement of decision and receiving the mother‟s 

objections, the juvenile court filed its statement of decision and order on March 8, 2013. 
28

The court ruled that (1) the Department had met its burden to show by a preponderance of 

the evidence that there is substantial risk of detriment to A. and J. if they are returned to 

the care of either parent; (2) the Department had demonstrated by clear and convincing 

evidence that reasonable services were provided; and (3) neither parent fell within any of 

the exceptions allowing for the extension of reunification services beyond 18 months 

from protective custody. The court therefore ordered that reunification services be 

terminated and set a section 366.26 permanency planning hearing. The court‟s factual 

findings in support of its rulings are briefly summarized below.

1. Reasonableness of Reunification Services

First, the court addressed the reasonableness of the reunification services that the 

Department had provided. Responding to the mother‟s contention that she has been 

deprived of meaningful review hearings for A. and J., contrary to legislative intent, the 

court noted that the parties had stipulated that the only review hearing that had taken 

place was the six-month review hearing for A.

However, relying on the decision in Denny H. v. Superior Court (2005) 131 

Cal.App.4th 1501 (Denny H.), the court rejected the mother‟s contention that she had 

been deprived of meaningful review hearings and ruled as follows: “It is evident from 

the extensive procedural history . . . that the parties have had substantial contact with the 

court and services offered by the Department. There were frequent court appearances 

which provided the parties an opportunity to communicate and address issues as they 

arose both informally and through mediation and ERC. These events took place during 

the statutory time period where reunification services would be addressed albeit through a 

somewhat different procedure. This case does not present a situation where Mother and 

Father were deprived of services or access to the court—or where they were unaware of 

the Department‟s expectations or ongoing concerns. Moreover, there was no indication 

that there was any opposition to the delays in the review process. Accordingly, the court 
29

treats the trial of this matter as an 18-month hearing of [A.] and [J.] governed by . . . 

section 366.22.”

The court also found that there was no evidentiary support for the mother‟s 

contention that the social worker had an inappropriate “ „adoption agenda‟ ” and ruled 

that the Department met its burden of establishing by clear and convincing evidence that 

reasonable reunification services had been offered to the parents. The court found that 

“[t]he services provided by the Department were tailored to Mother‟s needs, and were 

also adjusted to specifically accommodate her—as evidenced by the Department offering 

Mother one-on-one domestic violence counseling when she had problems getting along 

with her domestic violence facilitator due to what was perceived as a disruptive attitude 

and behavior in a group counseling setting.”

2. Substantial Risk of Detriment

The court ruled that the Department met its evidentiary burden to show that return 

of A. and J. to the mother would create a substantial risk of detriment to their safety, 

protection, or physical or emotional well-being, based on the court‟s findings with respect 

to domestic violence, substance abuse treatment, and the mother‟s conduct in driving 

while drowsy on a suspended driver‟s license.

Domestic Violence Findings

The court found that the relationship between the mother and R. remained volatile 

and “given Mother‟s minimization of the risks posed by exposing her very young 

children to this volatility, return of toddlers [A.] and [J.] to that home environment would 

place them at risk of both physical and emotional harm.” Further, the court found that the 

evidence regarding the incident in which their father, B.R., killed the family‟s puppy 

showed that the mother did not have a realistic appreciation of the seriousness of the 

event and its impact on the children. The mother also continued to have contact with 

B.R., even after his physical and verbal abuse, and allowed him to have contact with her 

children in violation of a court order. The court found valid the social worker‟s 
30

assessment that the mother did not understand domestic violence and would not be able 

to prevent it the future.

Substance Abuse Treatment

The court found that the mother began methadone treatment as a result of her 

“addiction to painkillers, for which she faults over-prescribing doctors.” The mother did 

not comply with the court‟s orders in J.‟s case that she attend AA/NA meetings, obtain a 

sponsor, and participate in a substance abuse assessment or develop an aftercare relapse 

prevention plan. Rejecting the mother‟s contention that she did not need a substance 

abuse program because she was using legally prescribed medication, the court found that 

“this argument completely overlooks the fact that she sought Methadone treatment in the 

first place due to her dependency on the opioid-based painkiller, Norco.”

Further, the court found it significant that the mother continued to fail to recognize 

a substance abuse problem or to comply with court-ordered substance abuse treatment 

even after the incident of May 9, 2012, when she drove drowsy with the children in the 

car. The court concluded, “[t]he persuasive weight of the evidence . . . supports the need 

for and reasonableness of the court-imposed substance abuse/relapse prevention 

conditions with which Mother undisputedly failed to comply. . . . [I]f for no other 

purpose than to better understand the potential effects of taking multiple medications 

contemporaneously.”

Driving While Drowsy with a Suspended Driver’s License

The court found that the mother had admitted to driving with R., A. and J. 

although she did not have a valid driver‟s license and was violating a court order not to 

drive without a valid driver‟s license and insurance. The court also found credible 

Freitas‟ testimony that R. told him, during the Community Solutions intake interview, 

that the mother had been dozing off during the May 9, 2012 drive to Community 

Solutions, that her medication made her drowsy, and R. sometimes had to wake her up at 

stop lights and stop signs.
31

The court further found that “Mother‟s testimony left the impression that she felt it 

was okay for her to rest her eyes by closing them at a red light if [R.] was in the car—but 

not when the two youngest children were passengers. At trial, Mother did not convey a 

genuine appreciation that such conduct was unsafe. Apart from the issue of Mother‟s 

drowsiness, her decision to drive the children without a driver‟s license on May 9th was, 

in the words of Minor‟s Counsel . . . , “. . . just the most recent example of Mother‟s long 

history of poor choices.‟ ”

The court also stated: “The May 9, 2012 incident demonstrates that [A.] and [J.] 

are at risk of more than a mere possibility of harm. This incident is significant not only 

because it created a perilous situation for [A.] and [J.]—and [R.], but it also serves to 

underscore Mother‟s continued unwillingness to be accountable for her actions or accept 

in a meaningful way responsibility for the impact of her actions on her children‟s 

physical safety. Mother‟s reaction both minimized the incident and put blame on 

someone else for its occurrence. . . . [¶] On multiple occasions, Mother‟s conduct has 

had the effect of sacrificing her children‟s physical safety and emotional welfare in favor 

of her own immediate needs.” 

G. Findings and Orders

The juvenile court issued its findings and orders on March 8, 2013, adopting all of 

the findings in the statement of decision and terminating reunification services and setting 

a section 366.26 permanency planning hearing. The court also denied the mother‟s

request to extend family reunification services to the mother under section 352 as there 

was no showing of good cause or any special circumstances to justify the extension.

H. The Mother’s Writ Petition

The mother filed a petition for writ of mandate pursuant to California Rules of 

Court, rule 8.452,4in which she seeks a writ directing the juvenile court to vacate its 

 

4 All further references to rules are to the California Rules of Court.
32

orders of March 8, 2013, and to issue new orders either (1) returning A. and J. to her and 

providing her with family maintenance services; or (2) providing her with additional 

family reunification services. The mother contends that the trial court erred in setting a 

section 366.26 permanency planning hearing because there is no substantial risk of 

detriment in returning the children to her since (1) she has complied with the case plan; 

(2) there is no substantial evidence of domestic violence; (3) there is no substantial 

evidence that she has a substance abuse problem; and (4) there “have not been enough 

hearings” to support the finding of detriment.

III. DISCUSSION

Before evaluating the mother‟s contentions, we will provide an overview of the 

statutory requirements for the 18-month review hearing.

A. 18-Month Review Hearing

“When a child is removed from a parent‟s custody, the juvenile court ordinarily 

must order child welfare services for the minor and the parent for the purpose of 

facilitating reunification of the family. (§ 361.5, subd. (a).)” (Tonya M. v. Superior 

Court (2007) 42 Cal.4th 836, 843 (Tonya M.).) In Tonya M., the California Supreme 

Court outlined the statutory scheme for providing reunification services, where, as here, 

the child was less than three years of age when removed from the parent‟s custody. (Id. 

at p. 845.)

“The dependency scheme sets up three distinct periods and three corresponding 

distinct escalating standards for the provision of reunification services to parents of 

children under the age of three. During the first period, which runs from roughly the 

jurisdictional hearing (§ 355) to the six-month review hearing (§ 366.21, subd. (e)), 

services are afforded essentially as a matter of right (§ 361.5, subd. (a)) . . . (§ 361.5, 

subd. (b)).” (Tonya M., supra, 42 Cal.4th at p. 845, fn. omitted.)

“During the second period, which runs from the six-month review hearing to the 

12-month review hearing (§ 366.21, subd. (f)), a heightened showing is required to 
33

continue services. So long as reasonable services have in fact been provided, the juvenile 

court must find „a substantial probability‟ that the child may be safely returned to the 

parent within six months in order to continue services. (§ 366.21, subd. (e).)” (Tonya 

M., supra, 42 Cal.4th at p. 845.)

“During the final period, which runs from the 12-month review hearing to the 18-

month review hearing (§ 366.22), services are available only if the juvenile court finds 

specifically that the parent has „consistently and regularly contacted and visited with the 

child,‟ made „significant progress‟ on the problems that led to removal, and 

„demonstrated the capacity and ability both to complete the objectives of his or her 

treatment plan and to provide for the child‟s safety, protection, physical and emotional 

well-being, and special needs.‟ (§ 366.21, subd. (g)(1)(A)-(C).) The effect of these 

shifting standards is to make services during these three periods first presumed, then 

possible, then disfavored. Additionally, because at each subsequent review hearing the 

court is statutorily obligated to reevaluate the propriety of future services under the new 

applicable standard for that hearing (§§ 361.5, subds. (a), (b), 366.21, subds. (e)-(g)), 

juvenile courts lack the authority to order services extending beyond the next review 

hearing.” (Tonya M., supra, 42 Cal.4th at p. 845.)

Thus, “[t]he absolute maximum period for services is 18 months (§ 361.5, 

subd. (a)), provided the court determines at both a six-month review hearing and a 12-

month review hearing that continuation of services is warranted [citations].” (Tonya M., 

supra, 42 Cal.4th at p. 843.) By statute, the 18-month permanency review hearing must 

occur “within 18 months of the date the child was originally taken from the physical 

custody of his or her parent or legal guardian.” (§ 366.21, subd. (g)(1).) At the 18-month 

review hearing, “the court shall order the return of the child to the physical custody of his 

or her parent or legal guardian unless the court finds, by a preponderance of the evidence, 

that the return of the child to his or her parent . . . would create a substantial risk of 

detriment to the safety, protection, or physical or emotional well-being of the child. The 
34

social worker shall the burden of establishing detriment.” (§ 366.22, subd. (a); 

rule 5.720.)

Accordingly, “ „[a]bsent extraordinary circumstances, the 18-month review 

hearing constitutes a critical juncture at which “the court must return children to their 

parents and thereby achieve the goal of family preservation or terminate services and 

proceed to devising a permanent plan for the children.” [Citations.]‟ [Citation.] At this 

point, „the focus of a dependency proceeding shifts to the child‟s needs for permanency 

and stability.‟ [Citation.]” (V.C. v. Superior Court (2010) 188 Cal.App.4th 521, 529.)

In the present case, the parties stipulated that the 18-month review period for both 

A. and J. had expired before the September 2012 trial took place. The parties also agreed 

at the time of trial that the September 2012 trial would be a combined 18-month review 

hearing for A. and J. that “essentially subsumed” the 6-month and 12-month review 

hearings that had not taken place. The mother nevertheless contends in her writ petition 

that her due process rights were violated because “no 12-month or 18-month reviews 

were held for [A.] and no six-month, 12-month or 18-month reviews were conducted for 

[J.].” We disagree, since the record reflects that the mother never objected to any of the 

continuances that caused the absence or delay of the interim review hearings in this case.

Our determination is based on section 352, subdivision (c), which provides: “In 

any case in which the parent . . . or minor is represented by counsel and no objection is 

made to an order continuing any such hearing beyond the time limit within which the 

hearing is otherwise required to be held, the absence of such an objection shall be deemed 

a consent to the continuance.” Since the mother was represented by counsel and never 

objected, under section 352, subdivision (a) she is deemed to have consented to the many 

court orders in this case that continued the review hearings originally set for A. and J. 

Moreover, where, as here, the review hearings were continued beyond the maximum 18-

month reunification period, it has been held that the delayed hearing becomes the 18-

month permanency review hearing. (Denny H., supra, 131 Cal.App.4th at p. 1509; see 
35

also Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1420 [12-month review 

hearing was continued and heard with 18-month review hearing]; In re Brian R. (1991) 

2 Cal.App.4th 904, 918 [12-month review hearing became 18-month hearing by virtue of 

passage of time] The trial court therefore did not err in conducting the September 2012 

trial as the 18-month permanency review hearing for both A. and J. under section 366.22.

We therefore turn to the mother‟s substantial evidence challenge to the trial court‟s 

finding at the 18-month review hearing that the return of the A. and J. to their mother 

would create a substantial risk of detriment to their safety, protection, or physical or 

emotional well-being of the child.

B. Substantial Risk of Detriment

1. Legal Standard

As we have noted, section 366.22, subdivision (a) generally requires the juvenile 

court at the 18-month review hearing to return the child to the custody of the parent 

unless the court determines, by a preponderance of the evidence, that return of the child 

would create a substantial risk of detriment to the child‟s physical or emotional wellbeing. (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1400 (Yvonne W.).) “In the 

absence of substantial evidence showing such detriment, the court is required to return 

the minor to parental custody. [Citation.]” (Id. at p. 1401.)

“The standard for showing detriment is „a fairly high one. It cannot mean merely 

that the parent in question is less than ideal, did not benefit from the reunification 

services as much as we might have hoped, or seems less capable than an available foster 

parent or other family member.‟ [Citation.] Rather, the risk of detriment must be 

substantial, such that returning a child to parental custody represents some danger to the 

child‟s physical or emotional well-being. [Citations.]” (Yvonne W., supra, 165 

Cal.App.4th at p. 1400.)

In determining whether it would be detrimental to return the child to the parent at 

the 18-month review, the juvenile court must consider whether the parent participated 
36

regularly in and made substantial progress in a court-ordered treatment program, the 

“efforts or progress” of the parent, and the “extent” to which the parent “availed himself 

or herself of services provided.” (§366.22, subd. (a); Jennifer A. v. Superior Court 

(2004) 117 Cal.App.4th 1322, 1341 (Jennifer A.).) “The failure of the parent . . . to 

participate regularly and make substantive progress in court-ordered treatment programs 

shall be prima facie evidence that return would be detrimental.” (§ 366.22, subd. (a).)

This court reviews the record to determine whether substantial evidence supports 

the juvenile court‟s finding that a child would be at substantial risk of detriment if 

returned to the parent‟s custody. (Yvonne W., supra, 165 Cal.App.4th at p. 1400-1401.) 

“[W]e consider the evidence favorably to the prevailing party and resolve all conflicts in 

support of the trial court‟s order. [Citation.]” (Id. at p. 1401.) Moreover, “[i]t is the trial 

court‟s role to assess the credibility of the various witnesses, [and] to weigh the evidence 

to resolve the conflicts in the evidence. We have no power to judge the effect or value of 

the evidence, to weigh the evidence, to consider the credibility of witnesses or to resolve 

conflicts in the evidence or the reasonable inferences which may be drawn from that 

evidence. [Citations.]” (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) “The 

appellant has the burden of showing there is no evidence of a sufficiently substantial 

nature to support the finding or order. [Citations.]” (In re Dakota H. (2005) 132 

Cal.App.4th 212, 228 (Dakota H.).)

2. Domestic Violence

The mother contends that the juvenile court‟s finding that A. and J. would be at 

substantial risk of detriment if returned to her custody is not based on substantial 

evidence. First, the mother argues that there is no substantial evidence to support the trial 

court‟s findings that A. and J. would be at risk due to their exposure to domestic violence 

in the home between her and R., her continued relationship with her abuser, and her 

minimization of and lack of understanding of the impact of domestic violence on young 

children. According to the mother, the evidence showed that R. had unsupervised 
37

visitation with his younger brothers F. and P. and has not harmed them; R.‟s relationship 

with her has improved; she has taken parenting classes and learned to handle R. better; 

and additional supervised visitation and reunification services would be a less restrictive 

manner of reducing any risk posed by R. to A. and J. The mother also argues that the 

evidence showed, contrary to the trial court‟s finding, that she understands and does not 

minimize the effect of domestic violence on children.

We find that substantial evidence supports the trial court‟s findings regarding the 

detrimental effect of domestic violence on A. and J. if they were to be returned to the 

mother‟s custody. As one appellate court has stated, “ „ “D]omestic violence in the same 

household where the children are living . . . is a failure to protect [the children] from the 

substantial risk of encountering the violence and suffering serious physical harm or 

illness from it.” [Citation.] Children can be put “in a position of physical danger from 

[spousal] violence” because, “for example, they could wander into the room where it was 

occurring and be accidentally hit by a thrown object, by a fist, arm, foot or leg . . . .” 

[Citation.]‟ [Citation.]” (In R.C. (2012) 210 Cal.App.4th 930, 941-942.)

Here, the evidence showed that the mother lacked the ability to provide a violencefree home for A. and J. The mother and R., a teenager, had a longtime volatile 

relationship in the home that involved physical and verbal abuse, such that the mother 

had been afraid of him and had called for assistance from a truancy officer and her church 

bishop; the mother had continued her relationship with B.R., A. and J.‟s father, even after 

he physically and emotionally abused her and killed the family‟s puppy while in a rage; 

the mother had allowed B.R. to have contact with her children in violation of a court 

order prohibiting him from contact with children as a registered sex offender; and the 

mother consistently minimized the domestic violence that had occurred in her household 

despite receiving services specifically directed to domestic violence, including parenting 

without violence education and individual domestic violence counseling. As the minors 

in their brief state, “[I]t is not [R.] that presents a bar to [A.] and [J.] returning home; it is 
38

Mother‟s continued inability to provide a violence free home for them.” Thus, even 

assuming that the mother has generally complied with her case plan, there is substantial 

evidence that she has not progressed sufficiently to ameliorate the domestic violence in 

her household. (See., e.g., In re Dustin R. (1997) 54 Cal.App.4th 1131, 1141-1143.)

Further, it cannot be disputed, as the trial court found, that A. and J. are toddlers 

who would not be able to protect themselves from domestic violence. The detrimental 

effect of domestic violence was already apparent in A., who, the foster mother testified, 

was upset after being exposed to the mother and R.‟s altercations.

In short, the mother‟s arguments regarding domestic violence lack merit because 

they depend upon the mother‟s view of the evidence. However, we uphold the court‟s 

findings if they are “supported by substantial evidence, even though substantial evidence 

to the contrary also exists and the trial court might have reached a different result had it 

believed other evidence. [Citation.]” (Dakota H., supra, 132 Cal.App.4th at p. 228.)

3. Substance Abuse

The mother argues that there was not substantial evidence to support the juvenile 

court‟s finding that there was a risk of detriment to A. and J. in returning them to the 

mother‟s custody because she did not comply with the court‟s orders in J.‟s case that she 

participate in a substance abuse treatment program, even after the incident of May 9, 

2012, when the mother drove with R., A., and J. in the car while she was experiencing 

drowsiness as a side effect of her medication. The mother asserts that the juvenile court 

inconsistently required her to participate in substance abuse programs in A.‟s case, but 

not in J.‟s case. She also argues that the evidence shows that she does not have a 

substance abuse problem since she “has never tested dirty once” for illegal substances 

during the juvenile dependency cases and she has maintained sobriety. The mother also 

relies on the decision in Jennifer A., supra, 117 Cal.App.4th 1322 for the proposition that 

there is not substantial evidence of a drug problem where the parent has not been 

diagnosed as having a substance abuse problem.
39

The Department disagrees, noting that section 366.22, subdivision (a) provides 

that “[t]he failure of the parent . . . to participate regularly and make substantive progress 

in court-ordered treatment programs shall be prima facie evidence that return would be 

detrimental.” (§ 366.22, subd. (a).) It is undisputed that the mother expressly declined to 

participate in the court-ordered substance abuse treatment program in J.‟s case because 

she did not believe that she had a substance abuse problem. Under section 366.22, 

subdivision (a), therefore, the mother‟s refusal constitutes prima facie evidence that 

return of A. and J. to her custody would be detrimental.

Moreover, substantial evidence supports the juvenile court‟s finding that, due to 

the mother‟s use of legal drugs and her refusal to participate in the court-ordered drug 

treatment programs, there would be a substantial risk of detriment to A. and J. in 

returning them to the mother‟s custody. The incident of May 9, 2012, is a significant 

example of the detriment resulting from the mother‟s legal drug use. On that day, the 

mother, who did not have a driver‟s license, drove her car to R.‟s Community Solutions 

appointment with A. and J. as passengers although she was experiencing drowsiness as 

a side effect of taking Cymbalta. R. had to wake her up at stop signs and stop lights, 

and she was too drowsy during the Community Solutions intake process to stay awake 

and to pay attention to A., who was dumping all the toys and turning the office lights on 

and off, or to J., who was crying. Also during the daytime, the mother had dozed off 

more than once in the presence of the foster mother and on another occasion had to be 

roused from sleeping when the foster mother arrived to pick up A. and J. Substantial 

evidence therefore supports the juvenile court‟s finding that “[t]he persuasive weight 

of the evidence . . . supports the need for and reasonableness of the court-imposed 

substance abuse/relapse prevention conditions with which Mother undisputedly failed to 

comply. . . . [I]f for no other purpose than to better understand the potential effects of 

taking multiple medications contemporaneously.”
40

4. Lack of Interim Hearings

Finally, the mother contends that “there have not been enough hearings” to 

support the finding of substantial detriment if A. and J. are returned to her care. She 

explains that the interim review hearings for A. and J. did not take place in a timely 

fashion in A.‟s case or at all in J.‟s case; the case plans for A. and J. were inconsistent, 

which gave the mother “a mixed message”; she had reunification services for “an 

unheard of thirty four months”; and the Department “has varied their position a number 

of times on whether or not to return the children to Mother‟s care.” The mother does not 

challenge the juvenile court‟s finding that the Department provided reasonable 

reunification services to her.

We understand the mother to argue that there were procedural irregularities in the 

cases of A. and J., since not all interim review hearings were held, that preclude a finding 

of substantial detriment under section 366.22, subdivision (a). This argument is not 

convincing. We reiterate that section 352, subdivision (c), provides that “[i]n any case in 

which the parent . . . or minor is represented by counsel and no objection is made to an 

order continuing any such hearing beyond the time limit within which the hearing is 

otherwise required to be held, the absence of such an objection shall be deemed a consent 

to the continuance.” As we have discussed, it is undisputed that the mother did not object 

to any of the orders continuing the interim review hearings in the cases of A. and J.; 

therefore, under section 352, subdivision (c), the mother is deemed to have consented to 

the continuances. The mother also agreed at the time of trial that the September 2012 

trial would be conducted as the 18-month permanency review hearing under 

section 366.22.

Thus, the issue properly before us is whether, at the 18-month permanency review 

hearing held in September 2012, substantial evidence supports the juvenile court‟s 

finding that return of A. and J. to the mother would create a substantial risk of detriment 

to their physical or emotional well-being. (See Yvonne W., supra, 165 Cal.App.4th at 
41

p. 1400.) Having determined that substantial evidence supports the juvenile‟s finding of 

detriment, and there being no challenge to the reasonableness of the reunification services 

provided to the mother, we conclude that the trial court did not err in terminating the 

mother‟s reunification services and setting a section 366.26 permanency planning hearing 

for A. and J. Having reached this conclusion, we will deny the mother‟s writ petition 

without addressing the issue of whether the juvenile court erred in denying the mother‟s 

request for a continuance of the 18-month permanency review hearing and the extension 

of reunification services. (§ 366.22, subd. (b); § 352.) We will also deny her stay request 

as moot.

IV. DISPOSITION

The petition for writ of mandate is denied. The request for a stay of the Welfare 

and Institutions Code section 366.26 hearing, presently set for July 3, 2013, is denied as 

moot.

___________________________________________

BAMATTRE-MANOUKIAN, J.

WE CONCUR:

__________________________

ELIA, ACTING P.J.

__________________________

MIHARA, J.