1

Filed 7/19/13 In re E.L. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIRST APPELLATE DISTRICT

DIVISION FIVE

In re E.L. et al., Persons Coming Under 

the Juvenile Court Law.

MARIN COUNTY HEALTH AND 

HUMAN SERVICES DEPARTMENT,

Plaintiff and Respondent,

v.

MONIQUE L.,

Defendant and Appellant.

 A136428

 (Marin County

 Super. Ct. Nos. JV25469A,

 JV25470A, JV25471A)

Monique L. (Mother) appeals from orders entered after the Marin County juvenile 

court sustained a Welfare and Institutions Code section 3871supplemental petition filed 

by respondent Marin County Health and Human Services Department (the Department). 

The juvenile court found its previous disposition had been ineffective in protecting 

Mother‟s three children, E, S, and N (collectively “Minors”), and it ordered them 

removed from Mother‟s custody. E and N were placed with their maternal grandmother, 

L.T. (Grandmother), while S was placed with his father, Kenneth C. (Father).2

 

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

2 Mother‟s three children all have different fathers. 
2

Mother challenges a number of the juvenile court‟s findings as unsupported by the 

evidence. We have reviewed the evidence in the record and conclude it adequately 

supports the juvenile court‟s orders. Accordingly, we will affirm.

FACTUAL AND PROCEDURAL BACKGROUND3

The Department filed the first petition in this case in November 2011, by which 

time it had already received seven referrals regarding the family. The Department 

entered into an informal agreement with Mother that Minors would attend school 

regularly and meet with a dentist, and it referred Mother to agencies for assistance with 

rent and furnishing her home. 

The Department received three further referrals, including allegations that S, who 

was then six years old, was wandering the streets alone rather than attending school and 

that Minors were not regularly fed or supervised during the day. During a visit by a 

Department social worker, Mother could not account for S‟s whereabouts. Additional 

referrals alleged S was stealing food from school and that Minors were exposed to drug 

use, because Mother was using substances with strangers in her home. Minors all had 

poor school attendance, which was an obstacle to their receipt of services. 

After a home visit on November 10, 2011, during which the social worker saw a 

man who appeared to be under the influence of drugs upstairs in the home with Minors, 

the Department filed a petition alleging Minors were at substantial risk of physical harm 

or illness. Mother submitted to court-mandated services, and the juvenile court ordered 

her to attend parenting education. Minors were not detained and continued to reside with 

Mother in Marin City. 

At the jurisdictional hearing, both Mother and Father submitted to jurisdiction, and 

the juvenile court found true the allegations of the petition. The court explained its 

concerns to Mother: “[W]e want to make sure that the children get to school on time; that 

 

3

In this section, we set forth the essential factual and procedural history of the case. 

Additional facts relevant to the issues Mother raises are included in the discussion section 

of this opinion.
3

they are properly fed; that they are properly cared for; that they don‟t miss school; that 

you are living in a clean and sober environment.” 

Mother had tested positive for cocaine and opiates in October 2011, and although 

the Department asked Mother to take another drug test prior to filing the petition, Mother 

failed to do so. It had also referred Mother to Center Point, a residential drug treatment 

center, for a drug and alcohol assessment, but Mother did not respond to Center Point‟s 

messages and did not complete the intake process to initiate drug testing. In its 

February 15, 2012 dispositional report, the Department stated Mother was resistant to 

providing additional drug tests. According to the report, Mother believed “that she is still 

young and wants to have fun, and does not think it is problematic to experiment with 

substances when the children are in the care of others.” Mother was not concerned about 

Minors‟ exposure to drugs and drug paraphernalia. The report noted Mother still had not 

followed through on drug testing at Center Point or on appointments with CalWorks, a 

parent advocate, or the assigned family therapist. 

Mother was at risk of losing the family‟s subsidized housing due to nonpayment of 

rent, and she had difficulty keeping food in the house despite receiving food assistance. 

The Department provided Mother with a list of food banks and distribution centers in 

Marin County and gave her a Safeway card to help her get through the month. In 

addition to the problems with housing and food, all three Minors were in need of medical 

and dental care. 

At the dispositional hearing, Mother and Father submitted. Father was granted 

unsupervised visitation with S. The juvenile court ordered family maintenance services 

to Mother as set forth in the Department‟s case plan. Mother‟s case plan included 

requirements that she learn to develop a budget and to shop within her means and that she 

stay free from illegal drugs and comply with all required drug tests. 

On May 7, 2012, Mother received an eviction notice and reported windows had 

been broken in her residence. Minors called Grandmother to come get them, and they 

moved to her home in Oakland. Mother stayed in Marin City and later moved in with her 

aunt in Hayward. 
4

Also on May 7, the Department filed a section 388 petition requesting a change in 

Mother‟s case plan to include court-ordered inpatient drug and alcohol treatment at 

Center Point. The Department‟s request came after Mother had had two positive drug 

tests and then failed on three occasions to provide urine samples. Mother was also

inconsistent with her and her children‟s appointments and was not meeting the goals of 

her case plan. Mother remained unable to keep Minors supplied with food, and Minors 

were losing access to services because of continued poor school attendance. Two days 

after the Department filed the section 388 petition, the social worker informed Mother 

there was an opening for her at Center Point. Mother scheduled an appointment with the 

program but did not keep it. 

At the May 14, 2012 hearing on the petition, the Department indicated its 

willingness to allow Minors to stay with Grandmother through the week without a 

detention order on the condition that Mother enter Center Point. The juvenile court 

modified the case plan and ordered Mother to enter Center Point no later than May 18. 

The court made clear that Mother “must enroll in and remain in Center Point to have 

continued custody of these three children, and she is to enroll and get herself admitted in 

the first available bed.”4

Mother did not enroll in Center Point, and the Department filed a section 387 

petition seeking detention of Minors and their placement in out-of-home care. The 

Department alleged Mother had not complied with the court-ordered case plan and had 

failed to keep her intake appointment at Center Point. Mother also informed the social 

worker she did not intend to return to Marin County or go to Center Point. The family 

had been evicted from subsidized housing “for failure to pay rent for over a year.” 

Minors were living with Grandmother in Oakland, but E and S were no longer attending 

school because there was no one to transport them to Marin County. Mother was still 

unable to provide food for the children throughout the month, even though both E and S 

qualified for free breakfasts and lunches at their schools. 

 

4 At the outset of the hearing, the court noted Father had filed a section 388 petition 

seeking custody of S. It scheduled a hearing on that petition for a later date. 
5

On May 25, 2012, the juvenile court held a detention hearing on the Department‟s 

section 387 petition, and it also considered Father‟s request for custody of S. Mother did 

not object to the proposed placement of Minors with Grandmother, but she did challenge 

Father‟s request for custody of S. After hearing evidence of Mother‟s failure to enter inpatient treatment and ongoing substance abuse, her inability to manage her money to 

meet Minors‟ needs, and Minors‟ continued poor school attendance, the juvenile court 

found there was a substantial danger to Minors and there were no reasonable means to 

protect them without removal from Mother‟s custody. The juvenile court placed Minors 

with Grandmother and ordered that Mother receive services. It denied Father‟s petition 

for custody, but ordered that he receive services and visitation. 

The Department‟s August 13, 2012 section 387 jurisdiction/disposition report 

made five recommendations to the juvenile court. It asked the court to: (1) continue to 

take jurisdiction over Minors; (2) place S in Father‟s custody; (3) order family 

reunification services for Mother; (4) order adoption of the Department‟s case plan; and 

(5) transfer the child welfare case to Alameda County. The report recounted Mother‟s 

failure to engage in the substance abuse treatment the court had ordered in May and 

Mother‟s inability to provide food for Minors. It noted Father had made clear his desire 

to have custody of S, and it set out the facts underlying the Department‟s opinion that 

placement with Father would be appropriate. 

At the combined jurisdictional/dispositional hearing, the social worker testified 

Mother had been living in Alameda County since the middle of May, but despite referrals 

to treatment programs in that county, Mother had attended only one meeting at the East 

Oakland Recovery Center. Although Mother had an appointment with the Chrysalis 

inpatient treatment program, she could not enter the program unless her Medi-Cal 

benefits were transferred to Alameda County. According to the social worker, it was 

Mother‟s responsibility to arrange for the transfer of her benefits, but Mother did not do 

so. Even without a transfer of benefits, Mother could still have participated in treatment 

at the East Oakland Recovery Center, submitted to drug testing, and attended parenting 

classes. 
6

The social worker also recommended that S be placed with Father, despite the 

boy‟s relationships with his half-siblings. The social worker had visited Father‟s home 

three times and had no safety concerns, and her assessment was that Father would 

provide for S‟s basic needs. She had no evidence that Father‟s substance abuse would 

impair his ability to care for S, and although Father and his wife admitted to occasional 

marijuana use, they had expressed a willingness to stop using the drug in order to have 

custody of S. Although the social worker had sent Father referrals for substance abuse 

counseling and parenting education, she did not know whether he had participated in 

those services. Nevertheless, her recommendation that S be placed with Father was not 

conditioned upon Father undergoing services. She explained that he maintained steady 

employment, made appointments for S, and followed up “on other things that a parent

should follow up on.” 

The court also heard S‟s testimony about living with Father. S told the court that 

at his Father‟s home, the family ate dinner together. He liked Father‟s wife, whom he 

called “mom.” S said Father‟s wife would take him and his half-sister, A, to the park. 

The boy said he was in first grade and enjoyed school. When he went to school, Father 

and his wife would make S‟s lunch. Since living with Father, S said he had never been 

hit or yelled at by either Father or his wife. S liked living with his father, and he was 

allowed to call Grandmother and E from Father‟s home. 

At the conclusion of the hearing, the court sustained the Department‟s petition and 

ordered Minors removed from Mother‟s custody, while granting Mother reunification 

services and supervised visitation. The court changed the Department‟s recommended 

case plan for Mother, which had provided she would participate in a six-month residential 

treatment program. Instead, it ordered she be assessed in Alameda County, where the 

case was to be transferred, and it noted that the Alameda court could adopt its own 

recommendation for substance abuse treatment. 

The juvenile court ordered E and N placed with Grandmother, while S was placed 

with Father. It considered the need for S to maintain a bond with his half-siblings, but on 

balance concluded S would be better off living with Father in a stable and secure home. 
7

It provided for regular visitation between S and his half-siblings. Father was to receive 

family maintenance services, including parenting counseling and some form of substance 

abuse treatment or counseling. The court ordered the case transferred to Alameda 

County. 

Mother then filed a timely notice of appeal from the court‟s orders. 

DISCUSSION

Mother raises four arguments on appeal, all of which challenge the sufficiency of 

the evidence underlying the juvenile court‟s findings. She first contends there was 

insufficient evidence to support the juvenile court‟s determination that its previous 

disposition had been ineffective. She then argues the evidence was insufficient to support 

Minors‟ removal from her custody. Mother also asserts the Department failed to make 

reasonable efforts to prevent or eliminate the need for removal. Finally, she contends the 

juvenile court erred in placing S in Father‟s custody. We address Mother‟s contentions in 

the order presented.

I. The Juvenile Court Did Not Err in Finding the Previous Disposition Ineffective.

Mother contends the evidence was insufficient to sustain the Petition‟s allegation 

that the previous disposition had been ineffective. (See Cal. Rules of Court, 

rule 5.565(e)(1)(B) [at hearing on supplemental petition, juvenile court must make 

finding that “[t]he allegation that the previous disposition has not been effective is or is 

not true”].) She argues the previous disposition was effective because Mother kept 

Minors safe by moving them to Grandmother‟s home and because the juvenile court no 

longer required Mother to be in residential substance abuse treatment. We disagree.

A. Governing Law and Standard of Review

Section 387 provides in relevant part: “(a) An order changing or modifying a 

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

made only after noticed hearing upon a supplemental petition. [¶] (b) The supplemental 

petition shall be filed by the social worker in the original matter and shall contain a 

concise statement of facts sufficient to support the conclusion that the previous 

disposition has not been effective in the rehabilitation or protection of the child . . . .” 
8

Such a petition is ordinarily required when, as in this case, the Department “concludes 

that a previous disposition has not been effective in the protection of a child declared a 

dependent under section 300 and seeks a more restrictive level of physical custody.” 

(Cal. Rules of Court, rule 5.560(c).)

The hearing on a supplemental petition is a bifurcated proceeding. (Cal. Rules of 

Court, rule 5.565(e).) In the first, or “jurisdictional” phase of the proceeding, the 

Department has the initial burden of showing by a preponderance of the evidence that the 

factual allegations in the petition are true. (Cal. Rules of Court, rule 5.565(e)(1)(A); In re 

Jonique W. (1994) 26 Cal.App.4th 685, 691.) “If the court finds the factual allegations 

are true, then the court determines whether the previous disposition is no longer effective 

in protecting the child . . . .” (In re H.G. (2006) 146 Cal.App.4th 1, 11; Cal. Rules of 

Court, rule 5.565(e)(1)(B).) “The ultimate „jurisdictional fact‟ necessary to modify a 

previous placement with a parent . . . is that the previous disposition has not been 

effective in the protection of the minor.” (In re Jonique W., supra, 26 Cal.App.4th at 

p. 691.)

If the juvenile court finds the factual allegations of the petition true and further 

finds that the previous disposition has not been effective, it must then conduct a 

dispositional hearing in accordance with California Rules of Court, rule 5.565(e)(2). (See 

In re Jonique W., supra, 26 Cal.App.4th at p. 691.) In the dispositional phase, the court 

must consider whether removal of the minor from his or her placement is required. (In re 

H.G., supra, 146 Cal.App.4th at p. 12.) “Before a minor can be removed from the 

parent‟s custody, the court must find, by clear and convincing evidence, „[t]here is or 

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

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

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

removing the minor from the minor‟s parent‟s . . . physical custody.‟” (In re T.W. (2013) 

214 Cal.App.4th 1154, 1163, quoting § 361, subd. (c)(1).)

Removal may be ordered if there is proof of the parent‟s inability to provide 

proper care for the minor and of potential detriment to the minor if he or she remains in 
9

the parent‟s care. (In re T.W., supra, 214 Cal.App.4th at p. 1163.) “The parent need not 

be dangerous and the minor need not have been harmed before removal is appropriate. 

The focus of the statute is on averting harm to the child.” (Ibid., italics added.)

We review an order sustaining a section 387 petition for substantial evidence. (In 

re A.O. (2010) 185 Cal.App.4th 103, 109.) “The juvenile court has broad discretion to 

determine what would best serve and protect the child‟s interest and to fashion a 

dispositional order. [Citation.] On a challenge to an order removing a dependent child 

from his or her parent, we „view the record in the light most favorable to the order and 

decide if the evidence is reasonable, credible and of solid value.‟ [Citation.] We draw all 

reasonable inferences from the evidence to support the findings and orders of the 

dependency court.” (In re Javier G. (2006) 137 Cal.App.4th 453, 462-463.) As a 

consequence, the substantial evidence standard of review is extremely difficult to meet, 

because it is not the function of an appellate court to determine the facts. (In re Michael 

G. (2012) 203 Cal.App.4th 580, 589.)

B. Substantial Evidence Supports the Juvenile Court’s Findings.

Mother does not appear to dispute the truth of the factual allegations of the 

petition. (See Cal. Rules of Court, rule 5.565(e)(1)(A).) Instead, she argues there was no 

substantial evidence to support the juvenile court‟s finding that the previous disposition 

had been ineffective. She contends the allegations of the supplemental petition involved 

matters “that were largely before the court when the court sustained the original petition 

and ordered family maintenance services, particularly Mother‟s substance abuse and her 

inability to provide the children with food.”5 Mother acknowledges there were two new 

issues—her family‟s eviction and her failure to enroll in Center Point—but asserts that 

neither of these allegations supported a finding that the previous disposition was 

ineffective. We disagree.

 

5

This argument is largely beside the point. “A section 387 petition need not allege any 

new jurisdictional facts, or urge different or additional grounds for dependency because a 

basis for juvenile court jurisdiction already exists.” (In re T.W., supra, 214 Cal.App.4th 

at p. 1161.)
10

Initially, we note Mother largely ignores the limited nature of substantial evidence 

review. Her opening brief seeks to reargue the evidence, but she “would be well advised 

to remember it is the function of the trier of fact, not the appellate court, to determine the 

facts, and to cast [her] arguments in this court within the confines of that basic principle.” 

(In re Michael G., supra, 203 Cal.App.4th at p. 584.) As we have explained, “[t]he Court 

of Appeal is not a second trier of fact[.]” (James B. v. Superior Court (1995) 35 

Cal.App.4th 1014, 1021.) To prevail on appeal, Mother must demonstrate that there is no 

substantial evidence to support the juvenile court‟s findings. “„A recitation of only 

[appellant‟s] evidence is not the “demonstration” contemplated under the above rule. 

[Citation.] Accordingly, if, as [appellant] here contend[s], “some particular issue of fact 

is not sustained, [appellant is] required to set forth in [her] brief all the material evidence 

on the point and not merely [her] own evidence. Unless this is done the error is deemed 

to be [forfeited].” (Italics added.) [Citations.]‟” (In re S.C. (2006) 138 Cal.App.4th 396, 

414-415.)

The Department‟s brief sets out the evidence supporting the juvenile court‟s 

finding that the previous disposition had been ineffective in protecting Minors. First, 

Mother continued to abuse drugs, despite receiving services and despite the court‟s 

warnings that failure to address her substance abuse would lead to removal of Minors 

from her custody. (See In re A.O. (2004) 120 Cal.App.4th 1054, 1063 [concerns about 

grandmother‟s drug use supported removal of dependent children from her custody].) 

Because of her substance abuse, Mother was unable to meet the goals in her case plan; 

she failed to take Minors to scheduled dental appointments and was evicted for 

nonpayment of rent. The detrimental effects on Minors were obvious, as N lost her place 

at preschool due to poor attendance and S was unable to receive special education 

services for the same reason. Mother could not even provide adequate food for Minors. 

Moreover, Mother was not participating in court-ordered services, and her parent aide 

and therapist stopped working with her due to her failure to progress. (See Angela S. v. 

Superior Court (1995) 36 Cal.App.4th 758, 763 [parent‟s failure to participate in services 

is prima facie evidence that return of minor to parent‟s custody would be detrimental].) 
11

Thus, substantial evidence supports the juvenile court‟s findings that the previous 

disposition was ineffective in protecting Minors. (See In re Javier G., supra, 137 

Cal.App.4th at pp. 461-462 [affirming finding that prior dispositional order was 

ineffective where mother was not able to provide sufficient structure and supervision to 

control her sons‟ abuse of their siblings].)

Mother nevertheless claims the previous disposition was effective because she had 

moved the children to Grandmother‟s home. As the Department points out, however, this 

fact actually supports the court‟s removal order, since it demonstrates that Grandmother 

was caring for Minors because of Mother‟s inability to do so. We also reject Mother‟s 

argument that the previous disposition was effective because the court no longer required 

Mother to be in residential treatment. This is a misreading of the record. The juvenile 

court did not rule that Mother no longer required residential treatment. Instead, it ordered 

Mother to have a substance abuse assessment in Alameda County and left it up to the 

Alameda County court to “adopt its own recommendation for substance abuse treatment.” 

This is a far cry from saying residential treatment was no longer required.

II. Substantial Evidence Supports the Decision to Remove Minors from Mother’s 

Custody.

Mother contends there was insufficient evidence to support removal of the Minors 

from her custody. She argues this is not a case of extreme parental abuse and neglect and 

asserts that family maintenance services were a reasonable means of protecting Minors 

without removal. Again, we disagree.

The juvenile court found removal justified because there was clear and convincing 

evidence of the circumstances stated in section 361, subdivision (c)(1). Under that 

subdivision, minors may be removed from parental custody when there is clear and 

convincing evidence “[t]here is or would be a substantial danger to the physical health, 

safety, protection, or physical or emotional well-being of the minor if the minor were 

returned home, and there are no reasonable means by which the minor‟s physical health 

can be protected without removing the minor from the minor‟s parent‟s . . . physical 

custody.” (§ 361, subd. (c)(1).)
12

Substantial evidence supports the juvenile court‟s findings. Many of the facts 

detailed in the preceding section of this opinion also support the juvenile court‟s decision 

to remove Minors from Mother‟s custody. Mother continued to abuse drugs despite 

receipt of services. Perhaps most important, she was not providing her children with 

adequate food. The Department reported that on at least one occasion, Mother used 

money intended for the purchase of food to buy cigarettes for herself. Mother‟s 

continued substance abuse, her failure to provide Minors with sufficient nutrition, and her 

neglect of her children‟s dental care fully support the juvenile court‟s finding that there 

would be a substantial danger to Minors‟ well being if they remained in Mother‟s home, 

and there was no reasonable means of protecting their physical health unless they were 

removed from Mother‟s custody. (See In re A.O., supra, 120 Cal.App.4th at p. 1063 

[concerns about grandmother‟s drug use and failure to provide adequate child care 

supported removal of dependent children from her custody].)

These facts also refute Mother‟s argument that family maintenance services would 

have been adequate to protect Minors. Minors were ordered removed because of 

Mother‟s demonstrated failure to discharge her parental responsibilities despite having 

what the social worker called “a long list of supportive services in place.” As the 

Department‟s jurisdiction/disposition report put it, “[d]espite all of the extensive support 

and services provided to her and her family, [Mother] was unable to utilize the assistance 

provided in order to stabilize her life.” “A parent whose children have been adjudged 

dependents of the juvenile court is on notice of the conduct requiring such state 

intervention. If such a parent in no way seeks to correct his or her own behavior or waits 

until the impetus of an impending court hearing to attempt to do so, the legislative 

purpose of providing safe and stable environments for children is not served by forcing 

the juvenile court to go „on hold‟ while the parent makes another stab at compliance.” 

(In re Michael S. (1987) 188 Cal.App.3d 1448, 1463, fn. 5.)
13

III. There Is Substantial Evidence the Department Made Reasonable Efforts to 

Prevent or Eliminate the Need for Minors’ Removal.

Mother also contests the juvenile court‟s finding that the Department made 

reasonable efforts to prevent or eliminate the need for removal. (See § 361, subd. (d); In 

re Javier G., supra, 137 Cal.App.4th at p. 463.) Specifically, she contends the 

Department failed to: (1) assist her in transferring her Medi-Cal benefits to Alameda 

County and (2) provide adequate visitation between Mother and S. We conclude the 

juvenile court‟s finding is supported by substantial evidence. (See id. at p. 465.)

“[R]easonable efforts, like reasonable services, need only be reasonable under the 

circumstances, not perfect. [Citation.]” (In re H.E. (2008) 169 Cal.App.4th 710, 725.) 

Furthermore, the social worker was not required to “take [Mother] by the hand” if Mother 

refused to avail herself of the services offered. (In re Michael S., supra, 188 Cal.App.3d 

at p. 1463, fn. 5.) Here, there was substantial evidence from which the juvenile court 

could find the Department‟s efforts reasonable.

The Department‟s jurisdiction/disposition report contains a lengthy list of family 

maintenance services it either provided or offered to Mother. These services were in 

addition to other supportive services already in place before the family maintenance case 

was established, including food stamps and other food assistance, subsidized housing, a 

parent aide, and therapeutic services. While Mother faults the Department for being 

insufficiently helpful in getting her Medi-Cal benefits transferred to Alameda County, the

social worker called a CalWorks provider about assisting Mother, provided the name and 

phone number of a Medi-Cal worker for Mother to contact, and spoke with a worker at a 

residential program for Mother about getting Mother‟s general assistance and Medi-Cal 

benefits transferred. The social worker also testified, however, that she had no authority 

over the transfer of Medi-Cal benefits and that arranging the transfer was Mother‟s 

responsibility. After Mother‟s move, the social worker sent Mother a list of treatment 

programs in Alameda County, referred Mother for housing, and provided public 

transportation cards so Mother could get to and from groups at a treatment center where 

Mother had enrolled. Based on this evidence, the juvenile court could certainly conclude 
14

the Department had made reasonable efforts. (In re Javier G., supra, 137 Cal.App.4th at 

pp. 464-465.)

Mother‟s complaint about lack of visitation and contact with S appears to concern 

a three-week period before the August 24, 2012 hearing in which Mother contends no 

arrangements were made for contact between S and Mother, his siblings, or 

Grandmother.6 The social worker testified this lack of contact was due to an ongoing 

investigation into allegations S appears to have made about being sexually assaulted by 

an adult male while in Mother‟s care. The social worker also testified that she did not 

arrange for contact between S and other family members because she did not want to 

interfere with the Marin County Sheriff‟s efforts to coordinate interviews related to the 

investigation. 

Mother does not dispute the sexual assault allegations were made, nor does she 

claim the social worker and the sheriff should not have investigated them. Her argument 

seems to be only that the investigation either took too long or was merely an “excuse” for 

not facilitating contact between S and his maternal family. Mother does not tell us why 

she believes the investigation was unreasonably long, and she points us to no record 

evidence to support her claim that the investigation was merely an excuse. Even though 

the allegations and investigation did not result in a new petition, we hardly think it proper 

to fault the social worker for taking them seriously and investigating them. On this 

record, the juvenile court could certainly conclude the Department had made reasonable 

efforts despite any failure to arrange visitation or contact with S during the relatively 

brief period necessary to conduct an investigation into very serious allegations. (See 

Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 692 [upholding finding that 

agency provided reasonable services despite social worker‟s admittedly erroneous, but 

temporary, suspension of visitation].)

 

6 Mother‟s briefs do not provide the specific dates during which she contends there was 

no contact. In her opening brief, she refers to the three weeks preceding the August 24, 

2012 hearing. Her reply brief asserts S did not have contact with his maternal family for 

“many weeks.” 
15

IV. Father Is Legally Entitled to Custody of S Absent Clear and Convincing Evidence 

the Placement Would be Detrimental.

Finally, Mother contends the juvenile court erred in placing S with Father, S‟s 

noncustodial parent. Under section 361.2, subdivision. (a), when the juvenile court 

orders the removal of a minor under section 361, the court shall place the child with a 

noncustodial parent who requests custody “unless it finds that placement with that parent 

would be detrimental to the safety, protection, or physical or emotional well-being of the 

child.” (§ 361.2, subd. (a).) Father requested custody of S in this case. When such a 

request is made, “[t]he court must first determine whether it would be detrimental to the 

child to temporarily place the child in [the noncustodial] parent‟s physical custody. If 

there is no showing of detriment, the court must order the [Department] to temporarily 

place the child with the nonoffending noncustodial parent.” (In re Austin P. (2004) 118 

Cal.App.4th 1124, 1135, italics added.) Here, the juvenile court found placement with 

Father would not be detrimental to S, and it awarded Father custody. 

Mother seeks to persuade us that, contrary to the court‟s findings, placement with 

Father would be detrimental to S. We reject Mother‟s argument for a number of reasons. 

First, she misunderstands the burden of proof on the detriment issue. Second, Mother has 

forfeited this argument by ignoring our standard of review. Third, even if the argument 

were not forfeited, substantial evidence supports the juvenile court‟s decision.

While Mother‟s brief correctly notes that a detriment finding under section 361.2 

must be made by clear and convincing evidence, she fails to acknowledge she bore the 

burden of proof on this issue in the court below. As the Third District recently explained, 

“„a nonoffending parent has a constitutionally protected interest in assuming physical 

custody, as well as a statutory right to do so, in the absence of clear and convincing 

evidence that the parent‟s choices will be “detrimental to the safety, protection, or 

physical or emotional well-being of the child.”‟” [Citation.] It is not the nonoffending 

parent‟s burden to show that [he] is capable of caring for [his] child. Rather, it is the 

party opposing placement who has the burden to show by clear and convincing evidence 

that the child will be harmed if the nonoffending parent is given custody.” (In re Z.K.
16

(2011) 201 Cal.App.4th 51, 70, italics added.) Thus, as the party opposing placement 

with Father, it was up to Mother to demonstrate, by clear and convincing evidence, that 

placing S with his father would be “detrimental to [S‟s] . . . safety, protection, or physical 

or emotional well-being[.]” (§ 361.2, subd. (a).)

The allocation of the burden of proof in the juvenile court affects our standard of 

review. Ordinarily, we would review the juvenile court‟s detriment finding under the 

substantial evidence test. (E.g., In re Luke M. (2003) 107 Cal.App.4th 1412, 1426.) “But 

this test is typically implicated when a defendant contends that the plaintiff succeeded at 

trial in spite of insufficient evidence. In the case where the trier of fact has expressly or 

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

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

substantial evidence supports the judgment. . . . [¶] [W]here the issue on appeal turns on a 

failure of proof at trial, the question for a reviewing court becomes whether the evidence 

compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, 

the question becomes whether the appellant‟s evidence was (1) „uncontradicted and 

unimpeached‟ and (2) „of such a character and weight as to leave no room for a judicial 

determination that it was insufficient to support a finding.‟ [Citation.]” (In re I.W.

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

Because Mother bore the burden of proof on the detriment issue, on appeal, she 

must show the evidence of detriment was so strong as to require the juvenile court to find 

in her favor as a matter of law. (In re I.W., supra, 180 Cal.App.4th at p. 1528.) Rather 

than attempting this showing, Mother simply recites the evidence that favors her position, 

while much of the evidence supporting the juvenile court‟s finding goes unmentioned. 

Such a factual presentation would be inadequate even under the traditional substantial 

evidence test, because “[e]vidence not favorable to the [appellant] cannot be simply 

ignored as if it does not exist.” (James B. v. Superior Court, supra, 35 Cal.App.4th at p. 

1021.) But it is doubly insufficient here, where Mother‟s burden on appeal is not merely 

to show the lower court‟s finding is unsupported by the evidence, but also to show the 

uncontradicted and unimpeached evidence compels a finding in her favor. (In re I.W., 
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supra, 180 Cal.App.4th at p. 1528.) “We therefore decline [M]other‟s implicit invitation 

to review the record so as to recount evidence that supports her position (reargument) 

with the object of reevaluating the conflicting, competing evidence and revisiting the 

juvenile court‟s failure-of-proof conclusion.” (Ibid.) Her failure to provide an argument 

tailored to our limited standard of review effectively forfeits the point. (See In re S.C., 

supra, 138 Cal.App.4th at pp. 414-415.)7

Even if the argument is properly before us, it is meritless. Mother‟s principal 

contentions are that Father had unaddressed anger management and substance abuse 

problems and that it was detrimental to separate S from his half-siblings. With respect to

Father‟s alleged anger management problem, Mother herself testified Father had 

addressed his anger at her. Grandmother testified she and Father had always gotten along 

and that only Father‟s relationship with Mother was contentious. The social worker 

testified S was not afraid of Father and that the boy had not witnessed any kind of 

violence in Father‟s home. 

Although both Father and his wife admitted to occasional marijuana use, they 

informed the social worker that they would give up marijuana so they could parent S. 

The social worker testified there was no evidence Father‟s marijuana use would impair 

his ability to parent S. Furthermore, Father had already demonstrated his ability to parent 

by maintaining steady employment, looking after things such as S‟s schooling and 

appointments, caring for S during the summer, and successfully raising S‟s little halfsister. Finally, the juvenile court recommended Father be assessed by Alameda County 

regarding marijuana use. 

Mother‟s argument that it was detrimental to separate S from his siblings is based 

in part on her assertion that there was no evidence that Father would maintain visitation 

between the siblings. The transcript of the juvenile court‟s ruling demonstrates, however, 

 

7 As stated in the text, Mother‟s argument also fails under the traditional substantial 

evidence standard because “„if, as [appellant] here contend[s], “some particular issue of 

fact is not sustained, [appellant is] required to set forth in [her] brief all the material 

evidence on the point and not merely [ her ] own evidence. Unless this is done the error 

is deemed to be [forfeited].”‟” (In re S.C., supra, 138 Cal.App.4th at pp. 414-415.)
18

that the court devoted considerable time and attention to the issue of visitation and the 

sibling bond. It ordered regular visitation and telephone contact between S and his halfsiblings. We presume these orders will be followed.

In the end, the court did not place S with his half-siblings because the Minors have 

different fathers, and it found it appropriate to place S in Father‟s care. Thus, the juvenile 

court stated it had “considered very seriously the bond that exists between the children.” 

It desired to maintain that relationship, but found “on balance, it is to [S‟s] best interest 

and greater interest, that he be living with his dad, . . . in a stable, secure home, attending 

school and being well cared for, versus the benefit that may arise from being with his 

brother and sister with his grandmother, and the possibility he may go back to live with 

his mother or may wind up in foster care . . . .” We cannot say this decision is 

unsupported by the evidence.

DISPOSITION

The orders from which the appeal is taken are affirmed.

_________________________

Jones, P.J.

We concur:

_________________________

Needham, J.

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Bruiniers, J.