Filed 8/18/20
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                          DIVISION SEVEN

GEORGEANNE G.,                    B301629

        Petitioner,               (Los Angeles County
                                  Super. Ct. No. 17CCJP00920A)
        v.

THE SUPERIOR COURT
OF LOS ANGELES
COUNTY,

        Respondent;

LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES et al.,

        Real Parties in
        Interest.

     ORIGINAL PROCEEDINGS. Nichelle L. Blackwell,
Juvenile Court Referee. Petition granted.
     Keiter Appellate Law and Mitchell Keiter for Petitioner.
     No appearance by Respondent.
      Mary C. Wickham, County Counsel, Kristine P. Miles,
Assistant County Counsel, Jessica S. Mitchell, Deputy County
Counsel, for Real Party in Interest.
      Children’s Law Center of Los Angeles-1 and Margaret K.
Lee for Lucas H., minor.
                 _____________________________

      Georgeanne G., the mother of four-year-old Lucas H., seeks
extraordinary writ relief (Welf. & Inst. Code, § 366.26, subd. (l);1
Cal. Rules of Court, rule 8.452) from the juvenile court’s order at
the 18-month permanency review hearing (§ 366.22) terminating
her reunification services and setting a hearing pursuant to
section 366.26 to consider implementation of a permanent plan of
adoption for her son. Georgeanne argues her purported lack of
insight into the problem that led to Lucas’s removal from her
custody is not properly considered in assessing whether his
return to her home would create a substantial risk of detriment
to the child’s safety, protection or physical or emotional well-
being and, therefore, is not a proper ground for terminating
reunification services and setting a section 366.26 hearing.
Although we disagree with Georgeanne’s contention that the
issue of parental insight may not be considered by the juvenile
court, we agree the Los Angeles County Department of Children
and Family Services (Department) failed to present sufficient
evidence Lucas would be at substantial risk of harm if returned
to Georgeanne’s home. We grant the petition.




1     Statutory references are to this code unless otherwise
stated.



                                 2
      FACTUAL AND PROCEDURAL BACKGROUND
      1. The Dependency Petitions and Lucas’s Removal from
         Georgeanne
      In December 2017 Georgeanne and Sean H., Lucas’s
presumed father, pleaded no contest to an amended petition
pursuant to section 300, subdivision (b)(1), which alleged
Georgeanne and Sean had a history of domestic violence and
engaging in altercations in the presence of the child. The petition
identified a specific incident when Sean, who had previously been
convicted of inflicting corporal injury on a spouse or cohabitant,
struck Georgeanne in the face and alleged that the violent
altercation endangered Lucas’s physical health and safety and
placed him at risk of serious physical harm.2 The petition further
alleged Georgeanne had an unresolved history of substance use
(marijuana) that rendered her incapable of providing regular care
for the child. Lucas was placed with Georgeanne under the
supervision of the Department. Family maintenance services for
Georgeanne included programming for domestic violence victims,
parenting classes, individual counseling and drug testing. The
court also ordered that Georgeanne not permit any contact




2     The plea form signed by Georgeanne, Sean and their
attorneys stated Sean, but not Georgeanne, pleaded no contest to
the domestic violence count. However, the minute order from the
jurisdiction hearing does not indicate the court sustained that
count, and the Department’s reports similarly omit that count in
describing the bases for the court’s jurisdiction over Lucas. At
the permanency review hearing at issue in this petition, the
Department, Georgeanne’s counsel and the court all assumed the
domestic violence count had been sustained as to Sean.



                                 3
between Lucas and her current male companion, Arthur A., who
had previously been convicted of the forcible rape of his ex-wife.3
       In May 2018 the court sustained a supplemental petition
(§ 387), filed in January 2018, alleging Georgeanne continued to
abuse illicit substances including marijuana and had allowed
Arthur A. to reside in her home with unlimited access to Lucas in
violation of the court’s prior order. Lucas was removed from
Georgeanne’s custody and ordered suitably placed with his
paternal grandparents. Family reunification services were
ordered, including a full drug/alcohol program with aftercare,
domestic violence counseling and parenting classes. Georgeanne
appealed. We affirmed the juvenile court’s findings and orders.
(In re Lucas H. (June 11, 2019, B290051) [nonpub. opn.].)4
       2. Georgeanne’s Efforts at Reunification
       In a November 2018 status review report for the six-month
section 366.21, subdivision (e), review hearing, the Department
advised the court Georgeanne had tested positive for marijuana
at each of nine drug tests she had taken and failed to appear for
13 other tests. Georgeanne, who said her marijuana use was
medically necessary but had not provided documentation to
support this claim, was discharged from her drug program for

3     The December 13, 2017 report stated Georgeanne “is
sharing a motel room with her boyfriend Arthur [A.] who was
recently convicted on 3/2/17 of PC 262(A)(1) felony: Rape Spouse
by Force/Fear/Etc. The mother’s boyfriend was ordered to
complete a domestic violence program and he was placed on
4 years formal supervised probation.”
4     The sole issue on appeal was whether the Department and
the juvenile court had complied with the notice requirements of
the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.)
and related California law.



                                 4
lack of attendance and for missed and positive drug tests.
Georgeanne acknowledged she continued to live with Arthur and
confirmed she was pregnant with their child. She tested positive
for marijuana throughout her pregnancy.5
       In a January 16, 2019 last minute information report for
the continued six-month review hearing, the Department stated
Georgeanne had been minimizing her marijuana use and had
begun using alternate pain management resources. Georgeanne
requested additional time to begin a substance abuse program
after the birth of her son Liam and said she was willing to comply
with court orders and to begin all court-ordered programs. At the
hearing on January 18, 2019 the court found Georgeanne’s
progress toward alleviating or mitigating the causes
necessitating placement was “minimal” and ordered continuation
of her reunification services. The court found Sean’s progress
was “nonexistent” and terminated his reunification services.
       In its initial report for the 12-month review hearing
(§ 366.21, subd. (f)) in March 2019, the Department explained
that Georgeanne had refused to enroll in any of the programs
ordered in her case plan and would not comply with the court
order for substance abuse treatment. She continued to test
positive for marijuana and insisted she needed to use it to
manage the pain associated with gastritis. According to the


5     On January 25, 2019 the Department filed a petition on
behalf of Liam, Georgeanne and Arthur’s one-month-old son. The
court sustained the petition under section 300, subdivision (b)(1),
finding true the allegations that Georgeanne had tested positive
for marijuana from June 2018 through January 2019 and that
Liam had tested positive for marijuana at birth. Liam is the
subject of a separate dependency proceeding.



                                 5
Department, “The mother seems to have a minimal perception to
her needs to [c]omply with Court orders to enroll and participate
in Substance abuse, Parent education, Individual therapy and
Domestic violence. The mother stated that she has informal
support through her boyfriend Arthur [A.] and his family and
that she will continue to use marijuana for pain management at
this time.” As a result, the Department wrote, she “has
minimized the possible safety risks that child Lucas [H.] may
endure in her care . . . [and] has failed to gain insight as to how
her Substance Abuse affects her child.” The Department
recommended terminating Georgeanne’s reunification services.
       The hearing was continued when Georgeanne asked for a
contest. In an interim review report prior to the continued
hearing, the Department advised the court Georgeanne was then
enrolled in a substance abuse program and had several negative
and several positive tests for marijuana. She was also
participating in a support group for victims of domestic violence.
The Department reported that a concurrent planning assessment
had been completed for Lucas and his paternal grandparents,
with whom he had been living, who were identified as prospective
adoptive parents. The Department again recommended
termination of Georgeanne’s reunification services.
       After two more continuances the contested 12-month
review hearing was held on June 12, 2019. The court found
Georgeanne’s progress toward alleviating the causes for Lucas’s
placement was satisfactory, but not substantial, and ordered
reunification services continued for her over the objection of the
Department and Lucas’s counsel. The court set a contested
permanency review hearing (§ 366.22) for September 17, 2019.




                                 6
       3. The 18-month Permanency Review Hearing
       In its report for the 18-month permanency review hearing
the Department stated Georgeanne had maintained a strong
relationship and bond with Lucas, “and during monitored
visitation the mother has provided the child Lucas, age
appropriate activities, meals, show[s] affection and continues to
be engaging.” In addition, Georgeanne had completed all aspects
of her case plan, including a domestic violence counseling
program.6 Nonetheless, the Department expressed concern about
Georgeanne’s lack of insight as to the need for cooperation with
the Department’s case worker and the importance of the court’s
no-contact order regarding Arthur in light of Georgeanne’s
acknowledgement that she and Arthur continued to reside
together and have an intimate relationship. Specifically,
Georgeanne’s case worker wrote, “[T]he mother has failed to
demonstrate to this CSW what she has learned in her Parent
education classes; [f]urthermore, the mother seems to have a
minimal perception to her needs to comply with Court orders
when it comes to fully comprehend the inherent dangers
associated with family violence, drug abuse, and allowing
person(s) with violent criminal backgrounds to have access to her
child.” The report continued, “The mother’s failure to
acknowledge, recognize or accept how some of her neglectful
and/or abusive behaviors can present a risk and detriment to


6     Although there was a question whether Georgeanne had
previously presented evidence of completion of a domestic
violence program, at the September 17, 2019 hearing the court
admitted as Mother’s Exhibit D a certificate of completion of a
12-session, in-person domestic violence class, dated April 28,
2019.



                                7
child suggests that the mother has been unconvinced of the risks
they pose to child. Therefore, it would be detrimental for the
child Lucas to be returned to mother at this time.” The
Department recommended the court terminate reunification
services for Georgeanne and set a section 366.26 hearing to
determine a permanent plan of adoption for Lucas.7
       Georgeanne was the only witness at the permanency
review hearing. She testified she had not used marijuana since
January 2019 and had tested clean 19 times since then. She
explained her four no-shows were related to transportation
problems. She also completed two parenting classes although the
court had ordered only one, as well as domestic violence
counseling. Asked what her ideal plan for Lucas was,
Georgeanne explained she would like the order prohibiting
contact between Lucas and Arthur lifted so that she, Arthur,
Lucas, Liam and the second child she was then expecting with
Arthur could all live together as a family. Acknowledging she
had lived with Arthur for the past two years and was financially
dependent on him, Georgeanne nonetheless testified that, if
Lucas was released to her and the no-contact order were to
remain in effect, she would abide by it and not live together with
Arthur. She insisted she had honored the no-contact order since
it was issued; Lucas and Arthur had not been together.
       With respect to issues of violence, Georgeanne testified
Arthur had never struck her or threatened to do so. She also said
she had never hit Arthur and insisted claims by Liam’s paternal
grandparents (Arthur’s parents) to the contrary were false.


7    The section 366.26 hearing has been continued to
January 7, 2021 because of the COVID-19 pandemic.



                                8
       Following Georgeanne’s testimony Lucas’s counsel
expressed her agreement with the Department’s recommendation
to terminate reunification services, explaining, although
Georgeanne had completed all court-ordered programs, “She’s not
gained insight into what led to the court’s interfering in this case
and jurisdiction. She still is dependent upon [Arthur] despite no
contact orders. Basically, she’s chosen [Arthur] over Lucas in
that she continues to rely on him. Perhaps that’s out of necessity.
But she’s–I think with the progress she made, if she had more
insight she could have reunified with Lucas, but this is a big
sticking point for her.”
       Georgeanne’s counsel, after pointing out that everyone who
had observed Georgeanne interact with Lucas had described her
as extremely appropriate, nurturing and supportive, argued
Georgeanne was not choosing Arthur over Lucas. He insisted
Georgeanne was aware of the facts underlying Arthur’s rape
conviction; she had addressed that situation with him; and, based
on her discussions with him, as well as her own peaceful
experiences while living with him, believed he is not a danger. In
support of this view, counsel noted that the court in Liam’s
dependency proceeding had ordered reunification services for
Arthur, indicating its belief he was capable of developing into a
positive father figure for his son. Counsel asked the court to
return Lucas to Georgeanne’s home and either lift the no-contact
order concerning Arthur or, at least, permit Arthur to have
monitored visitation with Lucas.
       The Department reiterated the position in its report for the
hearing: Georgeanne had not actually internalized anything. As
its counsel explained, “She has admitted that she has decided to
continue with [Arthur]. She’s having another child with him.




                                 9
She’s not independent, she’s co-dependent on him. She knows
what his conviction is. It’s not relevant that the court didn’t
sustain that petition. It is the truth, and mother admits that.
Yet, she sees no problem. She’s in conjoint counseling with him.
She’s trying to make a family with him when one of the counts
that was sustained on Lucas’s case was domestic violence with
the father of Lucas. So she has chosen another individual who
has those tendencies. I don’t believe that she can keep [Arthur]
away from Lucas.”
      The court terminated family reunification services for
Georgeanne and set the section 366.26 hearing to consider
termination of parental rights with adoption as Lucas’s
permanent plan, finding that Georgeanne was in satisfactory
compliance with her case plan,8 but not in full compliance
because “she has not gained meaningful insight. . . .
[P]articipation in programs alone is not enough. Insight is what
the court looks towards.” Explaining its decision, the court
expressed its belief, based the Department’s reports and
Georgeanne’s testimony, that the moment Lucas was released to
Georgeanne, he would have contact with Arthur notwithstanding
the no-contact order. Continuing, the court said, “I do not believe
that the mother has shown the level of insight to extricate herself
from him or to see that he is addressing the issues that led to
that conviction over in that court so that that does not happen
again or it does show that he is a safe individual for a child to be
around.”




8     The court found that Georgeanne had resolved her
substance use/marijuana issue.



                                 10
                          DISCUSSION
      1. Governing Law and Standard of Review
      The Legislature has determined the juvenile court may
generally offer family reunification services for a maximum
period of 18 months. (§§ 361.5, subd. (a)(3), 366.22, subd. (a);
Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249.)9 At the
18-month permanency review hearing the juvenile court must
order a child returned to a parent’s custody unless it finds, by a
preponderance of the evidence, that return of the child will create
a substantial risk of detriment to the child’s safety, protection or
physical or emotional well-being. (§ 366.22, subd. (a).) “That
standard is construed as a fairly high one. [Citation.] It does not
mean the parent in question is less than ideal, did not benefit
from reunification services as much as we might have hoped, or
seemed less capable than the available foster parent or other

9      Sections 361.5, subdivision (a)(4)(A) and 366.22,
subdivision (b), authorize the juvenile court to extend
reunification services beyond the 18-month statutory period in
certain limited circumstances, none of which is present in this
case. There are also cases in which appellate courts have ruled
reunification services may continue beyond the 18-month
statutory period, but those cases involved truly exceptional
situations in which some external factor thwarted the parent’s
efforts at reunification. (See, e.g., In re Elizabeth R. (1995)
35 Cal.App.4th 1774, 1787, 1796 [mother was hospitalized during
most of the reunification period; after her release the child
welfare agency attempted to restrict visitation]; In re Daniel G.
(1994) 25 Cal.App.4th 1205, 1209, 1212-1214 [the Department’s
reunification services for the father were a “disgrace”]; In re
Dino E. (1992) 6 Cal.App.4th 1768, 1777-1778 [no reunification
plan was ever developed by the child welfare agency for the
father].)



                                 11
family member.” (M.G. v. Superior Court (2020) 46 Cal.App.5th
646, 660 (M.G.).)
       If the child is not returned to a parent at the permanency
review hearing, the court must terminate reunification services
and order a hearing pursuant to section 366.26. (§ 366.22,
subd. (a).) However, the court has discretion to enter a home-of-
parent order while continuing court supervision and services.
(Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 311-312
[“[w]e do not believe this 18-month limit on family reunification
services constrains the juvenile court’s authority to order family
maintenance services beyond that time for a child who has been
returned to the custody of his or her parent”]; see § 16506.)
       We review the juvenile court’s finding of detriment for
substantial evidence. (In re B.S. (2012) 209 Cal.App.4th 246,
252; Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763.)
Under that standard we inquire whether the evidence,
contradicted or uncontradicted, supports the court’s
determination. We resolve all conflicts in support of the
determination, indulge in all legitimate inferences to uphold the
findings and may not substitute our deductions for those of the
juvenile court. (In re I.J. (2013) 56 Cal.4th 766, 773; Los Angeles
County Dept. of Children & Family Services v. Superior Court
(2013) 215 Cal.App.4th 962, 966; see In re Quentin H. (2014)
230 Cal.App.4th 608, 613.) However, “[s]ubstantial evidence is
not synonymous with any evidence. [Citation.] To be
substantial, the evidence must be of ponderable legal significance
and must be reasonable in nature, credible, and of solid value.”
(In re M.S. (2019) 41 Cal.App.5th 568, 580; accord, In re J.A.
(2020) 47 Cal.App.5th 1036, 1046 [while substantial evidence
may consist of inferences, any inferences must rest on the




                                12
evidence; inferences based on speculation or conjecture cannot
support a finding].)
      2. A Parent’s Lack of Insight May Be Considered by the
         Juvenile Court When Assessing Whether a Child May
         Safely Be Returned Home
       Emphasizing the juvenile court recognized that
Georgeanne had resolved her marijuana problem by the time of
the section 366.22 hearing and had satisfactorily completed her
court-ordered programs and services, in her briefing Georgeanne
contends lack of insight is not a valid ground for finding Lucas’s
return to her home would create a substantial risk of detriment
to his safety or physical or emotional well-being: “We judge
people on what they do, not what they think.”10
       In support Georgeanne relies primarily on Blanca P. v.
Superior Court (1996) 45 Cal.App.4th 1738 (Blanca P.), in which
the court of appeal criticized the juvenile court’s reliance on the
social worker’s view that the parents had not sufficiently
internalized proper parenting skills to support a finding of
detriment if the children were returned to them. Georgeanne
quotes a portion of the court’s vivid language, “The idea that,
despite enduring countless hours of therapy and counseling
(much of it predicated on the possibly erroneous assumption that
her husband is a child molester), a parent who has faithfully
attended required counseling and therapy sessions must still


10   When questioned at oral argument, Georgeanne’s appellate
counsel appeared to retreat from the absolutist position that a
parent’s lack of insight into the problem creating the need for
dependency jurisdiction could never be a valid factor when
evaluating the safety of returning the dependent child to the
parent’s care.



                                13
relinquish her child because she has not quite ‘internalized’ what
she has been exposed to has an offensive, Orwellian odor. The
failure to ‘internalize’ general parenting skills is simply too vague
to constitute substantial, credible evidence of detriment. To hold
otherwise would come perilously close to allowing legal decisions
of monumental importance to the persons involved to be based on
nebulous ideas more appropriate to an afternoon talk show than
a court of law.” (Id. at p. 1751, fn. omitted.)11
      Georgeanne also directs us to In re Jasmine G. (2000)
82 Cal.App.4th 282 (Jasmine G.) and M.G., supra, 46 Cal.App.5th
646. In Jasmine G., a case in which dependency jurisdiction was
predicated on the parents’ use of inappropriate forms of corporal
punishment, the court held the social worker’s opinion that the
parents “apparently lacked a ‘full understanding’ of their 15-year-
old daughter’s adolescent ‘issues’” did not support the disposition
order removing the child from the parents’ custody. (Jasmine G.,
at pp. 284-285 [“Excuse us—but what parent doesn’t that
describe?”].)



11    The mother in Blanca P. was ambivalent about believing
the father had sexually molested their daughter; the father never
acknowledged he had done so. The principal ground for issuing
the extraordinary writ and ordering a new permanency review
hearing was the insufficiency of the evidence that any sexual
abuse had occurred. (See Blanca P., supra, 45 Cal.App.4th at
p. 1760 [“If, at the new 18-month hearing, the juvenile court finds
that Rogelio did not commit child molestation, then (assuming
there are no new developments that would warrant otherwise)
the children should be returned to their parents; that is the logic
of our decision that there is no support for a detriment finding
apart from the molestation allegations”].)



                                 14
       The Jasmine G. court explained, “The case before us is
remarkable for the clear and convincing evidence that it was safe
to return Jasmine to either of her parent’s homes. Both parents
had forsworn corporal punishment of teenagers. Both expressed
remorse for having used corporal punishment on Jasmine. Both
had attended parenting classes, and both had undergone therapy
to improve their parenting skills. Jasmine had no fear of either.
One therapist opined it was totally safe to return the child and
the other simply had ‘no recommendation’ (in a context where it
was not at all clear that her ‘hesitancy’ went to Jasmine’s
physical safety, as distinct from what was merely optimum).
Jasmine herself wanted to go home.” (Jasmine G., supra,
82 Cal.App.4th at pp. 288-289.) Against this background, the
court held, the social worker’s subjective belief that Jasmine’s
admittedly strict parents lacked an adequate understanding of
their roles in the incident that triggered the dependency court’s
intervention and had not sufficiently internalized parenting skills
did not constitute clear and convincing evidence of substantial
danger as required by section 361 before a child may be removed
from the custody of his or her parent. (Jasmine G., at p. 289.)
       In M.G., supra, 46 Cal.App.5th 646, a different panel of the
same division that had decided both Blanca P. and Jasmine G.
considered a juvenile court’s findings of detriment based on its
concerns the mother’s relationship with her former boyfriend,
P.B., was a threat to her sobriety, and the father’s lack of insight
concerning his responsibility for the events that led to
dependency jurisdiction. (M.G., at pp. 658-659.) The M.G. court
found those findings were not supported by substantial evidence:
“SSA [the child welfare agency] failed to articulate specific
reasons why or how the children would be at risk if placed in




                                15
Mother’s or Father’s care. The juvenile court’s ruling relied on
SSA’s vague and nebulous concerns that were not supported by
evidence. The court stated it had no concerns with the parents’
substance abuse. It focused on Mother’s relationship with P.B.,
even though Mother testified she was merely friends with P.B.,
and her therapist testified she had no concerns about Mother’s
relationship with P.B. SSA produced no evidence contradicting
that evidence. In short, the court based its concerns on a hunch
that was not supported by any evidence, stating Mother’s
relationship with P.B. was ‘a risk to you and your sobriety.’
Furthermore, this contradicted the court’s determination
Mother’s sobriety was no longer an issue. [¶] The juvenile court
stated Father had ‘an issue with respect to insight,’ but did not
state what evidence supported this characterization.” (Id. at
pp. 661-662.)
       None of these cases holds a parent’s lack of insight may not
be considered by the juvenile court at the section 366.22
permanency review hearing. Rather, as the court explained in
Blanca P. after reviewing earlier authority on the point, before
the qualitative evaluation as to the effectiveness of counseling,
therapy or parenting classes can constitute sufficient evidence to
support a finding of detriment, the psychologist’s or social
worker’s opinion must be “based on evidence rather than an
emotional response. To paraphrase Gertrude Stein’s famous
dictum, there must be something there there.” (Blanca P., supra,
45 Cal.App.4th at p. 1750.)
       It was on exactly this basis that our colleagues in
Division Five of this court, in Constance K. v. Superior Court
(1998) 61 Cal.App.4th 689, distinguished Blanca P. as involving
“conclusory reports which find no corroboration in the conduct of




                                16
the parent” (Constance K., at p. 693), and held at a section 366.22
hearing, even if the parent has fully complied with the
reunification plan, the court may consider “properly supported
psychological evaluations which indicate return to a parent would
be detrimental to a minor.” (Constance K., at p. 705.) Similarly,
in In re Dustin R. (1997) 54 Cal.App.4th 1131, the court of appeal
held compliance with the reunification plan need not be the sole
concern of the juvenile court. (Id. at p. 1139.) “[S]imply
complying with the reunification plan by attending the required
therapy sessions and visiting the children is to be considered
by the court; but it is not determinative. The court must
also consider the parents’ progress and their capacity to meet the
objectives of the plan; otherwise the reasons for removing the
children out-of-home will not have been ameliorated.” (Id. at
p. 1143; see In re Jacob P. (2007) 157 Cal.App.4th 819,
830 [although “usually the case, a parent’s compliance with the
case plan is not a guarantee the child will be returned to the
parent”].) Indeed, section 366.22, subdivision (a), expressly
requires the juvenile court, in assessing whether returning the
child to his or her parent would create a substantial risk of
detriment, to consider all admissible, relevant evidence.
(See generally In re Shaputis (2011) 53 Cal.4th 192, 219 [inmate’s
current attitude toward past criminal conduct may be a
significant predictor of future behavior should parole be
granted].)
       Moreover, as a victim of domestic violence, Georgeanne’s
insight into the risks potentially created for Lucas by her
relationship with Arthur, a man who had committed felony
spousal rape, is a far cry from the perceived failure to internalize
general parenting skills or to understand teenage angst as




                                17
considered in Blanca P. and Jasmine G. It is similar, as
Georgeanne points out, to the social worker’s concern in M.G. for
the threat posed to the mother’s sobriety by her friendship with
an ex-boyfriend. But, as discussed, the court in M.G. issued the
extraordinary writ because the juvenile court had found the
mother’s sobriety was no longer an issue and the social worker’s
concern was not only unsupported by any evidence but also
contradicted by the testimony of the mother’s therapist, not
because consideration of the mother’s recognition of potential
dangers to her continuing sobriety was improper. (M.G., supra,
46 Cal.App.5th at pp. 661-662.)
      3. The Department Failed To Present Substantial Evidence
         Lucas Would Be at a Substantial Risk of Detriment If
         Returned to Georgeanne
       Properly framed, the issue before us is not whether the
juvenile court erred by considering the extent of Georgeanne’s
insight into the problem that led to Lucas’s removal from her
custody at the section 387 hearing, but the weight the juvenile
court could properly give the Department’s opinion that her lack
of insight created a substantial risk of harm to Lucas if he were
returned to her custody—that is, did substantial evidence
support the court’s finding of detriment. It did not. The
Department’s and the court’s assessment Lucas risked exposure
to family violence, even with a no-contact order or monitored
visitation for Arthur, depended on two inferences: Georgeanne
would violate the court order, and Arthur would commit (or was
likely to commit) an act of violence against Georgeanne or
perhaps Lucas. Neither essential inference had a basis in the
evidence.




                                18
       Certainly, Arthur committed a serious act of violence
against his ex-wife, for which he was convicted of a felony and
placed on probation. But there was no evidence he engaged in
any physical or verbal abuse toward Georgeanne during the
22 months they had been living together. Nor was there reason
to believe, if violence were threatened, Georgeanne would be a
passive victim and unable to protect Lucas. To the contrary,
although she had not reported previous incidents of domestic
abuse, in September 2017 Georgeanne notified law enforcement
that Sean had hit her and threatened her life and obtained a
restraining order protecting both her and her child.12 In addition,
Georgeanne has now successfully completed the program for
victims of domestic violence ordered by the court.
       While the Department and the juvenile court are justifiably
aware that patterns of domestic violence are often repeated in
new relationships, a finding of risk of harm to a child must be
based on more than conjecture or a theoretical concern. (See
M.G., supra, 46 Cal.App.5th at p. 663 [“We are puzzled and
dismayed by the juvenile court’s willingness to accept Ford’s
testimony based on a theoretical and speculative future cycle of
violence involving Mother. Simply put, there was no evidence,
much less substantial, of any risk or detriment to the children”].)
Here, other than Arthur’s single past (serious) criminal act with a




12    As noted, it is unclear whether the juvenile court sustained
the domestic violence count against Sean. In any event, neither
the original nor the amended version of that count alleged Lucas
was placed at risk because Georgeanne was unable to protect him
from exposure to Sean’s violence.



                                19
different victim, there is no evidence he posed a risk of violence
toward Georgeanne or Lucas.13
       Whatever theoretical risk Arthur might pose, moreover,
could be effectively neutralized by continuing court supervision
and services while returning Lucas to Georgeanne’s care. The
Department’s concern, adopted by the court, that Georgeanne
would violate a no-contact order was speculative. To be sure,
Georgeanne testified she believed Arthur could be a good father
to Lucas and hoped she, Arthur, Lucas, Liam and the child she
was then expecting could all live together as a family—a goal
reflected to a large extent by the court’s case plan in Liam’s
dependency proceeding. But Georgeanne acknowledged her
violation of the no-contact order in January 2018 was, in
substantial part, the basis for the Department’s section 387
petition and the reason Lucas was removed from her custody.
She testified she would abide by any future order for monitored

13     In an addendum report for the June 12, 2019 disposition
hearing for Lucas’s half-sibling Liam (Arthur and Georgeanne’s
son), the Department advised the court that, according to Liam’s
paternal grandmother, Arthur had described an incident during
which Georgeanne “had ‘pounded’ on his head while he drove
because he had suggested that the mother do some things which
made the mother angry.” The report also attached a February
2019 text message from Arthur to Liam’s paternal aunt in which
he described the same event. Although Georgeanne testified the
account was false, the juvenile court referred to it and observed,
“So they [Arthur and Georgeanne] still have a strange
relationship that needs to be addressed and dealt with, which is
why I think they’re in the couples counseling.” The court,
however, did not rely on this episode in determining there was a
substantial risk of harm to Lucas if returned to Georgeanne’s
home.



                                 20
visitation between Lucas and Arthur, or a no-contact order if one
remained in place, even though she did not believe it was
necessary. Although Georgeanne appeared to be financially
dependent on Arthur, the father of two of her children, nothing in
the record suggested that his support would end if the no-contact
order continued or that she had not benefitted sufficiently from
her parenting classes and individual counseling to understand
the importance of complying with a court order restricting
Arthur’s interaction with Lucas.
       Through the section 366.22 permanency review hearing,
family preservation remains the priority in dependency
proceedings. (In re Taylor J. (2014) 223 Cal.App.4th 1446, 1451
[“[f]amily preservation is the first priority in dependency
proceedings unless parental rights are terminated”]; see M.G.,
supra, 46 Cal.App.5th at p. 659; David B. v. Superior Court
(2004) 123 Cal.App.4th 768, 789.) While Georgeanne may not be
an ideal parent, the Department failed to carry its burden to
establish that returning Lucas to her home, with appropriate
safeguards in place, would create a substantial risk of detriment
to his safety or well-being. Accordingly, section 366.22,
subdivision (a), required the court to return the child to
Georgeanne’s physical custody.
                           DISPOSITION
       The petition for extraordinary writ is granted. Let a
peremptory writ of mandate issue directing the juvenile court to
(1) vacate its order setting a hearing for Lucas
under section 366.26, and (2) set a continued 18-month
permanency review hearing at the earliest date consistent with
the rights of the parties to prepare their case. At the new
hearing, in addition to the evidence previously presented, the




                                21
court is to consider all further evidence concerning developments
subsequent to September 17, 2019, including information from
Liam’s dependency case, relevant to the question of Lucas’s safe
return to Georgeanne. In the interest of justice, this decision
shall become final as to this court five days from the date it is
filed. (Cal. Rules of Court, rule 8.490(b)(2)(A).)




                                    PERLUSS, P. J.


      We concur:


            SEGAL, J.


            FEUER, J.




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