Filed 11/6/13 In re M.D. 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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 M.D. et al., Persons Coming Under
the Juvenile Court Law.

SAN FRANCISCO HUMAN SERVICES
AGENCY,
         Plaintiff and Respondent,
                                                                     A137672
v.
S.N.,                                                                (San Francisco City and County
                                                                     Super. Ct. No. JD12-3185)
         Defendant and Appellant.



         At a six-month review hearing, the juvenile court found that S.N.’s children were
at substantial risk of detriment if returned to her custody. (Welf. & Inst. Code, § 366.21,
subd. (e).)1 S.N. appeals, arguing that the juvenile court’s finding is not supported by
substantial evidence.2 We affirm.
                     I.        FACTUAL AND PROCEDURAL BACKGROUND
Section 300 Petition
         The initial section 300 petition, filed by the Los Angeles Department of Children
and Family Services (DCFS), alleged that M.D., Z.D., and Luke D. (the children) were at
risk of serious physical harm (§ 300, subd. (a)) because their parents, S.N. (mother) and

         1
             All further statutory references are to the Welfare and Institutions Code.
         2
             The children’s presumed father, Marvin D., is not a party to this appeal.

                                                             1
Marvin D. (father), had a history of engaging in physical violence in front of them.3
Specifically, it was alleged that, on January 25, 2012, father pushed mother onto a bed,
grabbed her hair, hit her in the face with his hand, and scratched her cheek and chest.
The petition also alleged that mother used excessive physical discipline against M.D. and
Luke; hitting their heads and bodies with her hand and a plastic bat. Mother also
reportedly pinched and scratched M.D.’s neck, leaving scratch marks.
Detention Report and Hearing
         The detention report indicated that five-year-old Luke was present, on January 25,
2012, when father picked up a potted plant, threw it at mother, pushed her on the bed,
grabbed her by the neck, and proceeded to punch her in the face with a closed fist. At the
time, mother reported that there had been 10 other incidents of domestic violence. In an
earlier 2008 incident, father sustained scratches to his face and back of his head after he
and mother got into a physical altercation. Mother was arrested due to the injuries
sustained by father, and was also accused of having pulled M.D.’s hair.
         When interviewed by a social worker, the children confirmed that mother spanked
with both an open hand and closed fist, and sometimes with a plastic bat or belt. M.D.
had been previously “choked” by her mother, sustaining bruises and scratches on her
neck. The children also confirmed that they saw their parents yelling and hitting each
other.
         Mother admitted that she spanked the children, but claimed it was not abuse. She
also admitted scratching M.D., but maintained it was accidental. According to mother,
M.D. was prone to misinterpreting things due to having had encephalitis as a small child.
Both parents admitted to a history of domestic violence but denied that it was an ongoing
issue. The social worker concluded: “The parents’ extensive history of domestic
violence in the home poses an imminent danger of serious physical and emotional harm
to the children. [¶] Several safety factors are present, and placement is the only protective
intervention possible for [the] children.”

         3
        Allegations under section 300, subdivisions (b) and (j), were also made and later
dismissed.

                                              2
       On April 24, 2012, the juvenile court ordered the children detained in the maternal
great uncle’s care. At the time of detention, DCFS recommended that mother undergo
domestic violence awareness counseling, individual/family counseling, anger
management counseling to address the physical abuse of the children, parenting classes,
and a psychological/psychiatric evaluation with follow-up treatment as recommended.
Jurisdiction/Disposition Report and Determination
       By the time the jurisdiction report was filed in May 2012, the children claimed
that they had been hit with a belt, but had never been hit with a plastic bat. Instead, both
M.D. and Z.D. claimed that they had been playing with bats and hit themselves. M.D.
also confirmed that her parents yell, curse, and fight in front of her, and recalled an
instance where father shoved mother into a wall. M.D. recalled seeing mother clean up
blood from her arm. Luke reported that “ ‘[his] mom closed the trunk on [his] sister’s
fingers on purpose’ ” and then “ ‘walked away.’ ” Mother’s former roommate also
informed a social worker that she personally witnessed mother hitting the children,
specifically recalling that she saw mother smack Luke in the face on a few occasions.
       Mother admitted spanking and using a plastic bat to discipline the children. But,
she said “ ‘[i]t’s not abuse in my mind’ ” because it was “ ‘one tap or two taps’ ” and “ ‘it
wasn’t on the face.’ ” She denied hitting the children anywhere in the rib cage area.
Father told the social worker that he “ ‘step[ped] in’ ” as needed to “ ‘make sure [mother]
does not get carried away’ ” when disciplining the children.
       Although mother once claimed that father hit her during the January 2012
altercation, she now claimed that she hit herself during the scuffle. Mother explained that
the parents remained living together, between January 2012 and April 2012, because it
was “ ‘ridiculous’ ” to obtain a permanent restraining order because she believed father
needed to interact with the children.
       At the May 31, 2012 hearing, Mother pleaded no contest to the jurisdictional
allegations and dependency was declared pursuant to section 300, subdivision (a).
Mother was ordered to participate in individual counseling with an approved counselor
addressing “parenting” and “domestic violence.” Mother was also ordered to engage in a

                                              3
domestic violence support group for victims, to take a parenting class, and to verify a
sober and stable lifestyle. The court further ordered that mother “sign any form
necessary to release information to DCFS with regard to all court ordered counseling,”
and that there would be “no corporal punishment” inflicted on the children. After the
detention order, the children had moved to San Francisco to live with their maternal
grandmother, and mother had moved to San Francisco as well. Accordingly, the juvenile
court ordered the children removed from parental custody, placed them in the home of
the maternal grandmother and transferred the case to San Francisco.
       Upon assuming jurisdiction, the San Francisco Superior Court ordered that the
care and custody of the children rest with the San Francisco Human Services Agency
(Agency). The children continued to reside with their maternal grandmother.
Request to Change Court Order
       On August 2, 2012, mother filed a request to change a court order seeking
permission to move into the maternal grandmother’s home and reside with the children,
or have unmonitored visits, or have the children placed in her home. Mother reported
that she was no longer in a relationship with father, had completed a six-hour parenting
course, was attending individual therapy, and took care of the children’s daily needs in a
supervised setting. The court set the petition for a hearing.
       On August 3, 2012, an interim review report acknowledged that mother had
completed a six-hour parenting class. However, the social worker did not believe that a
six-hour class was sufficient to address the 11-year domestic violence relationship
between mother and father and the effects of that violence on the children. Mother’s
request for a parent education program that could be completed in a day because she
“ ‘want[ed] to get it over with’ ” indicated to the social worker that mother was only
superficially fulfilling her requirements, and not taking the opportunity to gain insight
and understanding into how her violent relationship with father was emotionally harmful
to her children. Mother continued to deny that the children actually witnessed any
domestic violence. The report also noted that mother refused to participate in a domestic



                                             4
violence support group. Mother also refused to acknowledge that she was violent
because she believed only “people who did not go to college are violent.”
       Mother was participating in individual therapy, but between May and July, had
missed three sessions. Her therapist opined that mother was still in denial and was
minimizing the effects of domestic violence on the family. Mother also did not appear to
understand the trauma that the children endured through the years of domestic violence,
or that the children could still be negatively affected by the tension, conflict, and
arguments between the parents even if they were not in the immediate vicinity of
domestic violence. The Agency recommended that mother’s petition be denied and the
matter continued to the six-month review hearing.
       On September 4, 2012, mother requested a restraining order against father, based
on allegations that he was stalking her and leaving messages threatening to kill and
mutilate her. She also based the request on the couple’s history of domestic violence,
describing incidents from 2011 and early 2012. The court granted a temporary
restraining order on September 5, but mother unilaterally withdrew the restraining order
application at the September 17, 2012 hearing on her petition for a change of court order.
At that hearing, the parties also stipulated for mother to have unsupervised day visits and
two overnight visits per week at the grandmother’s home.
Six-Month Review
       On November 9, 2012, the Agency filed a status review report, which
acknowledged that mother completed a parenting class and a psychological evaluation,
with test results still pending. Mother told the social worker that “[she] realized that it
was not appropriate for her to even tap the children with a plastic bat in the past.”
Instead, she now used praise and a point system to reward good behavior. Mother also
told the social worker that she now recognized that she does not need to be in a
relationship with someone who does not treat her well. However, Dr. Amy Watt, the
psychologist who performed mother’s evaluation, informed the social worker that mother
was in denial and minimized the domestic violence. Mother also refused to deal with any
anger issues and presented with much grandiosity.

                                              5
       The report further noted that mother began individual therapy with Desdemonia
Whittle at the end of August 2012. Whittle stated that mother was in denial regarding her
anger, refused to admit that she has negative emotions, and instead believed that she was
a happy person. Mother also refused to believe that therapy was necessary. Whittle
opined that mother was only attending therapy to fulfill her requirements to regain
custody of the children. The therapist expressed concern regarding mother’s denial as
well as her lack of insight into her financial condition. In particular, the therapist was
apprehensive of mother’s plan to move back to Los Angeles and hire an au pair for the
children.
       Mother had been visiting the children consistently and had completed a series of
parenting classes, in which she was an active participant. Mother also completed a
domestic violence counseling program, but according to the case manager, mother did not
identify herself as a victim of domestic violence, instead asserting that she was in control
of the relationship. Thus, she did not actively participate in the support group. Further,
mother stated that she ended the relationship with father not because she cared for the
safety of her children, but because he did not have sufficient money for her. Mother also
believed that, when she moved back to Los Angeles, father would likely follow the
family.
       Based on the above information, the social worker opined that mother had been
participating “consistently” in her case plan, but failed to fully comprehend the reasons
for the court’s involvement, the effects of domestic violence on her and her children, or
the purpose of the reunification services. Mother’s attitude indicated that she had an
unrealistic perception of reality. The social worker acknowledged mother’s love for the
children, but opined that reunification was premature. Accordingly, she recommended an
additional six months of services to allow mother to continue her participation in court-
ordered services.
       On January 9, 2013, the Agency filed an addendum report. Since the last report,
Z.D. reported that he had seen mother push M.D. Mother denied the incident. Mother
also unilaterally discontinued therapy sessions with Whittle after only 12 sessions.

                                              6
Whittle said she confronted mother about her refusal to meaningfully engage in therapy,
and mother responded by stating she “does not have any problems, but solutions.”
Mother also inquired of the social worker about when she could stop attending therapy.
       As a result of her psychological evaluation, mother was diagnosed with depressive
disorder not otherwise specified, histrionic personality disorder, narcissistic personality
disorder, poor insight, and poor reality testing.4 Dr. Watt wrote that mother’s “high
degree of self focus and her unrealistic perception of what is happening around her makes
it difficult to attend to the needs of her children.” Throughout the evaluation, mother also
repeatedly claimed to be “peaceful” and denied ever being angry or hitting anyone.
       Dr. Watt observed that mother minimized the seriousness of the domestic violence
between her and father, and spoke little of her role in the conflict. According to the
psychologist, mother also presented with a high level of grandiosity and narcissism,
conveying an image of being well-off and successful, even though the records do not
support such an impression. Dr. Watt opined that test results indicate a “significantly
high level of defensiveness and denial of problems” and that mother “tends to minimize
any negative impact that her actions may have on other people and on herself.” Dr. Watt
concluded that “[a]s [mother] does not believe there are any problems in the family, she
is unlikely to seek help or accept help offered to her.” In addition, mother’s decision to


       4
          Mother argues that the psychological evaluation attached to the addendum report
should not have been admitted into evidence over her objection that it was untimely.
(See § 366.21, subd. (c) [requiring status report to be filed and served at least 10 calendar
days before hearing]; Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, 539–540,
558 (Judith P.) [holding failure to serve status report until morning of hearing constituted
structural error compelling reversal and remand of trial court’s order].) Even if we
assume that Judith P. is still good law (see In re Celine R. (2003) 31 Cal.4th 45, 58–59
[critiquing analogy to criminal structural error doctine]), its holding only “mandates that
any party to a dependency proceeding who did not receive the status report at least 10
days before a prepermanency planning review hearing must be granted a continuance or
must expressly waive his or her right to the timely service of such report.” (Judith P., at
p. 558, italics added.) Here, however, after objecting to the late report, mother rejected
the trial court’s offer to continue the hearing. Judith P., supra, 102 Cal.App.4th 535 did
not hold that an untimely report should be excluded from evidence in such a situation.

                                              7
“maintain an ongoing conflict laden relationship with the children’s father” is also
“detrimental to the children’s emotional development.”
          The Agency continued to recommend additional services before reunification.
The social worker wrote: “Returning the children to either [parent’s] care and home is
contrary to their well being and best interests because (1) [neither] parent has . . .
completed their reunification services case plan; (2) their current status is still unstable
regarding . . . housing, employment; (3) there [are] still concerns about the mother’s
ability to put the children’s needs before hers; (4) there are still concerns about the
parents not involving the children in their domestic violence relationship; and (5) there
are still concerns about whether the parents will use [the] children to manipulate each
other.”
          At the contested six-month review hearing, held on January 15, 2013, the social
worker testified that mother had completed some, but not all, of the reunification
requirements. The social worker testified that mother began individual therapy in
May 2012, but unilaterally discontinued it in December 2012. Thus, mother did not
complete the individual therapy component of her case plan. Mother’s counsel
represented that mother was seeking a new therapist, but the social worker had been
unable to obtain any information from the new therapist.
          Mother completed the domestic violence support group component of her plan, as
well as the parenting class. Although mother was able to articulate her understanding
that it was important to keep the children safe and free from domestic violence, it was the
social worker’s opinion, based on her personal observations and discussions with
mother’s therapist, case manager, and psychologist, that mother had not gained sufficient
insight into her domestic violence history.
          Mother testified on her own behalf. She described her visits with the children and
provided testimony on what she learned in parenting classes, therapy, and the domestic
violence support group. She admitted, however, that she never received any letter or
certificate indicating that she completed the therapy component of her reunification plan.



                                               8
       Mother admitted that her relationship with the father was violent for at least the
last five years, that the police were called on at least four occasions, and that the children
witnessed two of these altercations. Mother also admitted that in one of the altercations
that the children witnessed, she was arrested and was a mutual combatant in the violence.
Mother initially claimed that she learned to control her temper in the parenting class, but
later denied that she had any anger issues.
       At the conclusion of the evidence, the juvenile court found that conditions still
existed justifying the court’s assumption of jurisdiction, and further found that returning
the children to their mother’s physical custody would create a substantial risk of
detriment to their safety, protection, emotional or physical well-being. The court
explained: “[N]either parent has completed their reunification requirements. There has
been progress, and I want to acknowledge that and not lose sight of it. But in light of this
history of domestic violence in this case, and the evaluator’s report . . . that mom is going
through the motions, that is troublesome to me, and I think that more services are
needed.” The court ordered an additional six months of services, with the goal of
returning the children home at the next review hearing. Mother filed a timely notice of
appeal.
                                     II.      DISCUSSION
       On appeal, mother challenges only the juvenile court’s detriment finding and
argues that it is unsupported by substantial evidence. We disagree.
       At the six-month review hearing, the juvenile court is required to return the
dependent child to the parent’s physical custody unless it finds, by a preponderance of the
evidence, that return “would create a substantial risk of detriment to the safety,
protection, or physical or emotional well-being of the child. . . . The failure of the parent
. . . to participate regularly and make substantive progress in court-ordered treatment
programs is prima facie evidence that return would be detrimental. In making its
determination, the court shall review and consider the social worker’s report and
recommendations and the report and recommendations of any child advocate appointed
pursuant to Section 356.5; and shall consider the efforts or progress, or both,

                                               9
demonstrated by the parent . . . and the extent to which he or she availed himself or
herself to services provided . . . . [¶] Regardless of whether the child is returned to a
parent . . . , the court shall specify the factual basis for its conclusion that the return
would be detrimental or would not be detrimental.” (§ 366.21, subd. (e), italics added.)
       We review the substantial risk of detriment finding for substantial evidence.
(Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763; In re Shaundra L. (1995)
33 Cal.App.4th 303, 316.) “We do not evaluate the credibility of witnesses, reweigh the
evidence, or resolve evidentiary conflicts. Rather, we draw all reasonable inferences in
support of the findings, consider the record most favorably to the juvenile court’s order,
and affirm the order if supported by substantial evidence even if other evidence supports
a contrary conclusion.” (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947; accord, In re
J. I. (2003) 108 Cal.App.4th 903, 911.)
       “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.] [¶] In evaluating detriment, the
juvenile court must consider the extent to which the parent participated in reunification
services. [Citations.] The court must also consider the efforts or progress the parent has
made toward eliminating the conditions that led to the child’s out-of-home placement.
[Citations.]” (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1400.) A parent is not
required to demonstrate perfect compliance with a case plan. (Jennifer A. v. Superior
Court (2004) 117 Cal.App.4th 1322, 1343.) “[T]he question whether to return a
dependent child to parental custody is not governed solely by whether the parent has
corrected the problem which required court intervention; rather, the court must consider
the effect such return would have on the child.” (In re Joseph B. (1996) 42 Cal.App.4th
890, 894.)



                                               10
       Mother argues that she “not only substantially complied with her case plan, but
there was no identified risk of harm to the children if they were returned to [her]
custody . . . .” Mother completed the parenting class and domestic violence support
group components of her case plan. However, mother unilaterally discontinued her
individual therapy. Mother relies on Jennifer A. v. Superior Court, supra,
117 Cal.App.4th at pages 1344–1345, but here, unlike the circumstances of that case,
mother’s imperfect compliance with her case plan is directly linked to the issues that
brought the children into the dependency system. And, even if mother had technically
complied with her case plan, that alone would not answer the detriment question. (In re
Yvonne W., supra, 165 Cal.App.4th at p. 1400; In re Dustin R. (1997) 54 Cal.App.4th
1131, 1141–1142 [“[a]vailing herself of the services provided is one consideration . . . but
. . . the court must also consider progress the parent has made towards eliminating the
conditions leading to the children’s placement out of home”].) Mother’s actions, as well
as the reports from her therapist and the psychological evaluator, reveal that mother failed
to demonstrate adequate progress towards ameliorating the conditions that caused the
children’s removal in the first place—domestic violence and excessive physical
discipline.
       For example, despite mother’s and father’s long history of domestic violence and
mother’s participation in a domestic violence support group, mother continued to
minimize the issue and failed to follow through with a restraining order when father
purportedly stalked and threatened her. And, despite her completion of several parenting
classes, there was evidence that mother had pushed M.D. during a visit and denied having
any anger problem.5 The juvenile court’s detriment finding is supported by substantial
evidence.

       5
        Mother attempts to discredit this evidence by suggesting that Z.D., who reported
the pushing incident, has “a known tendency to lie.” She also points out that the social
worker did not adjust mother’s unmonitored visitation after the report. However, we
cannot dismiss this evidence without ignoring the standard of review. (See In re L. Y. L.,
supra, 101 Cal.App.4th at p. 947 [“we draw all reasonable inferences in support of the
findings, consider the record most favorably to the juvenile court’s order, and affirm the

                                             11
       In re Yvonne W., supra, 165 Cal.App.4th 1394 does not compel a contrary
conclusion. In that case, the reviewing court concluded a detriment finding was
unsupported by substantial evidence when the mother “did everything [the social services
agency] asked of her, including eliminating the conditions that led to [the child’s] out-of-
home placement.” (Id. at p. 1401.) This case is distinguishable, in that mother did not
comply with every aspect of her reunification plan. And, the juvenile court could
reasonably conclude that mother was merely making superficial efforts and had not
eliminated the conditions that caused the children’s removal.
       Mother’s reliance on Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738 is
similarly misplaced. In that case, the reviewing court criticized the juvenile court’s
reliance on vague statements by the social worker that the mother had failed to
“ ‘internalize’ ” parenting skills. (Id. at p. 1751.) The detriment finding was made in
reliance on the fact that the mother and the father continued to deny molestation
allegations, even though those allegations had since been discredited by an expert. (Id. at
pp. 1741–1744, 1752–1753.) In contrast, here, the truth of the domestic violence and
physical abuse allegations has not been questioned. Furthermore, there was evidence of
mother’s actions, in addition to statements by the social worker, therapist, and
psychological evaluator, which demonstrated that mother had not made sufficient
progress in eliminating the underlying problems.
                                   III.   DISPOSITION
       The juvenile court’s order is affirmed.




order if supported by substantial evidence even if other evidence supports a contrary
conclusion”].)

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                                 _________________________
                                 Bruiniers, J.


We concur:


_________________________
Jones, P. J.


_________________________
Needham, J.




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