Filed 9/28/15 In re C.K. CA3
                                           NOT TO BE PUBLISHED



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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                        (Trinity)
                                                            ----




In re C.K., a Person Coming Under the Juvenile Court                                         C076648
Law.

TRINITY COUNTY HEALTH AND HUMAN                                                 (Super. Ct. No. 13JU0011B)
SERVICES,

                   Plaintiff and Appellant,

         v.

A.K.,

                   Defendant and Appellant;

C.K.
                   Respondent.




                                                             1
        A.K. (mother) appeals from juvenile court orders (issued at the 12-month review
hearing) continuing the placement of the minor C.K. with the paternal grandmother and
extending mother’s reunification services for six months. (Welf. & Inst. Code, § 366.21,
subd. (f).)1 Mother contends substantial evidence does not support the juvenile court’s
finding that returning the minor to mother’s custody would cause detriment to the minor.
Co-appellant Trinity County Department of Health and Human Services (the department)
joined mother’s opening brief on September 11, 2014.
        We conclude substantial evidence supports the juvenile court’s finding. We will
affirm the juvenile court orders.
                                     BACKGROUND
        In April 2013, the department filed a petition under section 300, subdivision (b), as
to the 10-year-old minor, alleging that mother and other adults abused methamphetamine
and marijuana in mother’s home and that mother engaged in domestic violence with her
boyfriend. The minor’s presumed father, R.K., previously had custody of the children,
but he died in a house fire in January 2011. After that, mother took them back.
        The detention report stated that the minor and his 13-year-old sister, H.K., had
been placed voluntarily by mother with J.R., a teacher at their school. However, the
teacher was having financial difficulty caring for both minors. The paternal grandmother,
S.K., had lived in Santa Cruz and later moved to Felton. She once had temporary legal
guardianship of the children and had been approved as a caregiver for them. The teacher
had been approved as a caregiver only for the minor.
        Mother had used methamphetamine for the last three years and had been
repeatedly arrested on drug-related charges. She had tested positive for
methamphetamine and THC after her most recent arrest in February 2013. Her boyfriend




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

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had been arrested on domestic violence charges and more recently on drug-related
charges, and was now incarcerated in the local jail.
       At the initial hearing in April 2013, the juvenile court ordered the minor detained
in the teacher’s home until the end of the school year, then moved to the grandmother’s
home (where the minor’s sister was already residing).
       The jurisdiction report recommended sustaining the section 300 petitions as to
both minors.2 The report stated that mother, who was still on probation after a January
2013 drug possession conviction, had not protected the children from the boyfriend or
from her own substance abuse.
       At the jurisdiction hearing, mother submitted on the report. The juvenile court
sustained the section 300 petitions.
       The disposition report recommended out-of-home placement for the minor and
reunification services for mother. Mother said she had ceased using methamphetamine
after February 2013; she used medical marijuana, but would abstain from it during the
reunification period. She was “ashamed and embarrassed” about her conduct and was
willing to do whatever was necessary to reunify with her children.
       Placement of the minor with the grandmother was acceptable. The minor was
developmentally on track and mentally and emotionally stable, but his grades had
slipped.
       Mother had visited the children as scheduled, but the minor wanted to see her
more often. Visitation at least once a month was recommended.
       At the disposition hearing in June 2013, the juvenile court ordered out-of-home
placement for the minor and reunification services for mother.




2 The sister’s petition was filed under a different case number. The sister is not involved
in this appeal.

                                             3
      In September 2013, the juvenile court held a hearing on visitation. Mother
claimed the grandmother was thwarting telephone contact with the children, but the
department disagreed. The juvenile court ordered the children to call mother once a week
and gave mother permission to call at other times.
      The six-month status review report, filed in November 2013, recommended
continued out-of-home placement and reunification services.
      Mother had recently moved from an isolated location to one where services and
transportation were more easily accessible. Her compliance with services, “adequate”
before, was now “excellent.” Visitation had gone well, though mother still felt she was
not getting enough telephone contact. The minor was doing well in his placement, but
said he missed mother. The grandmother was willing to undertake legal guardianship or
adoption if necessary.
      At the six-month review hearing, the juvenile court continued the minor’s
placement and mother’s services. The juvenile court gave the department discretion as to
unsupervised visitation.
      The 12-month status review report, filed in April 2014, recommended returning
the minor to mother’s custody at the end of the school year, with six months of
supervised family maintenance and review at the end of that time.3
      Mother had complied substantially with her case plan as to parenting education,
substance abuse treatment, and drug testing. She had obtained a one-bedroom apartment,
but would seek a bigger place if given custody; however, “housing and income have




3 As to the sister, the department recommended terminating mother’s services and setting
a section 366.26 hearing. The sister expressed a strong desire to stay with the
grandmother and also expressed a distrust of mother. At 14, she was old enough for the
juvenile court to respect her wishes. However, the juvenile court did not terminate
mother’s services.

                                            4
continued to be a primary struggle” for her. Visitation had gone well, but unsupervised
visitation had not yet occurred.
       The minor remained developmentally on track and mentally and emotionally
stable, but he was still performing below grade level in school, despite receiving tutoring
and making “tremendous progress.” He might have a learning disability. He had been
assessed for an Individualized Education Plan (IEP).
       The minor told the social worker he wanted to live in the Santa Cruz area with the
grandmother and spend summers with mother. He felt he did better in school with the
help of the grandmother and tutoring. But if mother could get tutoring for him, he would
want to stay with her.
       At the 12-month review hearing on April 24, 2014, the department presented the
minor’s just-prepared IEP to the juvenile court.
       County counsel stated that she had recently spoken to the minor and the sister
separately; they had a very close sibling bond. The minor wanted to keep going to the
school he now attended and feared he would lose focus in school if he returned to
mother’s home.
       County counsel noted that mother still did not have good access to transportation
for school, tutoring, and extracurricular activities. Counsel proposed that the juvenile
court adopt the report’s recommendations for three months, then review the matter.
       The juvenile court stated that mother had done good work and it seemed early to
stop the process, but the minor’s desires were also understandable. The juvenile court
was “open to suggestions.”
       Mother’s counsel stated that mother had made “incredible” efforts and succeeded
at everything she had been asked to do, but the children had not been able to see it. The
grandmother had tried to thwart reunification, frustrating visitation and “demonizing”
mother to the children. Counsel proposed returning the minor and the sister to mother’s



                                             5
custody for the summer at the end of the school year, then keeping the minor in mother’s
home and determining the sister’s wishes at that time.
          County counsel proposed taking the children’s testimony in chambers. The
juvenile court did so.
          The minor testified that he would like to stay in the Santa Cruz area until the end
of the school year, go to mother’s home for the summer, and see how he felt at the end of
the summer. He had no concerns about going back to mother’s home; he would feel safe
there.4
          Back in open court, the juvenile court stated that it would not return the minor to
mother at the end of the school year. Instead, the juvenile court would continue mother’s
services and allow the minor to have an extended home visit over the summer, then
review the matter at the end of summer.
          County counsel asserted that since mother had done everything asked of her, the
juvenile court had to make a finding of detriment to the minor before it could refuse to
return him to mother’s custody.
          The juvenile court found detriment to the minor as follows: the minor felt he
would not thrive in school if returned to mother’s custody, and both children were “quite
committed to remaining in the [Santa Cruz] area.” The children’s need for stability was
paramount. More time was needed “to determine whether there would be a continu[ing]
detriment.”




4 The sister did not want to relocate to mother’s home even for the summer. She had too
many bad memories of life there. She did not believe mother’s claim that a flat tire had
prevented her from making a visit, but if it were true, mother could not be relied on to
provide transportation. The grandmother had not frustrated visitation or done anything
else mother alleged. The sister was happy where she was now, surrounded by friends and
family, and did not want to start all over with school. She wanted stability in her life.

                                                6
          Mother’s counsel stated that mother could provide a tutor for the minor. County
counsel asserted that mother did not need to provide transportation to school because the
school was walking distance from her home.
          The juvenile court replied: “I’m sticking to my order.” The juvenile court then
spelled out its order: “[The minor] remains placed with his grandmother. He will visit
his mom for 30-day increments beginning at the end of school, returning for a touchdown
[sic] at his grandma’s house, and then going back. And those dates can be worked out
specifically by the department. I will delegate to the department the authority to set those
specific dates. But the visits will be in approximately one-month increments.” A review
hearing would be set at the end of summer, and a six-month review in October 2014.
          The juvenile court entered written findings and orders consistent with its verbal
orders.
                                         DISCUSSION
          Mother, joined by the department, contends substantial evidence does not support
the juvenile court’s finding of detriment to the minor from an immediate return to
mother’s custody. We disagree.
          “ ‘At the dispositional hearing, and at each review hearing prior to permanency
planning, there is a statutory presumption that the child will be returned to parental
custody. . . . At 6-, 12-, and 18-month review hearings the juvenile court must return the
child to the custody of the parent unless it determines, by a preponderance of the
evidence, that return of the child would create a substantial risk of detriment to the child’s
physical or emotional well-being.’ [Citation.] . . . (In re Marilyn H. [1993] 5 Cal.4th
[295,] 307.)” (David B. v. Superior Court (2004) 123 Cal.App.4th 768, 789 (David B.).)
          The “substantial risk of detriment” standard “must be construed as 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



                                                7
than an available foster parent or other family member.” (David B., supra,
123 Cal.App.4th at p. 789.)
       “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 (Yvonne W.).)
       We review the juvenile court’s finding of substantial risk of detriment for
substantial evidence. In doing so, we construe the evidence, including reasonable
inferences, most favorably to the juvenile court’s finding. (Yvonne W., supra,
165 Cal.App.4th at pp. 1400-1401.)
       Substantial evidence supports the trial court’s finding of substantial detriment to
the minor if the minor immediately returned to mother’s custody. The minor was in
school in Felton, was receiving academic support in the form of tutoring, and was also
receiving therapy. He also had an IEP in place. The minor said he gets better grades and
is more focused in school with the guidance of his grandmother. Meanwhile, housing
and income have been a “primary struggle” for mother.
       Mother suggests the juvenile court’s finding was based on detriment to the minor’s
“emotional well-being” if placed in mother’s custody. We do not read the juvenile
court’s comments that way, but in any event, there is evidence of the minor’s concern
that he would not do as well in school if he returned to mother’s home. Mother claims
there is no evidence that she would not be able to help the minor with his schoolwork.
As mother points out, the department recommended placing the minor with her on a
supervised family maintenance regimen. But the juvenile court was within its discretion
to reject that recommendation based on the evidence. Even if there was evidence to
support a return to mother, it is not our role to weigh the evidence. There was substantial



                                             8
evidence to support the juvenile court’s finding that returning the minor immediately
to mother’s custody would cause substantial detriment to him.
                                     DISPOSITION
      The juvenile court orders are affirmed.



                                                      MAURO                 , J.


I concur:


      HULL                 , Acting P. J.




                                            9
       DUARTE, J., Dissenting.
       I respectfully disagree with the majority’s assessment of the record, and conclude
that the juvenile court’s finding of substantial risk of detriment to the minor (C.K.) is
unsupported by the evidence. In so concluding, I emphasize that finding a substantial
risk of detriment does not simply mean that a parent is less than ideal or less capable than
another option, as we arguably see here. (See David B. v. Superior Court (2004) 123
Cal.App.4th 768, 789 (David B.).) Rather, the finding signals some danger to the child’s
physical or emotional well being. (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1400
(Yvonne W.).) We have previously noted that views forecasting detriment will follow a
child’s return to his or her parent “must be tethered to supporting evidence.” (In re E.D.
(2013) 217 Cal.App.4th 960, 966.)
       Simply put, at this stage in the proceedings parents are entitled to parent their child
unless there is evidence of harm to the child from their parenting. I agree with Trinity
County Health and Human Services (Department) and mother that here there was no such
evidence. Accordingly, I dissent.
       The finding of detriment followed an exchange where, after speaking with both
C.K. and his older sister in chambers, the juvenile court purported to “continue the
reunification services for the mother . . . and set a review hearing towards the end of the
summer to see how we’re doing on the extended reunification with respect to [C.K.].” At
that point, as the court attempted to begin its ruling as to C.K.’s sister, the Department
objected that “mother has done what she’s supposed to do in terms of reunification, and
our reading of the law says that . . . pending a finding that it would be a detriment to the
child, that the placement does need to be with the mother.”
       The juvenile court immediately responded: “I’m going to make[] a finding of
detriment. I’m making a finding of detriment based on the reasons that were articulated
by to me by Charles directly, in that he feels that he will not thrive in school if placement
is continued into the school year, and that both of the children are quite committed to
remaining in the Felton area [with their grandmother]. The need of a child for stability is
paramount, and although the mother does have substantial due process rights to raise the


                                              1
children at this point, those rights remain in play and are juxtaposed with the rights of the
children. And therefore, although the reunification plan has been complied with
substantially, I think we need more time in order to determine whether there would be a
continued detriment.” The court added: “[I]f we want to appeal it, we can appeal it.”
       Mother’s counsel objected and pointed out that the Department was willing to
provide a tutor to C.K. at his mother’s residence--a fact supported by the record. The
juvenile court responded, “Well, the concerns that [C.K.] had had very little to do with
the tutoring. It [sic] had much more to do with the stability.” The Department’s counsel
added that C.K.’s school was within walking distance of mother’s house, so there were
no transportation concerns, to which the court replied, “I’m sticking to my order.”
       The juvenile court’s observations about C.K.’s “concerns” are not supported by
the record, including C.K.’s in-chambers testimony.
       C.K. told the social worker that he got “ ‘better grades’ ” and was “ ‘more
focused’ ” in school with the guidance of his grandmother. He added that he thought his
mother could help him in the same way, but that he “ ‘might want to play more.’ ” He
said that if his mother could secure a tutor for him, he “ ‘would stay with her.’ ” In his
conversations with the social worker, C.K. expressed no concerns about any “stability”
issues beyond tutoring.
       Nor did C.K. express any stability concerns in chambers, where the following
conversation took place in relevant part:
       “THE COURT: I think the main thing is that you guys know we want to hear
from you. I don’t want to be making a decision that doesn’t take into account what you
think is best. And I know that you’re both smart enough to know that sometimes what is
best is not always what you want or wish for. You have to, like [C.K.]’s doing, he’s
thinking about doing what’s right for success at school.
       “So why don’t you just tell me how do you feel about that proposal that you stay
where you are in Felton [grandmother’s], finish out the school year, and that in the
summer you go visit -- you live with mom, and then at the end of summer, we see how



                                              2
that went, and at that time we could see whether or not you wanted to stay with mom or
whether you wanted to go back to Felton.
         “So [C.K.] why don’t you go first.
         “C.K.: I would rather that yes, see how it works.
         “THE COURT: You would like to do that?
         “C.K.: (Nods.)
         “THE COURT: And do you have concerns about going to your mom’s?
         “C.K.: No.
         “THE COURT: You would feel safe?
         “C.K.: (Nods.)
         “THE COURT: And you know that you can reach your grandma any time you
need to, and she can come and visit, make that possible?
         “C.K.: Uh-huh.
         “THE COURT: Is there anything else you might be concerned about over the
summer [at mother’s]?
         “C.K.: No.
         “THE COURT: Have you been to Lewiston [i.e., mother’s residence] before?
         “C.K.: Lewiston, yes, once.
         “THE COURT: You’ve seen her [mother’s] house there?
         “C.K.: (Nods.)
         “THE COURT: So you know what you’re in for?
         “C.K.: Uh-huh.”
         The court then discussed C.K.’s sister’s desires with her; she clearly wanted to
remain with her grandmother regardless of where C.K. went. The court then asked C.K.
how he would feel if he were with his mother, and his sister was “away for the whole
summer and maybe just visiting for a couple of weeks” to which C.K. responded, “That’s
fine.”




                                               3
       As is evident from the transcript, C.K. simply agreed with the court’s proposal to
maintain the status quo, while making clear that he felt safe with mother and was fine
staying at her house, even without his older sister. Thus the juvenile court did not
correctly state C.K.’s “concerns” as the record reflects them.
       Even assuming for the sake of argument that C.K.’s concern about stability was
couched correctly by the trial court--which I do not believe is the case based on the
context of the exchange--it does not show a substantial risk of detriment.
       As the majority correctly points out, the order at issue was made at the 12-month
review hearing. As the majority also correctly describes, at this hearing the court must
return the child to the custody of the parent unless it determines that return would create
a substantial risk of detriment to the child’s physical or emotional well-being. (Welf. &
Inst. Code, § 366.21, subd. (f).) As I emphasized ante, substantial risk of detriment does
not simply mean that mother is less than ideal or is less capable than the grandmother.
“When we are considering whether to deprive a parent of custody, we are concerned only
about his or her grasp of the important parenting concepts—things such as a child’s need
for security, adequate nutrition and shelter, freedom from violence, proper sanitation,
healthcare, and education.” (David B., supra, 123 Cal.App.4th at p. 790.)
       On this record, the only possible detriment in one of these important parenting
concepts is education. And the record is clear that the tutor C.K. wanted (and assuming
for the sake of argument needed) was available at mother’s house. To be sure, C.K. had
just secured an individualized education plan (IEP) at the Felton school, but there is
nothing in the record to suggest that an IEP could not be secured for him at the school
within walking distance of his mother’s residence. The IEP was not even discussed as a
possible reason for detriment to C.K. should he be returned to mother, and the tutor issue
was resolved.
       In a single paragraph, and without citation to authority, the majority concludes that
substantial evidence supports the detriment finding because C.K. “was in school in
Felton, was receiving . . . tutoring, and was also receiving therapy. He also had an IEP in
place. [He] said he gets better grades and is more focused in school with the guidance of


                                             4
his grandmother. Meanwhile, housing and income have been a ‘primary struggle’ for
mother.” (Maj. opn. at p. 8.) I disagree that this constitutes substantial evidence of the
required substantial risk of detriment to C.K.’s physical or emotional well-being required
to keep him away from his mother at this stage in the proceedings.
       First, there is no evidence that mother’s housing and income issues were thought
to be potential causes of physical or emotional detriment to C.K. This evidence of her
struggle was not reason to decline to return C.K. to her, absent evidence that being with
her would cause him harm. “A child’s dislike of a parent’s living arrangement, without
more, does not constitute a substantial risk of detriment.” (Yvonne W., supra, 165
Cal.App.4th at p. 1401 [where mother living in shelter and child expressed “fear, anxiety,
and unhappiness” about living there, insufficient showing of detriment]; see also
David B., supra, 123 Cal.App.4th at p. 789, 792 [court could not properly consider that
parent was too poor to afford housing to support its detriment finding]; In re G.S.R.
(2008) 159 Cal.App.4th 1202, 1213 [agency cannot “bootstrap” the fact that parent was
too poor to afford housing to support a detriment finding].) The juvenile court
appropriately did not appear to consider this issue toward its finding of detriment, and
this court should not rely on it as part of the required substantial evidence analysis.
       This brings the analysis back to education, because that is all that remains on
which to possibly base C.K.’s continued removal from his mother. The only education
concern supported by this record involves C.K.’s IEP, but there is nothing in the record to
indicate a delay in its implementation might result in substantial detriment. Although the
majority cites as its primary basis for continued removal “evidence of the minor’s
concern that he would not do as well in school if returned to mother’s home” (see maj.
opn. at p. 8), this concern was addressed prior to the hearing. C.K.’s concern about
doing well at school if returned to his mother’s home was expressed by him in tandem
with his comment that his concern would be alleviated if he had a tutor at his mother’s
residence. The record is clear that the Department was willing to pay for that tutor, and
brought its willingness to do so to the attention of the juvenile court. The majority’s
reliance on this concern is misplaced, as the concern was alleviated.


                                              5
       Further, the IEP never surfaced as a reason to keep C.K. away from his mother;
there was no evidence that the just-obtained IEP could not be re-obtained at another
school. The record is clear that C.K. was already improving in school without benefit of
the IEP. In any event, delay in securing an IEP, without more evidence, is not detriment
as defined by the relevant statute. (See Yvonne W., supra, 165 Cal.App.4th at p. 1403
[mother’s lack of a supervision plan, her lack of organizational skills, and the child’s
incomplete IEP assessment did not constitute substantial risk of detriment].)
       The majority offers that it does “not read the juvenile court’s comments” to be
based “on detriment to the minor’s ‘emotional well-being’ ” as suggested by mother in
her briefing (see maj. opn. at p. 8), but if not that, what? Certainly not his physical well-
being, which was not at issue at the 12-month review. Then where is the substantial risk?
As I have explained, removal requires “a substantial risk of detriment to the safety,
protection, or physical or emotional well-being of the child.” (Welf. & Inst. Code,
§ 366.21, subd. (f).) The detriment finding here is not “tethered to supporting evidence.”
(In re E.D., supra, 217 Cal.App.4th at p. 966; id. at pp. 964-967 [where Department
supported child’s return to father and grandmother and court appointed special advocate
opposed return and testified to risk of emotional detriment from transition from
grandmother to father, court’s finding of detriment not supported by substantial
evidence].)
       I would reverse the juvenile court’s order for lack of substantial evidence.




              DUARTE         , J.




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