Filed 11/24/15 In re E.M. CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE

In re E.M., A Person Coming Under the                                    B261051
Juvenile Court Law.
                                                                         (Los Angeles County
                                                                         Super. Ct. No. CK96120)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
         Plaintiff and Respondent,
         v.
T.F.,
         Defendant and Respondent;
POLLY D.,
        Objector and Appellant.


         APPEAL from orders of the Superior Court of Los Angeles County,
Timothy R. Saito, Judge. Affirmed.
         Deborah Dentler for Objector and Appellant.
         Margaret Coyne and Janet G. Sherwood for Advokids as Amicus Curiae on behalf
of Objector and Appellant.
         Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant
and Respondent.
         No Appearance for Plaintiff and Respondent.
         Suzanne M. Davidson, under appointment by the Court of Appeal, for Minor.
                                   INTRODUCTION
       This is a troubling case. E.M. was removed from her parents, who were long term
drug users, by the Department of Children and Family Services (DCFS) in October 2012,
when she was barely a year old. As a result of repeated delays and continuances, as well
as an erroneous grant of family reunification services to T.F. (mother) fourteen months
after E.M. was removed from her care, E.M. remained in the foster care system for more
than two years. During this time, E.M. was placed with, and bonded to, two different
parental figures, including de facto parent Polly D., with whom she lived for over a year.
Ultimately, after mother enrolled in an inpatient drug rehabilitation program and
remained drug-free for five months, E.M. was removed from Polly and returned to
mother just before her third birthday. Polly appeals from E.M.’s return to mother and
from the termination of her de facto parent status.
       We applaud mother’s apparently successful efforts to conquer her drug addiction
and control her bipolar disorder, but we are disturbed that a very young child was denied
permanency during the lengthy period that preceded such efforts. E.M. was well under
three years old when these dependency proceedings commenced, and she had the right to
permanency within the statutorily prescribed time period—generally, within six months
for a child under three years. Instead, E.M. remained in limbo in the foster care system
for more than two years before being returned to a mother she barely knew.
       Nonetheless, as we discuss in the body of this opinion, although we agree with
Polly that significant errors were made in this case, we conclude that those errors are not
remediable by this appeal. Polly urges that the juvenile court abused its discretion in two
separate ways—by granting mother six months of reunification services in
December 2013, and by ordering E.M. returned to mother in October 2014. As to the
first issue, although we agree with Polly that the December 2013 order of reunification
services was erroneous, that order was not timely appealed and is not subject to reversal
in this appeal from subsequent orders. As to the second issue, substantial evidence
supported the juvenile court’s findings, and thus the order returning E.M. to mother was



                                             2
not an abuse of the court’s broad discretion. Accordingly, notwithstanding clear errors in
this case, we affirm.
                    FACTUAL AND PROCEDURAL BACKGROUND
          Mother and Robert M. (father) are the parents of E.M., born October 2011.
Appellant Polly D. was E.M.’s foster mother from September 2013 to October 2014, and
had de facto parent status from February 2014 to December 2014.
                                              I.
                                   Detention and Petition
          The family came to the attention of DCFS following mother’s arrest in
August 2012, when E.M. was ten months old. Mother admitted she had been diagnosed
with bipolar disorder and had a substance abuse problem. She arranged for E.M. to be
cared for by her estranged husband, Jose F., who had primary custody of E.M.’s half-
sister.
          In September 2012, mother and father agreed to voluntary family reunification
services, including drug testing and rehabilitation. Subsequently, however, father tested
positive for methamphetamines and cannabinoids and failed to maintain contact with
DCFS. Mother had two unexcused “no show” drug tests, tested positive for
methamphetamines on October 17, 2012, and admitted that she used methamphetamines
every weekend. DCFS thus recommended that E.M. be placed with Jose under court
supervision.
          DCFS filed a juvenile dependency petition on behalf of E.M. on October 25, 2012.
It alleged: (b-1) mother had a history of substance abuse and was a current user of
amphetamines and methamphetamines; (b-2) father had a history of substance abuse and
was a current user of amphetamines, methamphetamines, and marijuana; (b-3) mother
possessed illegal drug pipes in the child’s home and was arrested for possessing drug
paraphernalia on August 21, 2012; and (b-4) mother had a history of mental and




                                              3
emotional problems, including a diagnosis of bipolar disorder, and had failed to regularly
take her psychotropic medication.1
       On October 25, 2012, the juvenile court found a prima facie case for detaining
E.M. Mother was granted monitored visitation three times per week.
                                            II.
                                       Adjudication
       The jurisdiction/disposition report, dated December 12, 2012, said mother’s family
reported that mother began using street drugs as a teenager, and had abused prescription
drugs as an adult. Mother had completed an outpatient substance abuse program two
years earlier through the criminal court, but had subsequently admitted to returning to
methamphetamine use. Mother had been diagnosed with bipolar disorder four or five
years earlier and had inconsistently taken psychotropic medication to control the
symptoms.
       DCFS was unable to locate mother or father. A children’s social worker (CSW)
attempted to speak with mother and father at their last known addresses, but they were no
longer living at either location. A due diligence search for mother was unsuccessful, and
neither mother nor father appeared at the December 14, 2012 hearing. The case was set
for adjudication on January 4, 2013.
       In a “Last Minute Information for the Court,” DCFS recommended that the
petition be sustained, no family reunification services be offered to mother or father




1
       An additional allegation, that mother and father allowed substance abusers to
frequent their home and have unlimited access to E.M., was not sustained by the juvenile
court.


                                             4
because their whereabouts were unknown (Welf. & Inst. Code, § 361.5, subd. (b)(1))2,
and a hearing be set pursuant to section 366.26.
       On January 4, 2013, the juvenile court sustained paragraphs b-1, b-2, b-3, and b-4
of the petition. It continued the disposition hearing for one month to allow DCFS to
perfect service on father.
                                             III.
                                        Disposition
       In a Last Minute Information for the Court, DCFS advised that it had completed a
due diligence search for father and provided notice to him. It again recommended no
family reunification services for mother or father.
       The court found that notice of the proceedings had not been properly served on
father, and it continued the disposition hearing from February to March. The court
subsequently continued the matter to April, apparently because it concluded that DCFS
still had not properly served notice on father.
       At the disposition hearing held April 12, 2013, the juvenile court found pursuant
to section 361, subdivision (b) that substantial danger existed to E.M.’s physical health,
there were no reasonable means to protect her without removing her from parents’
custody, and DCFS had made reasonable efforts to enable E.M. to return home. The
court ordered that no family reunification services be provided to mother or father
pursuant to section 361.5, subdivision (b)(1), and it set a section 366.26 hearing for
August 9, 2013.




2
       Section 361.5, subdivision (b)(1) provides: “(b) Reunification services need not
be provided to a parent or guardian described in this subdivision when the court finds, by
clear and convincing evidence, any of the following: [¶] (1) That the whereabouts of the
parent or guardian is unknown.”

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


                                              5
                                             IV.
                                The Section 366.26 Report
       DCFS initiated a due diligence search for mother in May 2013 by mailing notices
to her at six different addresses. The notice mailed to an address in Garden Grove was
marked “delivered,” and on July 17, 2013, mother contacted the CSW to say she had
received it. Mother said she was homeless, but a friend allowed her to receive mail at the
Garden Grove address. Mother provided the CSW with a temporary phone number and
email address, and she acknowledged by email the August 9, 2013 date of the section
366.26 hearing.
       DCFS filed a section 366.26 report dated August 9, 2013. It said mother had
called E.M. periodically in May and had visited her three times in July and August.
E.M. reportedly had adjusted well to her placement with Jose and demonstrated a strong
attachment to him and his daughter. Jose was interested in adopting E.M., but he was
experiencing medical issues and he thus asked that the adoption process be halted.
       On August 9, 2013, mother did not appear at the section 366.26 hearing. The
court found that notice to the parents was not proper and continued the section 366.26
hearing to December.
                                              V.
                             E.M.’s Placement with Polly D.
       In August 2013, Jose became ill and could no longer care for E.M. He declined
visitation, saying it would be too hard for him and his daughter.
       E.M. was placed with Polly in September 2013. Polly expressed interest in
adopting E.M., and E.M. was reported to be thriving in Polly’s home: “The child
[E.M.]’s development has considerably improved in [Polly’s] home. [E.M.] previously
exhibited hyperactive behaviors such as consistent climbing on furniture, running
throughout the home yelling and screaming. Currently her behaviors have decreased due
to the caregiver’s ability to redirect the child. The caregiver reports that [E.M.]’s diet
also has improved and her weight has decreased closer to her developmental age.” DCFS
recommended that E.M. be released for adoption.


                                              6
       On September 16, 2013, DCFS advised the court that the CSW met with mother
on August 30, 2013 at mother’s temporary residence. Mother said “she was packing all
of her belongings as she had to move and had no where to go. . . . On July 17 the [CSW]
had emailed several drug rehabilitation programs in the Orange County area. When
asked if she had called any of the programs, the mother stated she had not called all the
programs on the list . . . . The mother stated she would like Family Reunification
Services reinstated as she would like another opportunity to reunify with [E.M.]. [¶] The
mother was noticed for the next [366].26 hearing set on 12/06/13. The mother was asked
why she failed to appear at the prior [366].26 hearing that was set on 08/09/13. The
mother stated she did not appear because she was afraid that she would be arrested as she
has an outstanding warrant. The mother was encouraged to address any current legal
issues as this will pose a problem should the court grant her family reunification[] again.
The mother was also encouraged to attend the next [366].26 hearing set on 12/06/13. . . .
The [CSW] had provided additional referrals for substance abuse programs in the
San Gabriel Valley in the event she returned back to the area.”
       The court held a six month review hearing on October 11, 2013, at which mother
did not appear. The juvenile court found that returning E.M. to her parents would create
a substantial risk of detriment to her physical or emotional well-being, DCFS had
complied with the case plan, a permanent plan of adoption was appropriate, and the likely
date by which DCFS would finalize the permanent plan was April 11, 2014. A section
366.26 hearing was set for December 6, 2013.
       Polly filed a Request for Prospective Adoptive Parent Designation on October 11,
2013, and filed a De Facto Parent Request on November 19, 2013.
                                            VI.
           Mother’s Appearance at the December 6, 2013 Hearing and the
             Juvenile Court’s Grant of Reunification Services to Mother
       At the December 6, 2013 hearing, DCFS advised the court that mother had been
located and had requested reunification services. DCFS therefore asked that the
section 366.26 hearing be taken off calendar and the case set for a review hearing on


                                             7
April 25, 2014. Mother’s counsel requested that the hearing be set in June, to allow
mother to receive a full six months of family reunification services.
       The court ordered mother to participate in a drug rehabilitation program with
on-demand testing, attend a parenting class, participate in mental health counseling,
submit to a psychological assessment, take all prescribed psychotropic medication, and
attend individual counseling to address case issues. Mother was granted monitored
visitation with E.M. three times per week. A further hearing was set for June 6, 2014.
       On February 27, 2014, the juvenile court granted Polly’s request for de facto
parent status.
                                           VII.
                                June 2014 Status Hearing
       The June 6, 2014 status review report said mother had given birth prematurely to
her third child on April 20, 2014. The baby tested negative for drugs at birth, but a
meconium test was positive for amphetamines/methamphetamines and marijuana. 3
Mother admitted using methamphetamines and said she had not taken prescribed
psychotropic medication since 2012.
       Mother entered Heritage House, an in-patient drug rehabilitation center for
mothers and their children, on May 7, 2014, and was reported to be doing well. In May,
mother and E.M. had four monitored visits at DCFS’s office. The DCFS monitor
reported that mother was appropriate with E.M. and that all four visits went very well.
Polly reported, however, that E.M. had become very clingy and was expressing fear that
Polly would leave her or that she would be taken away.


3
        Meconium analysis “is currently considered the best method for detecting drug
exposure in pregnancy. It provides a wider window of detection of gestational exposure,
presumably as remote as the second trimester, when drugs begin to accumulate in
meconium (by direct deposition from the biliary tree or when the fetus ingests amniotic
fluid). [¶] Meconium analysis is reliable for detecting opioid and cocaine exposure after
the first trimester and can be used to detect a range of other illicit and prescribed
medications.” (<http://emedicine.medscape.com/article/978763-workup> [as of Nov. 20,
2015].)


                                             8
        DCFS assessed that the risk of abuse and neglect was high if E.M. were returned
to mother. It noted that mother had no contact with E.M. until recently and had
continued to use illegal substances. DCFS therefore recommended that mother’s
reunification services be terminated.
        At the June 6, 2014 hearing, mother’s counsel opposed termination of mother’s
services and requested a contested hearing. The court set a hearing for September 9,
2014.
                                            VIII.
                                 September 2014 Hearing
        The court held a contested status review hearing on September 9, 12, and 15,
2014. The court heard testimony from mother’s therapist and substance abuse counselor
that mother was doing extraordinarily well at Heritage House. Mother had been taking
psychotropic medication for about a month and was regularly attending AA or NA
meetings. Her drug tests were consistently negative. She was developing good coping
and parenting skills.
        Mother testified that she was committed to staying sober and regaining custody of
her children. She acknowledged that she had been diagnosed with bipolar disorder and
said she had been taking lithium and seroquel for about one month. She said she
understood it was important for her to maintain her mental health treatment because she
otherwise was at risk of self-medicating. She believed E.M. was ready to be returned to
her because “I believe that over the last five months, the intense work that I’ve done and
all the things that I have learned have . . . just changed the core of who I am. [¶] Where
I’m at right now is designed for reunification. I’ve seen . . . plenty of other girls with
their kids. And the counselor is there, the therapist is there, and the program aides.
They’re all trained to help with that transition. [¶] Because no matter how you do it, it’s
going to be hard. It’s going to be hard on the child. And they’re there to help support
you and to guide you and also your child. Not just me but [E.M.].” Mother said she
believed the court should return E.M. to her “[b]ecause now I can provide her with a very



                                              9
safe, stable, healthy, nurturing home. Home and mother. I’m also safe and healthy and
stable and nurturing for her.”
       E.M.’s therapist testified that E.M. was experiencing a lot of anxiety. She was
having trouble sleeping and separating from Polly. She was “constantly looking for
[Polly] and calling for her,” and had begun urinating in her pants. She said things to
Polly like, “Are you going to keep me? Am I going anywhere?”
       The CSW testified that mother was in partial compliance with her case plan
because she had been drug testing only since April and receiving mental health services
only since August. She said the visits between mother and E.M. were positive, but she
believed there would be a substantial risk of harm if E.M. were returned to mother
because “[mother’s] just recently, within the last five months, . . . gotten clean. . . . She’s
in her infancy stages of recovery. That is a big deal, especially when you just had a child
a couple months ago with a positive toxicology.” The CSW noted that mother had not
acted as a parent for some time, and that parenting an active child like E.M. could trigger
a relapse. The CSW said she would like to see mother maintain her sobriety for at least a
year before E.M. was returned to her, and she recommended that visits between mother
and E.M. remain monitored “to ensure that [E.M.] is adjusting well when she’s with her
mother.”
       At the conclusion of testimony, counsel for DCFS urged that mother’s
reunification services be terminated and a section 366.26 hearing be set. While DCFS’s
counsel acknowledged that mother had made significant progress in treating her mental
health and substance abuse issues, he noted that she had been clean for only five months
and had been taking medication for her bipolar disorder for only one month. As a result,
“there is simply not enough time under her belt for us to have any confidence that
[mother] will maintain her sobriety, [that] she will maintain her mental health. And for
all of those reasons, it is simply premature to consider release of [E.M.].”
       Mother’s counsel urged that E.M. should be immediately returned to mother.
Counsel for E.M. and for father joined in mother’s counsel’s argument.



                                              10
       The court acknowledged that this was a very difficult case. It noted that mother
had a long history of drug addiction, that mother was now in substantial compliance with
her case plan, and that Polly had done a very good job of meeting E.M.’s needs. The
issue, therefore, was whether mother’s compliance was of sufficient duration to give the
court confidence that she was not likely to relapse. As to that issue, the court made the
following observations:
       “[Mother’s] indicated, at least to the court that from what I heard, she has shown
insight with regards to her issues. . . . The one statement that struck the court very
seriously was the fact that she indicated that the reason why she wants to stay [in] her
mental health treatment program was because if she doesn’t do that, she begins to self-
medicate. And when she starts to medicate, that leads to drug usage. [¶] To the court, it
appears that mother has recognized the issues that are important for her to address in this
case as well as the fact that she does have [a] support system behind her to try to address
the issues. She’s been appropriate during visits. . . .
       “But given the fact that even the social worker in this case has indicated that
there’s interaction and bonding with the mother and the child recently and that the
visitations have been going well, therapist also indicating that some of the stress with
regards to the relationship could be alleviated if they were at the Heritage House, and the
fact that there are several individuals and therapists and various players at the Heritage
House that would be able to further assist mother in caring for the child, [the] court at this
point can’t find a substantial risk of detriment to not return at this time.”
       The court therefore found that return of E.M. to mother would not create a
substantial risk of detriment, and it ordered her returned home to mother on the condition
that mother continue to reside at Heritage House and participate in a transition plan. The
court stayed immediate return of E.M. until it received further information about a
transition plan, but ordered that E.M. was to have unmonitored overnight visits with
mother.




                                              11
                                             IX.
                E.M.’s Return to Mother; Polly’s Section 388 Petition;
                     Termination of Polly’s De Facto Parent Status
       On October 17, 2014, mother was accepted into the Heritage House Cottages
program. E.M. was released to mother the same day. DCFS requested that the case be
transferred to Orange County Social Services, through which mother and her infant son
were receiving services.
       On October 23, 2014, Polly filed a section 388 petition requesting that E.M.’s
return to mother be stayed or that she be permitted visits and phone calls with Polly.
Mother filed her own section 388 petition, requesting that Polly’s de facto parent status
be terminated. The court ordered a hearing on both petitions. On the same day, the court
formally lifted the stay on E.M.’s return to mother.
       On December 4, the court granted mother’s section 388 petition, terminated
Polly’s de facto parent status, ruled that Polly’s section 388 petition was therefore moot,
and ordered the case transferred to Orange County juvenile court.
       On November 5, 2014, Polly appealed from the findings and orders made at the
September 15 and October 23, 2014 hearings. On December 8, 2014, Polly filed a
further appeal from the orders of October 23 and December 4, 2014.4
                                     CONTENTIONS
       Polly contends that that the juvenile court erred in granting mother six months of
reunification services in December 2013 and continuing the case to an 18-month review
hearing. Polly further contends that substantial evidence did not support the juvenile
court’s conclusion that mother had made significant and consistent progress towards
completing her reunification plan, and therefore that the trial court erred in releasing
E.M. to mother in October 2014.



4
      The December 8 notice of appeal also purported to appeal from an October 29,
2014 “letter from presiding judge of juvenile court re: request for disclosure under
WIC section 827.” That letter is not part of our appellate record.

                                             12
       DCFS declined to file a brief in this case, and thus the only respondents to
participate in this appeal are mother and E.M. They contend that because Polly did not
appeal from the December 6, 2013 order granting reunification services and setting an
18-month hearing, she is precluded from raising the issue in this appeal; on the merits,
they urge that the juvenile court properly ordered reunification services for mother once
her whereabouts became known. They further contend that substantial evidence
supported the juvenile court’s findings that mother substantially complied with the case
plan and that it was not detrimental to return E.M. to mother’s care.
       Amicus curiae Advokids5 contends that the juvenile court lacked authority to
extend reunification services beyond December 2013, which was 12 months from the
date E.M. entered foster care. Advokids urges that by extending mother’s reunification
services and ultimately returning E.M. to mother, the court “violated a comprehensive
statutory scheme and . . . public policy, which requires the court to make the welfare and
protection of the child its paramount concern.”
                                      DISCUSSION
                                             I.
           The Juvenile Court Abused Its Discretion by Granting Mother
           Reunification Services in December 2013, but the Error Cannot
                 Be Rectified in This Appeal from Subsequent Orders
       Polly contends that the juvenile court abused its discretion when, in
December 2013, it granted mother reunification services and set an 18-month review
hearing. Mother and E.M. disagree on the merits; they also contend that Polly’s
challenges to the December 2013 orders are untimely.
       As we now discuss, the juvenile court abused its discretion by granting mother
six months of family reunification services and setting an 18-month review hearing in

5
      Advokids describes itself as an “Internal Revenue Code section 501(c)(3)
nonprofit organization that advocates for the right of every child in the California
dependency system to safety, security, stability, and timely permanency as required by
law.” The court accepted Advokids’s amicus curiae brief for filing on July 1, 2015.


                                            13
December 2013, more than a year after E.M. was removed from mother’s custody.
However, because an appeal from that order was not timely filed, it is not now subject to
reversal.6
       A.     The Order Granting Mother Reunification Services Was an Abuse of
              Discretion
       Family reunification services generally are offered to a parent whose child is
declared a juvenile court dependent. In the case of a child who is less than three years
old at detention, reunification services typically are offered “for a period of six months
from the dispositional hearing as provided in subdivision (e) of Section 366.21, but no
longer than 12 months from the date the child entered foster care.” (§ 361.5,
subd. (a)(1)(B), italics added; see also Cal. Rules of Court, rule 5.695(h)(1).)
       An exception to the general preference for offering parents reunification services
is provided in section 361.5, subdivision (b)(1), which says that reunification services
need not be provided to a parent “when the court finds, by clear and convincing
evidence . . . [¶] [t]hat the whereabouts of the parent or guardian is unknown. . . .” Here,
mother’s whereabouts were unknown as of the April 12, 2013 disposition hearing, and
thus the juvenile court properly declined to offer mother reunification services.
       Mother contends that although the juvenile court was not required to offer her
reunification services in April 2013, it was required to offer her such services in
December 2013 because “DCFS’s contact with [mother] during the six-month period
after the disposition triggered [mother’s] right to family reunification services under
section 361.5, subdivision (d), as well as DCFS’s obligation to seek a modification of
the prior order denying reunification services.” We do not agree. Section 361.5,
subdivision (d), provides that if reunification services are not ordered pursuant to
subdivision (b)(1) and the whereabouts of a parent “become known within six months of


6
        Although we ultimately conclude there was no timely appeal of this issue, because
of the importance of the statutorily prescribed time periods to the well-being of young
children, we address on the merits the issue of the grant of family reunification services
to mother.

                                             14
the out-of-home placement of the child,” the court “shall order the social worker to
provide family reunification services.” (Italics added.) Here, E.M. was placed out
of mother’s home on October 25, 2012, and thus mother was entitled to services
under section 361.5, subdivision (d) only if her whereabouts became known within
six months—i.e., on or before April 25, 2013. (See In re Jonathan P. (2014)
226 Cal.App.4th 1240, 1258, fn. 13 [“The ‘six month’ period in section 361.5,
subdivision (d) commences when the minor is removed from the custodial parent and
placed out of the custodial home.”].) By mother’s own admission, she did not have any
contact with DCFS until July 2013, a full eight months after E.M. was placed out of her
home. Accordingly, she was not entitled to services under section 361.5, subdivision (d).
       Although the court was not required under section 361.5, subdivision (d) to offer
mother services in December 2013, it had discretion to do so under section 361.5,
subdivision (a)(1)(B), which provides: “For a child who, on the date of initial removal
from the physical custody of his or her parent or guardian, was under three years of age,
court-ordered services shall be provided for a period of six months from the dispositional
hearing as provided in subdivision (e) of Section 366.21, but no longer than 12 months
from the date the child entered foster care as provided in Section 361.49 unless the child
is returned to the home of the parent or guardian.” Under this section, the court thus had
discretion to offer mother services, but only until “12 months from the date [E.M.]
entered foster care as provided in Section 361.49.” (§ 361.5, subd. (a)(1)(B).) Pursuant
to section 361.49, E.M. was “deemed to have entered foster care” on December 24,
2012,7 and thus reunification services should not have been provided beyond



7
       Pursuant to section 361.49, a child “shall be deemed to have entered foster care on
the earlier of the date of the jurisdictional hearing . . . or the date that is 60 days after the
date on which the child was initially removed from the physical custody of his or her
parent or guardian.” Here, E.M. was initially removed from mother on October 25, 2012
and the jurisdiction hearing was held on January 4, 2013. Thus, E.M. is “deemed to have
entered foster care” sixty days after her removal from mother’s custody—i.e., on
December 24, 2012.


                                               15
December 24, 2013—approximately three weeks after the hearing at which they were
ordered.
       Section 366.21, subdivision (g) gives juvenile courts discretion to provide services
to parents after 12 months, but only under limited circumstances not present here. That
section provides that at the permanency hearing held no later than 12 months after the
date the child entered foster care, if the child is not returned to the parent, the court may
continue the case for up to six months, provided that the continued hearing shall occur
“within 18 months of the date the child was originally taken from the physical custody of
his or her parent or legal guardian.” (§ 366.21, subd. (g)(1).) However, the court shall
continue the case “only if it finds that there is a substantial probability that the child will
be returned to the physical custody of his or her parent or legal guardian and safely
maintained in the home within the extended period of time or that reasonable services
have not been provided to the parent or legal guardian.” (Ibid., italics added.) For the
purposes of this section, in order to find a substantial probability that the child will be
returned to the physical custody of his or her parent or legal guardian and safely
maintained in the home within the extended period of time, the court is required to find
(1) “[t]hat the parent or legal guardian has consistently and regularly contacted and
visited with the child,” (2) “[t]hat the parent or legal guardian has made significant
progress in resolving problems that led to the child’s removal from the home,” and “[t]he
parent or legal guardian has demonstrated the capacity and ability both to complete the
objectives of his or her treatment plan and to provide for the child’s safety, protection,
physical and emotional well-being, and special needs.” (§ 366.21, subd. (g)(1)(A)-(C).)
       In the present case, had a review hearing been held on or before December 24,
2013 for the purpose of determining whether extended services should be provided under
section 366.21, subdivision (g), the juvenile court could not reasonably have found that
any of the section 366.21, subdivision (g)(1) factors had been met: Mother had not
consistently and regularly contacted and visited E.M., made significant progress in
resolving her substance abuse and psychiatric problems, or demonstrated the capacity and
ability to complete the objectives of her treatment plan and to provide for E.M.


                                               16
Therefore, the juvenile court abused its discretion in offering services to mother beyond
December 24, 2013.
       B.     The Error Is Not Reversible in This Appeal from Subsequent Orders
       Although the order granting reunification services was erroneous, the error cannot
be rectified in this appeal from subsequent orders. Section 395 provides in relevant part:
“A judgment in a proceeding under Section 300 may be appealed in the same manner as
any final judgment, and any subsequent order may be appealed as an order after
judgment. . . .” “ ‘ A consequence of section 395 is that an unappealed disposition or
postdisposition order is final and binding and may not be attacked on an appeal from a
later appealable order.’ (In re Jesse W. (2001) 93 Cal.App.4th 349, 355.) An appeal
from the most recent order in a dependency matter may not challenge earlier orders for
which the time for filing an appeal has passed. (Ibid.) ‘Permitting a parent to raise issues
going to the validity of a final earlier appealable order would directly undermine
dominant concerns of finality and reasonable expedition,’ including ‘the predominant
interest of the child and state. . . .’ (In re Janee J. (1999) 74 Cal.App.4th 198, 207.)
Accordingly, ‘By failing to appeal, [a party waives] any complaint she may have
regarding the [reunification] plan as ordered.’ (In re Julie M. (1999) 69 Cal.App.4th 41,
47.)” (Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1018.)
       Here, the juvenile court granted mother reunification services on December 6,
2013. On the same date, it set an 18-month review hearing for June 6, 2014. The
December 6, 2013 order granting mother reunification services and setting a review
hearing was appealable under section 395, but no appeal was taken.
       The present appeal, filed November 5 and December 8, 2014, challenged findings
and orders made at the hearings on September 15, October 23, October 29, and
December 4, 2014. Significantly for our purposes, neither notice of appeal purported to
challenge the findings and orders of December 6, 2013; even if they had specified the
December 6, 2013 order, because they were filed well after the expiration of the time to
appeal from the December 6, 2013 order, they would have been untimely. We therefore
lack jurisdiction to review the December 6, 2013 order.


                                             17
                                              II.
            The Juvenile Court Did Not Abuse Its Discretion by Ordering
                        E.M. Released to Mother in October 2014
       Polly contends that substantial evidence did not support the juvenile court’s
findings at the September 2014 hearing that mother had made significant and consistent
progress towards completing her reunification plan, and therefore it erred in releasing
E.M. to mother. Polly urges that mother lacked a stable source of income and housing,
had not demonstrated any ability to care for her three children, had been clean and sober
for only five months, and had begun taking psychotropic medication to control her
bipolar disorder only about a month before the September hearing. In light of mother’s
very recent progress towards recovery, Polly urges that mother could not properly have
been said to have made “significant and consistent progress.”
       Section 366.22, subdivision (a) describes the standard for returning a child to a
parent at an 18-month review hearing. That section provides that after considering the
admissible and relevant evidence, “the court shall order the return of the child to the
physical custody of his or her parent or legal guardian unless the court finds, by a
preponderance of the evidence, that the return of the child to his or her parent or legal
guardian would create a substantial risk of detriment to the safety, protection, or physical
or emotional well-being of the child. The social worker shall have the burden of
establishing that detriment.”
       We review the juvenile court’s determination that E.M. could safely be returned to
mother for abuse of discretion, looking to whether the juvenile court exceeded the bounds
of reason. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) We will not disturb the
juvenile court’s ruling unless it is arbitrary, capricious, or patently absurd. (Id. at p. 318.)
We review the factual findings on which the juvenile court’s orders rest for substantial
evidence. (In re C.B. (2010) 190 Cal.App.4th 102, 123.) “In applying the substantial
evidence test, ‘[w]e do not evaluate the credibility of witnesses, reweigh the evidence, or
resolve evidentiary conflicts.’ [Citation.] ‘Rather, we draw all reasonable inferences in
support of the findings, consider the record most favorably to the juvenile court’s order,


                                              18
and affirm the order if supported by substantial evidence even if other evidence supports
a contrary conclusion. [Citation.]’ ” (Id. at p. 127.)
       Although the evidence here would have supported a finding that returning E.M. to
mother would create a substantial risk of detriment to E.M.’s physical or emotional
well-being, it also supported a contrary finding. The evidence before the court at the
September 2014 hearing was that mother had been sober since May and had been taking
prescribed psychotropic medication to control her bipolar disorder. She was regularly
attending 12-step meetings and was developing good parenting and coping skills. Her
therapist and drug counselor believed she was committed to remaining sober and was
developing the skills necessary to do so. Further, mother was living at a drug
rehabilitation facility designed to help mothers regain custody of their children. The
facility would provide mother with parenting support and child care, and it would help
her find employment and more permanent housing. Finally, mother and E.M. had been
visiting regularly and were developing a close bond.
       The evidence before the juvenile court provides sufficient support for its finding
that placement with mother would not be detrimental. (See In re Liam L. (2015)
240 Cal.App.4th 1068, 1087-1088.) Polly invites us to reweigh the evidence of
detriment, but such reweighing is inconsistent with our standard of review. (See In re
Stephanie M., supra, 7 Cal.4th at pp. 318-319 [“ ‘ “When two or more inferences can
reasonably be deduced from the facts, the reviewing court has no authority to substitute
its decision for that of the trial court.” ’ ”].) Accordingly, we conclude the juvenile court
did not exceed the bounds of reason in concluding that returning E.M. to mother’s
custody would not create a substantial risk of detriment.




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                                  DISPOSITION
      The orders of September 15, October 23, October 29, and December 4, 2014 are
affirmed.


      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                             EDMON, P. J.


We concur:




                   ALDRICH, J.




                   LAVIN, J.




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