Filed 6/25/15 In re Andrew C. CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


In re Andrew C., a Person Coming Under
The Juvenile Court Law.

BARBARA C.,
         Petitioner,
v.
THE SUPERIOR COURT OF CONTRA
COSTA COUNTY,                                                         A144926

         Respondent;                                                  (Contra Costa County
CONTRA COSTA COUNTY CHILDREN                                          Super. Ct. No. J13-00526)
AND FAMILY SERVICES BUREAU,
         Real Party in Interest.


         Petitioner Barbara C. (Mother), mother of 10-year-old Andrew C.,1 seeks review
by extraordinary writ, pursuant to California Rules of Court, rule 8.452, of the juvenile
court’s findings and orders, in which the court terminated reunification services and set
the matter for a permanency planning hearing, pursuant to Welfare and Institutions Code
section 366.26.2 Mother contends (1) there is insufficient evidence to support the
juvenile court’s finding that return of Andrew to her custody would create a substantial

         1
         Mother is Andrew’s maternal grandmother. She adopted him in 2008 after his
parents, who had substance abuse issues, were unable to complete their case plan.
         2
        All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.


                                                             1
risk of detriment to Andrew’s physical or emotional well-being, and (2) counsel for the
Contra Costa County Children and Family Services Bureau (Bureau) committed
misconduct. We shall deny the petition for extraordinary writ.
                  FACTUAL AND PROCEDURAL BACKGROUND
       On May 1, 2013, the Bureau filed an original petition alleging that Andrew came
within the provisions of section 300, subdivision (b), in that that he was at substantial risk
of suffering serious harm as a result of Mother’s mental illness and problem with alcohol
use. In particular, the petition alleged that Mother had been placed in a psychiatric
hospital for five days in March and 11 days in April, after experiencing auditory
hallucinations. Then, in April, she “was acting strange, seeing witches in people, and
driving erratically with the child in the car.” While experiencing auditory hallucinations,
she had “stopped her vehicle at an intersection, slammed a police officer’s arm in the
door, and struck him with her fist in his chest as he tried to take the keys out of the
vehicle. The child was in the front passenger seat during the incident.” Mother had also
refused to take the medication prescribed by her psychiatrist to stabilize her mental health
and was unwilling to stop drinking alcohol even though, when she drank alcohol, she had
auditory hallucinations.
       On May 2, 2013, the juvenile court ordered Andrew detained in the home of a
relative. Subsequently, at the conclusion of the June 13, 2013 jurisdiction hearing, the
court sustained the allegations in the petition and took jurisdiction over Andrew,
declaring him a dependent of the juvenile court.
       In the disposition report dated July 9, 2013, and filed on August 20, the social
worker reported that Mother suffered from bipolar disorder with “psychosis symptoms.”
Since her most recent hospitalization, Mother had continued her medication regimen and
followed all of her psychiatrist’s treatment recommendations. She understood “the need
to be vigilant about administering her prescribed psychotropic medication and refraining
from drinking alcohol.” She had been taking her medication daily, testing clean,
attending weekly 12-step meetings, and meeting with her psychologist every two weeks.
Mother was symptom free and capable of providing adequate care for Andrew. Andrew


                                              2
had enjoyed being with his great-aunt and uncle, but was ready to return to Mother’s
care. Because the Bureau believed there was a low risk to Andrew’s safety, it
recommended that the court return him to Mother, with family maintenance services.
       On August 20, 2013, the juvenile court adopted the recommendations of the
Bureau and returned Andrew to his mother’s care, with family maintenance services.
       On October 23, 2013, the Bureau again detained Andrew and filed a supplemental
petition, pursuant to section 387, alleging that mother had failed to comply with her case
plan by not taking her medication and missing a drug test. On October 16, it was
reported that she had been behaving in a disoriented, rambling and paranoid way. On
October 17, she had arrived two hours late to pick Andrew up from school, displaying
agitated behavior. Andrew also had four unexcused absences from school between
October 15 and October 21. Finally, during an October 21 welfare check at the home,
Andrew had reported being scared. He said that Mother was “ ‘acting strange again and
not making sense,’ ” and that she had “ ‘grabbed my arm really hard for no reason when
we were outside walking and would not let go when I said it hurt me.’ ”
       On October 24, 2013, the juvenile court again ordered Andrew detained.
       In a memorandum filed on November 14, 2013, the social worker related that,
during the October 21 visit to the home, he had spoken with Andrew privately. Andrew
began to cry and said he did not want to leave his mother, but that she was “acting so
‘weird’ again.” When the social worker asked if he wanted to visit his aunt, he said
“yes.” When the social worker went to speak to Mother, Mother refused to cooperate and
the social worker said he would have to call the police. When he did so, Mother
“immediately rushed up to the [social worker,] yelling at the top of her voice to get out of
her home,” and postured “like she was ready to assault the [social worker].” Eventually,
Andrew was taken to the home of his aunt. The social worker reported that it appeared
that Mother “was at the beginning of another mental health break due to her poor self
management of her medication.” Andrew was happy to be residing with his aunt, had
returned to school, and was hopeful that his mother could get the help she needed. The



                                             3
Bureau believed that Mother had failed her family maintenance program and requested
that Andrew be removed and placed into the care of his paternal aunt.
       Also on November 14, 2013, the juvenile court sustained the supplemental
petition.
       In the December 12, 2013 disposition report, the social worker reported that the
Bureau had made repeated attempts to reach Mother by phone, email, and letter, but she
had not responded to those attempts. She had not visited with Andrew since the most
recent removal in October. Andrew had adjusted well to his placement, and the school
had reported that his behavior had much improved since he had been in his great aunt’s
care.3 Andrew was happy living with his great aunt and great uncle, whom he had known
his entire life. He had communicated to the social worker that he was open to having
their home become permanent for him, and the great aunt and great uncle were willing to
consider guardianship or adoption.
       At the December 12, 2013 disposition hearing on the supplemental petition, the
juvenile court terminated Mother’s family maintenance services and set a review hearing
for May 2014.
       In the May 22, 2014 status review report, the social worker related that, after more
than three months without contact, mother had sent an email to the social worker on
February 1, 2014, explaining that she had been in a house fire; asking about Andrew; and
stating she wished to again begin receiving Andrew’s monthly disability benefits, which
the Social Security Administration had informed her would cease due to his being in
foster care. Since then, Mother had been cooperative with the Bureau and had been
diligent regarding her case plan responsibilities, including testing negative on all
submitted tests, attending 12-step meetings, administering her medications, and regularly
meeting with her psychiatrist and therapist. She had also had weekly phone visits and
one in-person visit with Andrew. Andrew was thriving in the home of his great-aunt and


       3
        The social worker reported that Andrew suffered from ADHD (attention deficit
hyperactivity disorder), and had delays in academic performance and socialization.


                                              4
great-uncle, and was “aware of the situation with his mother and understands why he was
removed.” He had told the social worker that, “while he loves his mother, it is best if he
remain[s] with his aunt.” Since they had been in contact again, he had been asking about
Mother more often and said he would like to continue to visit with her.
       The Bureau recommended that the court continue the dependency and order
reunification services for Mother.
       On May 23, 2014, the juvenile court ordered reunification services for Mother.
       In a December 2, 2014 status review report, the social worker related that Mother
now had twice-weekly phone calls and twice-monthly supervised visits with Andrew.
Mother had been working on her case plan since February, and had tested negative on all
random tests, attended 12-step meetings as required, and met regularly with a psychiatrist
and therapist. Mother also had apparently been hospitalized twice, in October 2013, and
January 2014, while out of contact with the Bureau. A letter from her most recent
psychiatrist reflected that Mother had not informed him of these involuntary
hospitalizations. The Bureau also learned that Mother had set the previously reported
house fire in a suicide attempt; Mother had said she “wanted to die because she wanted to
be saved from going to hell.”
       Andrew continued to thrive in the care of his great aunt and other relatives, all of
whom had a previous relationship with Andrew and who provided him with a safe and
consistent environment. He was taking his ADHD medication and his school
performance was improving; he presented as calmer and more focused. Andrew also
understood the situation with Mother and consistently reported feeling safe in his
relatives’ care, all of whom showed him a great deal of attention and love. He told the
social worker that he wanted “to stay here and go with mom when she is ‘ “fully, fully
better.” ’ ” A visit supervisor had told the social worker that Mother had always been
appropriate with Andrew during visits. She also said, however, that Mother “wants to
engage but doesn’t appear to know how,” and expressed concern about “what will happen
if Andrew is returned to her care again.”



                                             5
       The Bureau recognized that Mother had “the ability to function while on her
medication. However, if she does not take her medication, or drinks alcohol as she has
done previously, the child is placed at severe risk. Andrew has endured a tremendous
amount of distress and detriment while in the mother’s care during her psychotic breaks.”
The Bureau believed it would be dangerous for Andrew to be returned to Mother’s care,
“given her fragile mental state, her inability to sustain her mental health for a prolonged
period of time, and what appears to be her failure to disclose to the physician monitoring
her medication . . . her two most recent psychiatric hospitalizations.” The Bureau
therefore recommended that the court terminate Mother’s reunification services and set a
section 366.26 hearing.
       In a status review report filed on April 9, 2015, the social worker related that,
although Mother had been compliant with her case plan for over a year, she had never
acknowledged starting the fire at her home or her two psychiatric hospitalizations during
the time she was out of contact with the Bureau. Her twice-weekly phone calls with
Andrew had been terminated after she offered Andrew a new PlayStation if he moved
back to her home. Andrew said he “really loves it where he is living now,” with two
great-aunts and a great-uncle, and that he “ ‘would like living with [Mother] when she
gets better and when she quits smoking.’ ” By “ ‘gets better,’ ” he said he meant, “
‘[u]ntil she is ready to take care of me again and not burn my food, learn not to keep me
up at night and not let me watch videos on the computer all the time. She needs to tell
me to go to bed.’ ”
       The social worker also reported that, at a January 10, 2015 hearing, the court had
been informed of a phone call in which Mother had asked Andrew “why he was lying to
her.” Finally, Mother did not support Andrew’s current placement because she believed
that, as three single, adult siblings, his caretakers had “certain lifestyles that are not
conducive to raising a child.”
       At the combined 12- and 18-month hearing, which took place on April 9, 2015,
Todd Lenz, who was the social worker on the case from June 2013 until September 2014,
testified that Mother had stayed in contact with him between February and September


                                                6
2014, and had participated in her case plan during that period. In May 2014, Lenz had
received a letter from Mother’s then-psychiatrist, in which he wrote that he would
“strongly recommend” that Mother “be considered to regain custody of Andrew.”
       When asked why he did not recommend that Andrew be returned to Mother, given
that she was in compliance with her case plan, Lenz responded that she was cooperative
and able to comply with what the Bureau was asking of her when she was on her
medication. The concern was when she was off of her medication and, “because it was a
second removal, the concern was we didn’t want to traumatize the child anymore. [¶]
You know, she does well when the child is not in the home. It’s when the child is in the
home that she struggles with her mental health.”4
       Mother testified that her situation had changed since Andrew was removed from
her care for the second time. She now understood what her problem was; she was
medication compliant; she was seeing her therapist every two weeks, and would continue
to do so if Andrew came home. Mother had been compliant with her case plan for more
than a year and believed that she was well now. In particular, she explained, “I had
fixated on this person that was previously in my life” and had been “an influence” in her
life 25 years previously. And she had “fixed that by actually meeting with him.”
       At the conclusion of the hearing, the court commented on Mother’s inappropriate
facial expressions in the courtroom, including “smiles” and “smirks,” during a discussion
of Andrew’s fear of going home. The court then found that Mother had “no insight into
her behavior. . . . [¶] I don’t think she’s a bit grateful for somebody taking care of this
child while she herself was in total disarray. . . . I didn’t sense anything in that except
hostility. [¶] And that bothers me so much, because I think her lack of insight into her
behavior is part of whatever mental issues she has; lack of insight into the frightening
behavior, lack of insight into what her behavior did to her son, this crazy stuff he




       4
         Three other social workers who also worked with Andrew and Mother for a short
time testified at the hearing as well.


                                              7
witnessed, this crazy stuff he heard, this scary stuff he heard, the things that he had to do
and see.
       “I don’t think she has any insight into that. And, frankly, I haven’t sensed a sense
of accountability for it, for this child. [¶] . . . [¶] I think there’s a lot of credibility issues
with [Mother]. But sometimes I don’t know whether it’s something she just doesn’t
choose to remember, whether she can’t remember, whether she dreams it up another way,
or whether it’s intentional. I think some of it’s intentional. [¶]
       “I do not find the child to be safe in [Mother’s] home, not for a second. And I’m
sorry about it, but I think it’s a very big reality. . . . [¶] . . . [¶] . . . I think you wish him
well but I don’t think you have any concept of his—he’s well now, not in your home, and
that you have issues that are still evident to this court.
       “I am very concerned about some of the testimony of what she did and did not tell
the psychiatrist and what she chooses to share. But it all goes into the issue of credibility
and the lack of insight into what . . . her issues are.
       “So I’m going to follow the recommendations. I think they are very appropriate.
I’m not giving family maintenance. It’s been 23 months. Enough is enough. [¶] I think
it’s very important for this young boy not to have this being torn all the time. And I think
this has been a terrible, terrible time for him. [¶] So I am setting a 366.26.”
       On April 15, 2015, Mother filed a notice of intent to file writ petition.5
                                          DISCUSSION
                               I. Substantial Risk of Detriment
       Mother contends substantial evidence does not support the juvenile court’s finding
that return of Andrew to her custody would create a substantial risk of detriment to
Andrew’s physical or emotional well-being.
       Section 366.22, subdivision (a), directs that, if the juvenile court finds, by a
preponderance of the evidence, that return of a child to his or her parent “would create a

       5
          On May 28, 2015, Mother filed a petition seeking review of the juvenile court’s
orders and requesting a stay of the section 366.26 hearing pending determination of this
petition.


                                                 8
substantial risk of detriment to the safety, protection, or physical or emotional well-being
of the child,” the court must terminate reunification services and hold a section 366.26
hearing within 18 months after the date the child was removed from the parent’s physical
custody, upon a finding that reasonable services were offered or provided. This
“substantial 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 than an
available foster parent or other family member.’ It must mean what it says: that return
presents a substantial risk of detriment to the child.” (Rita L. v. Superior Court (2005)
128 Cal.App.4th 495, 505.)
       Our review of the juvenile court’s finding of detriment involves reviewing the
record to determine whether there is “substantial evidence in support of the finding.”
(Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763.)
       Mother argues that because she fully complied with the requirements of her case
plan, the juvenile court’s detriment finding was not supported by substantial evidence.
While compliance with the case plan “is certainly a pertinent consideration at the section
366.22 hearing[,] it is not the sole concern before the dependency court judge.”
(Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 704.) Other factors that the
juvenile court can consider include, inter alia, a parent’s limited awareness of the
emotional and physical needs of the child, the manner in which the parent has conducted
herself in relation to the child in the past, and whether returning the child to the parent’s
custody “will be detrimental because severing a positive loving relationship with the
foster family will cause serious, long-term emotional harm.” (Id. at pp. 704-705.) Thus,
as another appellate court put it in a similar context, “[t]he juvenile court ha[s] the duty to
evaluate [the parent’s] efforts against his previous failings, and, more importantly, to
evaluate the likelihood that he would be able to maintain a stable, sober and noncriminal
lifestyle for the remainder of [his child’s] childhood. [The parent’s] belated compliance
with reunification services is not definitive on this issue.” (In re Brian R. (1991) 2
Cal.App.4th 904, 918.)


                                              9
        In the present case, it is undisputed that, at the time of the hearing, Mother had
been working diligently on her case plan for over a year, ever since she resumed contact
with the Bureau in February 2014. She was medication compliant, regularly met with her
therapist and psychiatrist, submitted to random testing, regularly attended a 12-step
program, and participated in supervised visits with Andrew. Her psychiatrist had
recommended that the court consider returning Andrew to her care.
        Despite this evidence of Mother’s commendable efforts on her own and Andrew’s
behalf, we conclude that substantial evidence supports the juvenile court’s finding that
return to Mother’s custody would be detrimental to Andrew. As a panel of this Division
stated in In re Dustin R. (1997) 54 Cal.App.4th 1131, 1141-1142: “Availing herself of the
services provided is one consideration under section 366.22, subdivision (a), but under
this statute the court must also consider progress the parent has made towards eliminating
the conditions leading to the children’s placement out of the home.”
        First, the juvenile court observed Mother’s behavior and testimony in court and
noted her “really inappropriate facial expressions”; she was smirking, smiling, and
laughing at inappropriate times, and “giving everybody dirty looks.” The court also
found that Mother had no insight into her “frightening behavior” and “what her behavior
did to her son,” and that she had no sense of accountability for Andrew, who had
improved greatly since he began living with his great aunts and great uncle, with whom
he felt safe. Andrew was fearful of going home and did not want to return to Mother
until she was “ ‘fully, fully better.’ ”6 The court further found that there were “a lot of
credibility issues” with Mother, including evidence that she had not told her psychiatrist
or the social worker about her two most recent hospitalizations or about setting the house
fire.


        6
        The court also observed that Andrew, who had been interacting with Mother
during visits and phone calls, “knows whether she’s better or not.” Indeed, phone contact
between Mother and Andrew had been terminated due to Mother’s inappropriate
comments, including offering to buy Andrew a PlayStation if he came home and accusing
him of lying to her.


                                              10
       In addition, the social worker who had been on the case longest expressed concern
that she struggled with her mental health when Andrew was in her home and that he did
not want Andrew to be traumatized anymore. A visit supervisor had told the social
worker that, during visits, Mother “wants to engage but doesn’t appear to know how,”
and had expressed concern regarding “what will happen if Andrew is returned to her care
again.”7
       In sum, substantial evidence supports the juvenile court’s conclusion that, nearly
two years after Andrew was first removed from Mother’s home, Mother had not
eliminated the conditions that led to the out-of-home placement. The court reasonably
concluded that return of Andrew to Mother’s care would create a substantial risk of
detriment, subjecting him to a precarious situation in which Mother would be at risk for
another mental break that would endanger him both physically and emotionally. (See
§ 366.22, subd. (a); In re Dustin R., supra, 54 Cal.App.4th at pp. 1141-1142 Angela S. v.
Superior Court, supra, 36 Cal.App.4th at p. 763; see also Constance K. v. Superior
Court, supra, 61 Cal.App.4th at p.709.)
                                  II. Alleged Misconduct
       Mother contends the Bureau’s counsel committed misconduct when she stated in
her closing argument at the April 9, 2015 hearing, that Mother “also accused Andrew of
lying.” According to Mother, this false and inflammatory statement was “absolutely
unsupported by the evidence.” Mother is mistaken.


       7
          Mother relies on David B. v. Superior Court (2004) 123 Cal.App.4th 768 and In
re Yvonne W. (2008) 165 Cal.App.4th 1394 for the proposition that, because she
completed her case plan, the juvenile court was required to return Andrew to her care.
Neither case is analogous to the present one. In David B., the appellate court criticized
the juvenile court for focusing on insignificant details regarding the father’s parenting
abilities, rather than on whether the child’s “safety, protection, or physical or emotional
well-being would be placed at substantial risk in [the father’s] care.” (Id. at p. 790.) In
In re Yvonne W., the juvenile court had improperly found detriment based solely on the
fact that the mother was living in a long-term shelter, which the child did not want to do.
(Id. at p. 1401.) As already discussed, unlike David B. and In re Yvonne W., this case
involves much more than minor flaws in parenting styles or imperfect living situations.


                                              11
       The record reflects that, in the April 9, 2015 status review report, the social worker
reported that, at an earlier hearing, the court had been informed of a phone call in which
Mother had asked Andrew “why he was lying to her.” In addition, at the April 9 hearing,
one of the social workers, Crystal Gabriel, testified about the phone conversation in
which Mother “told Andrew he was lying.” There was no misconduct on the part of the
Bureau’s counsel.
                                     DISPOSITION
       The petition for extraordinary writ is denied on the merits. The request for a stay
is denied. Our decision is final as to this court immediately. (Cal. Rules of Court, rule
8.490(b)(2)(A).)




                                             12
                                 _________________________
                                 Kline, P.J.


We concur:


_________________________
Richman, J.


_________________________
Stewart, J.




                            13
