Filed 2/13/14 In re J.S. CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE



In re J.S. et al., Persons Coming Under
the Juvenile Court Law.


MARIN COUNTY HEALTH AND
HUMAN SERVICES,
         Plaintiff and Respondent,                                   A138506
v.
                                                                     (Marin County Super. Ct. Nos.
KATHERINE S.,                                                        JV25654A, JV25655A)
         Defendant and Appellant.



         Katherine S. (Mother) appeals from dispositional orders regarding her twin
children, J.S. and K.S. (collectively Minors). She argues the juvenile court erred in
adjudicating Minors dependents under Welfare and Institutions Code section 3001 and
that it abused its discretion by failing to order a program of informal supervision. She
further contests the juvenile court’s dispositional orders, contending the court erred in
removing Minors from her custody and in ordering supervised visitation.
         We reject Mother’s challenges to the jurisdictional findings and conclude the
juvenile court did not abuse its discretion in refusing to order informal supervision. As



1
    All undesignated statutory references are to the Welfare and Institutions Code.

                                                             1
we explain below, subsequent events have rendered Mother’s other challenges to the
dispositional order moot. We therefore will not address those arguments.
                        FACTUAL AND PROCEDURAL BACKGROUND
       Minors were born in 2009. During her pregnancy, Mother began using
prescription medications for back pain, use that continued throughout these dependency
proceedings. The Marin County Department of Health and Human Services (the
Department) filed the original dependency petition in this case in August 2012. At the
initial hearing, the juvenile court ordered family maintenance services for Mother, with
Minors continuing to reside with her at a shelter in San Rafael. At the October 10, 2012
jurisdictional hearing, the juvenile court sustained the petition and set a dispositional
hearing.
       While the family was receiving services, the Department received three more
referrals. The referrals alleged Mother had left Minors unsupervised in the residence and
in a van. In addition, a referral reported drug activity in Mother’s home, and although
Mother agreed to submit to urine testing on several occasions, she did not request those
tests when she visited the clinic.
       Finally, a referral on December 10, 2012, reported that Mother was asleep and
could not be roused for an unknown length of time while Minors were in her care.
Minors attempted to wake Mother but could not do so. Minors unlocked the front door of
their residence and called a shelter staff member who found Minors naked, their bodies
covered in ink from coloring markers. The staff member also could not awaken Mother
for several minutes. Mother finally awoke but seemed dazed, and she wandered around
the room aimlessly, teetering from side to side as the staff member bathed and dressed
Minors. According to the staff member, the room was “totally trashed.” The staff also
witnessed an adult male leaving Mother’s apartment prior to noticing that Minors were
not in the school located at the shelter site.
       The police were called and Mother was arrested for child endangerment. Minors
were taken into protective custody. Among Mother’s belongings, the shelter staff found
two “meth pipes” with residue, marijuana, vodka, and approximately 20 bottles of


                                                 2
prescription medications, many of which were empty. Minors could easily have accessed
these items. J.S. reported that “Andrew” hit K.S. on the head, and both Minors reported
that they and Andrew had covered their bodies with markers.
       The Department filed a first amended petition on December 12, 2012, requesting
that the court detain Minors. The court did so pending Mother’s release from jail. The
following day, the Department filed a subsequent petition under section 342.2 It alleged
Minors were at substantial risk of harm because of Mother’s inability to provide regular
care for them due to her substance abuse. Mother submitted on the report, and the
juvenile court ordered Minors further detained.
       On December 14, Mother was using drugs in a park in San Rafael, where she was
arrested for possession of controlled substances (methamphetamine, drug paraphernalia,
and marijuana). Mother tested positive for methamphetamine, told police at prebooking
that she was a regular user of the drug, and had used the drug that very day.
       The Department’s jurisdictional report on the subsequent petition recommended
that the court take jurisdiction of Minors and set a dispositional hearing. The Department
explained that despite services, Minors were still at risk of suffering serious physical
harm. At the jurisdictional hearing, Mother submitted on the section 342 petition and the
court sustained the petition as amended by the parties. The court ordered supervised
visitation twice a week, an order to which Mother did not object.
       In its February 4, 2013 dispositional report, the Department recommended that the
juvenile court continue its jurisdiction and that Mother receive six months of family
reunification services. While the report noted that Mother had begun to make progress in
substance abuse treatment after initially denying any addiction or abuse, the


2
  Section 342 provides: “In any case in which a minor has been found to be a person
described by Section 300 and the petitioner alleges new facts or circumstances, other than
those under which the original petition was sustained, sufficient to state that the minor is
a person described in Section 300, the petitioner shall file a subsequent petition. This
section does not apply if the jurisdiction of the juvenile court has been terminated prior to
the new allegations. [¶] All procedures and hearings required for an original petition are
applicable to a subsequent petition filed under this section.”

                                              3
Department’s view was that continued out-of-home placement was in Minors’ best
interest. The social worker wrote that Mother’s position in treatment demonstrated
progress, but it was precarious because it was a recent change. Mother had spent months
denying her substance abuse problems and avoiding requests for urine tests. The report
concluded that Mother needed to demonstrate substantial progress over time, which
would “then . . . support positive judgment in her parenting and supervision of her
children.”
       At the contested dispositional hearing, the social worker testified about her
concerns with Mother’s continuing struggle with substance abuse. The social worker
explained that Mother’s behavior indicated substance abuse remained a problem and that
Mother had not made substantial progress in addressing her addiction. The social worker
believed it was too early to return Minors to Mother’s care. The social worker expressed
further concerns about Mother’s compliance with her treatment program and her failure
to consult with her substance abuse counselor before starting to take the prescription
medication Adderall. In addition, the social worker stated Mother was making
inappropriate comments about the dependency case in front of her children, telling the
social worker “it’s about time you give me my children back.” The social worker opined
this was harmful to Minors.
       At the conclusion of the dispositional hearing on April 10, 2013, the juvenile court
noted Mother’s 25-year history of substance abuse, her arrest leading to Minors’ removal,
her missed treatment sessions and a positive drug test, as well as her discussions of the
case in front of Minors. The court noted Mother was beginning to address her substance
abuse, but it explained more progress in intensive treatment was necessary, including
attending all meetings, testing clean on all tests, and being consistent in treatment
recovery. It found clear and convincing evidence that the risk of serious harm to Minors
required continued out-of-home placement and that it was premature to return Minors to
Mother. The court ordered supervised visitation, but explained that with progress,
Mother could move to unsupervised visits. It adopted the findings and orders submitted
by the social worker.


                                              4
       Mother filed timely notices of appeal on April 23, 2013.
                                       DISCUSSION
       Mother first challenges the juvenile court’s finding of jurisdiction, and she argues
the juvenile court should have exercised its discretion to order a program of informal
supervision rather than out-of-home placement and supervised visitation. She also
challenges the dispositional order, arguing the juvenile court erred in ordering Minors’
removal from her custody and supervised visitation. We sustain the juvenile court’s
jurisdictional findings, and we conclude Mother’s other challenges to the dispositional
order have been rendered moot.
I.     The Juvenile Court Did Not Abuse its Discretion in Refusing to Order Informal
       Supervision.
       Mother first argues clear and convincing evidence did not support the juvenile
court’s adjudication of dependency. We begin by noting that while Mother raises this
claim in an argument heading, she does not develop the argument in her brief, and we
would be justified in considering it forfeited. (In re Daniel M. (2003) 110 Cal.App.4th
703, 708 [issue forfeited because party “develops no argument and cites no supporting
legal authority for this proposition”].) Moreover, Mother misunderstands the burden of
proof at the jurisdictional phase of the case. The Department was not required to produce
clear and convincing evidence that Minors were persons described in section 300. To the
contrary, under section 355, subdivision (a), only “[p]roof by a preponderance of
evidence must be adduced to support a finding that the minor is a person described by
Section 300.”
       The Department certainly met this burden. The Department’s original jurisdiction
report explained that the Department had received nine referrals involving Mother and
Minors. The Department substantiated allegations of general neglect, and it reported that
Minors’ father had been arrested due to an incident of domestic violence against Mother.
A social worker observed that Mother left Minors alone in their apartment with cigarette
lighters scattered on the floor. The California Highway Patrol had stopped Mother twice
in one day because she was driving Minors without securing them in their car seats. The


                                             5
Department’s jurisdiction report on the subsequent petition recounted Mother’s
December 14, 2012 arrest for possession of controlled substances, and it noted that two
“meth pipes” had been found among Mother’s possessions when she was arrested on
December 10, 2012. The Department concluded Mother was continuing to struggle with
addiction and was therefore unable to protect Minors from safety threats. Viewing this
evidence, as we must, most favorably to the juvenile court’s order, we conclude that its
jurisdictional findings are supported by substantial evidence. (See In re N.M. (2011) 197
Cal.App.4th 159, 168.)
       Although the heading of Mother’s argument frames the issue as a challenge to the
juvenile court’s jurisdictional finding, Mother devotes most of this portion of her brief to
a different argument—that the juvenile court abused its discretion in declining to order
informal supervision under sections 301, subdivision (a) and 360, subdivision (b).3 We
agree that the juvenile court’s decision not to order informal supervision under
section 360, subdivision (b) is one we review for abuse of discretion. (See In re N.M.,
supra, 197 Cal.App.4th at p. 171.) “Whether to exercise this option under section 360,
subdivision (b), is a discretionary call for the juvenile court to make; it may opt to do so,
but it need not.” (Ibid., italics added.) Here, we discern no abuse of discretion by the
juvenile court.
       As support for her argument, Mother quotes at length from the discussion of the
informal supervision option contained in a leading treatise on California juvenile

3
 Section 301, subdivision (a) provides in relevant part: “In any case in which a social
worker, after investigation of an application for petition or other investigation he or she is
authorized to make, determines that a child is within the jurisdiction of the juvenile court
or will probably soon be within that jurisdiction, the social worker may, in lieu of filing a
petition or subsequent to dismissal of a petition already filed, and with consent of the
child's parent or guardian, undertake a program of supervision of the child.”

        Section 360, subdivision (b) provides in relevant part: “If the court finds that the
child is a person described by Section 300, it may, without adjudicating the child a
dependent child of the court, order that services be provided to keep the family together
and place the child and the child’s parent or guardian under the supervision of the social
worker for a time period consistent with Section 301.”

                                              6
dependency law. (See Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure
(2013) § 2.123[2], pp. 2-333-2-334 (Seiser & Kumli).) Mother’s lengthy quotation,
however, omits the following: “An order at disposition for informal supervision is the
exception, rather than the rule, and it is the rare case in which this will be appropriate.
The court should not make such an order unless it finds the order is appropriate, sufficient
to protect the child, and in the child’s best interest.” (Id. at p. 2-333, italics added.)
Mother has not shown that this is one of the rare cases in which such an order would be
appropriate.4
       Mother’s reliance on In re Adam D. (2010) 183 Cal.App.4th 1250 is likewise
misplaced. In that case, the Court of Appeal affirmed the juvenile court’s decision to
order informal supervision under section 360, subdivision (b). (Id. at pp. 1261-1262.)
The juvenile court had determined the minor was subject to dependency jurisdiction and
ordered informal supervision. (Id. at p. 1257.) After concluding that the juvenile court’s
jurisdictional findings were supported by substantial evidence, the Court of Appeal
rejected the parents’ claim that the findings and order for informal supervision amounted
to a miscarriage of justice. (Id. at pp. 1261-1262.) In other words, the Court of Appeal
found the juvenile court’s order fell within the broad range of its discretion under the
statute. Nothing the in the Court of Appeal’s opinion suggests a juvenile court would be
required to order informal supervision in such a case. (See Mejia v. City of Los Angeles
(2007) 156 Cal.App.4th 151, 158 [“opinions affirming a discretionary ruling do not
compel the conclusion that the ruling here was an abuse of discretion”].)
       Much of Mother’s argument is an improper attempt to reargue the facts that were
before the juvenile court. (See James B. v. Superior Court (1995) 35 Cal.App.4th 1014,
1021 [“The Court of Appeal is not a second trier of fact”].) She describes at length her
progress in substance abuse treatment and the efforts she was making to become a better

4
  To the extent Mother argues the juvenile court had no authority to oversee services or
the family unless the matter was brought back before the court under section 360,
subdivision (c), she proceeds from a false premise. This is true only in cases in which
informal supervision is ordered. (Seiser & Kumli, supra, § 2.123[2], at p. 2-334.) In this
case, the juvenile court did not elect informal supervision.

                                                7
parent to her children. But the juvenile court recognized Mother was making progress,
and in fact it commended her efforts. Nevertheless, it found “that more progress in the
intensive treatment program is necessary, including making all meetings, testing clean on
all tests, and being consistent in whatever is requested in the treatment, as well as
consistent in recovery.” The court explained that Minors “must have a safe environment
where an adult is present at all times, clean and sober.” As a consequence, the juvenile
court found that Mother’s “primary focus at this time in her life should be recovery. It
should not be intruded in or changed, that focus, in any way.” The court did not expect
Mother’s recovery to take many more months; it simply believed it was premature to
return Minors to Mother’s custody.
       In light of these findings, which are supported by the evidence, we cannot say the
juvenile court abused its discretion.5 (In re N.M., supra, 197 Cal.App.4th at p. 171
[affirming order for formal supervision despite parent’s cooperation with agency and
participation in services].) The juvenile court’s primary goal must be to protect Minors
from a substantial risk of harm, and it was well within its discretion in concluding that
Mother’s early progress in treatment was insufficient to alleviate its concerns about
possible relapse and potential risk to Minors. (See ibid. [juvenile court could properly
consider potential for recurrence of abuse in deciding to order formal supervision].)
II.    Mother’s Appeal of the Dispositional Orders Has Been Rendered Moot.
       Mother also argues it was error for the juvenile court to remove Minors from her
custody. She claims removal was not supported by substantial evidence, and she “asks

5
  Indeed, in her opening brief, Mother acknowledges her substance abuse made her an
incompetent parent. She also admits she has turned to drugs and alcohol during times of
stress. At the hearing below, Mother also recognized she had relapsed in January by
taking Klonopin.
        In speaking with the social worker, Mother described her December 2012 arrest as
a “ ‘wake up call’ ” and said she knew how to be sober. The Department recognized this
as “a step forward in her recovery process,” but it concluded that “[a] sustained period of
sobriety, along with substantial progress in her treatment program is essential in
mitigating any substantial risk of future harm to her children.” Thus, as the juvenile court
found, before Minors could be returned, Mother needed more time to demonstrate she
would be able to maintain sobriety.

                                              8
that this Court reverse those orders, and remand with orders to return [Minors] to
[M]other’s loving care, with family maintenance services as may be appropriate.” In the
alternative, Mother requests us to order at least unmonitored visitation, including
weekend and/or overnight visits.
       In its brief, the Department contends Mother’s appeal of the dispositional orders is
now moot. The Department has filed a request for judicial notice of a September 26,
2013 “Request to Change Court Order” (Judicial Council of California Form JV-180) the
Department filed in the juvenile court. The Department represented that Mother had been
in a residential treatment program, but “[o]n July 17th, 2013 [M]other and [Minors] left
the program and have been residing together receiving [family maintenance] Services.”
The Department requested that the juvenile court “order that [Minors] have returned to
. . . [Mother’s] care and custody and that the family is receiving Family Maintenance
services as of May 17, 2013.” Mother agreed with the Department’s request, and on
September 30, 2013, the juvenile court granted it.
       We will take judicial notice of the Department’s request for change of order and
the juvenile court’s order granting that request. (Evid. Code, §§ 452, subd. (d), 459,
subd. (a); In re C.C. (2009) 172 Cal.App.4th 1481, 1487, fn. 3; In re Karen G. (2004) 121
Cal.App.4th 1384, 1389-1390.) These documents demonstrate that Mother’s challenges
to the dispositional orders are moot. The juvenile court has already granted Mother the
relief she seeks in her challenges to those orders—it has returned Minors to Mother’s
custody with family maintenance services. Moreover, Mother agreed with the
Department’s request for change of order below. As a consequence, Mother’s challenges
to the dispositional orders are now moot. (See In re Dani R. (2001) 89 Cal.App.4th 402,
406 [appeal moot where parents stipulated to visitation plan set forth in social services
report; mother’s appeal from denial of reunification services mooted by subsequent offer
of services to mother].)




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                                     DISPOSITION
      The orders from which the appeal is taken are affirmed.




                                                     _________________________
                                                     Jones, P.J.




We concur:


_________________________
Simons, J.


_________________________
Needham, J.




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