K.C. v. Superior Court CA4/3

Opinion

Filed 9/2/26 K.C. v. Superior Court CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

K.C., Petitioner, G067033 v. (Super. Ct. No. 24DP0146)

THE SUPERIOR COURT OF OPINION ORANGE COUNTY,

Respondent;

ORANGE COUNTY SOCIAL SERVICES AGENCY et al., Real Parties in Interest.

Original proceedings; petition for extraordinary writ to challenge an order of the Superior Court of Orange County, Daphne Grace Sykes, Judge. Petition denied. Orange County Parent’s Counsel and Sunny Dillon for Petitioner. No appearance for Respondent. Leon J. Page, County Counsel, Debbie Torrez and Chloe R. Maksoudian, Deputies County Counsel, for Real Party in Interest Orange County Social Services Agency. Sara Nakada, Public Defender, and Brian Okamoto, Deputy Public Defender, for Real Party in Interest L.R., Sr. No appearance for Minor. * * * Petitioner K.C. (Mother) seeks extraordinary relief (Welf. & Inst. Code, § 366.26, subd. (l); Cal. Rules of Court, rule 8.452) from the juvenile court’s order made at the concurrent 18-month and 24-month status review hearing, terminating services and setting a hearing pursuant to section 366.26 to consider termination of parental rights and implementation of a permanent plan for her son L.R. (the child).1 We deny Mother’s petition for extraordinary writ relief. FACTS AND PROCEDURAL HISTORY2 I. THE JUVENILE COURT SUSTAINS THE CHILD WELFARE PETITION The juvenile court found true by a preponderance of the evidence, the allegations of an amended child welfare petition (the petition), filed by the Orange County Social Services Agency (the Agency) on behalf of the child, 1 All further statutory references are to the Welfare and Institutions Code unless otherwise specified. 2 Sections I and II summarize relevant portions of the fact and procedural history contained in the prior opinion in this case (In re L.R. (Apr. 9, 2026, G065851) [nonpub. opn.] (L.R.)), where a full summary of the facts and procedural history can be found. Quoted material in those two sections are taken directly from that prior opinion.

2 who was then three years old. “The petition alleged the child came within the jurisdiction of the juvenile court under section 300, subdivision (b)(1) because the child suffered, or there was a substantial risk the child would suffer, serious physical harm or illness: (1) as a result of the failure or inability of the parents to supervise or protect the child adequately and (2) by the inability of the parents to provide regular care for the child due to their mental illness or substance abuse.” (L.R., supra, G065851.) The following summarizes relevant allegations of the petition. “[O]n January 25, 2024, the child was admitted to the hospital for ‘a swollen neck/lymph node issue.’ Two days later, the child submitted to a urine drug screening test which tested positive for the presence of fentanyl. Mother reported she had ‘“no idea” how the child could have tested positive for fentanyl’ and denied observing ‘any symptoms of fentanyl exposure.’ Mother reported she and the child had been at a laundromat the night before the child’s hospitalization, which laundromat, according to the police, was known for ‘transient activity and drug use.’ The child was taken into protective custody and placed with a maternal relative. “The child had prior exposure to fentanyl in May 2022. After the parents and the child attended a swap meet ‘known to have controlled substance sales,’ the child became nonresponsive after ingesting fentanyl. Paramedics administered Narcan to the child upon their arrival at the scene. “Before that, in October 2021, oxycodone, hydrocodone, Xanax bars, Alprazolam, and buprenorphine were found inside a locked safe at the maternal grandparents’ residence during a probation search of [the child’s father, L.R., Sr.]. Mother and Father were thereafter arrested. “The petition further alleged Mother had unresolved substance abuse problems involving heroin, marijuana, alcohol, Xanax, fentanyl, and 3 methamphetamine. Mother started experimenting with drugs at 16 years old leading to her use of marijuana, alcohol, Xanax, and methamphetamine. While in jail at the age of 19 years, Mother used heroin; she later used heroin with Father. The maternal grandparents reported Mother used drugs during her pregnancy with the child but has been sober since having the child. “Mother reported her ‘“on and off”’ use of heroin since 2018. She claimed the last time she used heroin, smoked marijuana, or used THC was in December 2023. She denied having a then-current substance abuse problem. “The petition alleged Father also had an unresolved substance abuse problem which involved his use of heroin, oxycodone, hydrocodone, Xanax bars, Alprazolam, and buprenorphine. Mother reported heroin was Father’s drug of choice although she did not know if he was still using. “Father has multiple drug-related criminal charges and convictions. He has been arrested, charged, and/or convicted of assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)), possession of a controlled substance (Health & Saf. Code, § 11350), and possession of a controlled substance without a prescription (Bus. & Prof. Code, § 4060).” (L.R., supra, G065851.) The following month at the disposition hearing, “the juvenile court declared the child a dependent child of the court under section 360 subdivision (d).” (L.R., supra, G065851.) Pursuant to section 361, subdivision (d), the court found “reasonable efforts had been made to ‘eliminate the need for removal of the child from his home’ and further found vesting custody of the child ‘with the parents would be detrimental to the child.’” (Ibid.) The court approved a case plan and a visitation plan for the parents which included “counseling, parenting education, a 12-step program, substance 4 abuse testing, and participation in an outpatient substance abuse program.” (Ibid.) II. THE 12-MONTH REVIEW HEARING In a report submitted by the Agency several months before the July 2025 12-month review hearing, the Agency initially recommended the juvenile court continue services for an additional six months and set the matter for an 18-month review hearing. The Agency had reported, inter alia, Mother had completed a medical detoxification program, spent more than 30 days at Pheonix House, and participated in drug patch testing services and a substance abuse outpatient program. The Agency’s recommendation changed in its April 23, 2025 addendum report to recommend the termination of reunification services for the parents. The Agency reported that although Mother claimed she had been sober as of December 12, 2024, “Mother’s drug patch test results continued to yield positive results for methamphetamine and fentanyl.” (L.R., supra, G065851.) The Agency produced evidence at the hearing showing Mother had tested positive for fentanyl at the level of: (1) 3 ng/mL during the May 14 to May 28, 2025 drug patch period; (2) 5 ng/mL during the March 20 to April 9 drug patch test period; (3) 14 ng/mL during the March 4 to March 20 drug patch test period; and (4) 16 ng/mL during the February 18 to March 4 drug patch test period. Mother denied having relapsed or otherwise using illicit substances. At the hearing, evidence was presented which suggested that the fact Mother’s levels of fentanyl were decreasing since March 2025 indicated Mother might not have been actively using fentanyl. Mother’s outpatient 5 substance abuse program physician explained, “‘“[T]he way fentanyl works, it processes and metabolizes through the live[r], is stored in fat cells, and it can stay in your body for a long time.””” (L.R., supra, G065851.) Mother’s behavioral health therapist and case manager agreed Mother’s fentanyl levels were “‘indicative of an individual who is not actively using fentanyl.’” (Ibid.) The social worker testified at the hearing that she did not have reason to believe Mother was then currently using. She explained Mother’s most recent drug patch test results were negative and Mother had been “‘very cooperative and engaged’” with the social worker. (L.R., supra, G065851.) Mother’s behavioral health therapist and case manager testified that, in her experience, “it is not unusual for a client to have abstained from substances and still test positive for several months thereafter,” and she “observed Mother’s test results generally reflect[ed] declining levels of substances in her system.” (L.R., supra, G065851.) Following the 12-month review hearing, the juvenile court stated: “‘What I want to do, I do want to continue this for six months. I want to give the parents an additional opportunity—a little more time.’ The court stated it understood the parents were involved in ‘pretty significant long-term drug use’ and that ‘it takes a few tries sometimes to get that on track and to make the appropriate adjustments.’” (L.R., supra, G065851.) The court expressly warned Mother, “‘Going forward, the drug tests by the parents need to be completely, completely clean.’” (Ibid.) The juvenile court continued services and set the matter for a concurrent 18-month and 24-month review hearing. “The child appealed from the juvenile court’s order continuing services to the parents and setting a concurrent 18- and 24-month review 6 hearing.” (L.R., supra, G065851.) A panel of this court in L.R., supra, G065851, affirmed the court’s order. III. THE CONCURRENT 18-MONTH AND 24-MONTH REVIEW HEARING The concurrent 18-month and 24-month review hearings took place over four days in April and May 2026. The juvenile court accepted into evidence the Agency’s addenda reports dated January 9, 2026, February 19, 2026, March 25, 2026, April 21, 2026, April 30, 2026, May 11, 2026, and May 27, 2026 as well as certain documentary evidence proffered by Mother at the hearing. In addition, assigned social worker Maja Nikolic and Mother each testified at the hearing. A. Summary of Relevant Evidence Mother continued to drug patch test which yielded a mix of negative and positive test results for the presence of fentanyl as reported in the Agency’s April 30, 2026 addendum report as follows:

7 The record shows Mother thereafter tested negative for fentanyl for the drug patch wear period of April 16 through April 29, 2026. Mother continued to deny using fentanyl and denied knowing why she was testing positive. The social worker received confirmation from the lab that provided the drug patch testing services that none of the medications Mother reported taking could have caused a positive fentanyl test. In addition, Mother’s counseling services were terminated due to there being a “standstill in progress.” Mother had expressed being unwilling to work with the Agency and to address the Agency’s concerns. The therapist reported Mother “denies the concerns of the Agency, [and] believes she’s done everything she needs to [in order] to have the child returned to her care.” The therapist did not submit another extension referral because “an extension wouldn’t necessarily help more progress to be made at this point.”

8 The social worker testified “that [al]though Mother has participated in services, she has not been able to demonstrate or share insight” and hasn’t demonstrated “progressive behavioral changes.” B. The Juvenile Court Terminates Services and Sets Permanency Hearing The juvenile court terminated reunification services to Mother and Father and set a permanency hearing pursuant to section 366.26. Mother filed a petition for extraordinary writ relief seeking to set aside the court’s orders at the concurrent 18-month and 24-month reviewing hearings. Father filed a letter in support of Mother’s writ petition. DISCUSSION I. GOVERNING LEGAL PRINCIPLES AND STANDARD OF REVIEW At the 18-month review hearing, the juvenile court must return 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 . . . would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.” (§ 366.22, subd. (a)(1).) If the child is not returned to a parent at the permanency review hearing, the court must terminate reunification services and order a hearing pursuant to section 366.26. (§ 366.22, subd. (a)(3).) “We review the juvenile court’s finding of detriment for substantial evidence. [Citations.] Under that standard we inquire whether the evidence, contradicted or uncontradicted, supports the court’s determination. We resolve all conflicts in support of the determination, indulge in all legitimate inferences to uphold the findings and may not substitute our deductions for those of the juvenile court. [Citations.] . . . To be substantial, the evidence must be of ponderable legal significance and must 9 be reasonable in nature, credible, and of solid value.” (Georgeanne G. v. Superior Court (2020) 53 Cal.App.5th 856, 865.) II. SUBSTANTIAL EVIDENCE SUPPORTS THE DETRIMENT FINDING Following the concurrent 18-month and 24-month review hearing, the juvenile court observed “Mother has checked off the boxes for the services in her case plan.” The court found, however, returning the child to Mother would create a substantial risk of detriment to the child, within the meaning of section 366.22, subdivision (a)(1), because Mother continued to (1) test positive for fentanyl since the 12-month review hearing and (2) lack insight about why this case was brought in the first place. Substantial evidence supports the court’s detriment finding. At the hearing, the juvenile court explained that, notwithstanding the court’s “zero tolerance position” and specific warning to Mother and Father at the 12-month review hearing “they must have absolutely no positive tests going forward,” Mother has since tested positive for fentanyl at least six times, the most recent occurring only a few months earlier. The court noted Mother’s six positive tests occurred in between her testing negative for fentanyl.3 Consequently, the juvenile court explained: “Mother’s statement that her sobriety date was back in December of 2024 is simply not believable based on the evidence. There’s no evidence that these drug tests were invalid or not properly administered. Mother’s explanation that it must be her other medicine that made the test positive for fentanyl is not a valid explanation and is contrary to the evidence.”

3 The juvenile court observed after the 12-month review hearing, Father completely stopped submitting to drug testing.

10 Mother does not challenge the juvenile court’s finding that since the 12-month review hearing in July 2025, Mother has tested positive for fentanyl six times. Nor does Mother argue insufficient evidence supports the court’s finding Mother’s other medications could not have caused any positive test. Instead, citing Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1327–1328, Mother argues “an imperfect drug-testing record does not, standing alone, establish that return of a child would create a substantial risk of detriment; the pertinent inquiry is not whether the parent’s testing record is unblemished, but whether the record as a whole demonstrates an actual, current risk to the child.” Unlike the instant case, the child welfare case in Jennifer A. v. Superior Court was not based upon the mother’s drug use. In that case, the social services agency had never asserted that any drug use impaired the mother’s parenting abilities. While it became apparent during the course of the case that the mother was an occasional marijuana user, the appellate court concluded the evidence of the mother’s imperfect drug testing was insufficient to establish any substantial risk of detriment to the mother’s children. (Jennifer A. v. Superior Court, supra, 117 Cal.App.4th at pp. 1327– 1328.) Here, in contrast, child welfare jurisdiction was primarily based on the fact the child tested positive for fentanyl when he was only two years old, at which time paramedics had to administer Narcan “to bring him back from the brink of death,” and again tested positive for fentanyl 20 months later when he was four years old. It was also based on Mother’s and Father’s concomitant and unresolved use of fentanyl. The record establishes that two years after the jurisdiction and disposition hearing and up until a few months 11 before the subject order, Mother continues to have positive drug patch results for the presence of fentanyl. As pointed out by the juvenile court, although Mother denies continued fentanyl use, no evidence explains why she continued to test positive. Unlike Mother’s drug test history before the 12-month review hearing which reflected a downward trend of fentanyl levels in her system, Mother’s post 12-month review hearing drug test history showed fluctuating levels of fentanyl. No evidence explained why Mother would continue to have fentanyl in her system eight months and counting after she claimed sobriety effective December 2024 or how Mother could alternatively test positive and negative for the presence of fentanyl unless she was actively using that substance. As explained by the juvenile court, even if it were to “take[] [Mother’s] word and conclude[] that [Mother] really has not used since December 2024, assuming she has not used since December 2024 yet she’s still testing positive on several different occasions, then that means that drugs are still somehow, someway getting into her system; she has no idea how, where or when. It follows that if this child were around [Mother] unsupervised, then this could happen to the child. Drugs could find their way into his system yet a third time without anyone knowing how it happened.” Mother does not respond to the court’s concern in her appellate briefs. In terminating services and setting a permanency hearing, the juvenile court also found Mother continued to lack insight why this child welfare case was brought in the first place. At the concurrent 18-month and 24-month review hearing, the court explained: “Services are set up so that a parent can gain what we call insight; meaning new thought, understanding, knowing and being able to state and say clearly what led up to the problem, 12 what are the factors, what specific things will prevent it in the future. [¶] [Mother’s] therapist concluded that Mother did not get to the level which was needed for the therapist to be sure that Mother had enough understanding of what brought her to this point. Furthermore, the therapist’s professional opinion was that even with future sessions, the therapist would not be able to get through to Mother on this point. When asked on the stand why the child was taken, Mother simply said because she was doing drugs.” Citing, inter alia, Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, Mother argues the evidence of her lack of insight is akin to “unspecific, uncorroborated professional impression” and insufficient to support the juvenile court’s finding of detriment. Unlike the circumstances in Blanca P., here, the court did not rely solely on the therapist’s opinion regarding Mother’s lack of insight. Instead, the court’s detriment finding was also based on Mother’s drug test results indicating her continued use of fentanyl. DISPOSITION The petition for extraordinary writ relief is denied.

MOTOIKE, P. J.

WE CONCUR:

MOORE, J.

DELANEY, J.