In re Emily G. CA2/7

Filed 3/25/14 In re Emily G. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re EMILY G., a Person Coming Under B247870
the Juvenile Court Law.
(Los Angeles County
Super Ct. No. CK84816)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

Plaintiff and Respondent,

v.

MARIA V.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Timothy R.
Saito, Judge. Affirmed.
Lori A. Fields, for Defendant and Appellant.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Kim Nemoy, Senior Deputy County Counsel, for Plaintiff and Respondent.

_______________________
 Maria V.’s daughter, Emily G., was declared a dependent of the court pursuant to
Welfare and Institutions Code section 300, subdivisions (b), (d) and (j).1 More than two
years after the child was detained, the juvenile court held a contested section 366.22
permanency hearing and found returning Emily to mother would create a substantial risk
of detriment to the child’s emotional well-being. The court terminated mother’s
reunification services and, with the parties’ consent, selected long-term foster care as
Emily’s permanent placement plan. To facilitate the possibility of future reunification,
the court also ordered Emily to continue participating in conjoint therapy with mother.
Mother appeals the juvenile court’s orders, arguing that: (1) there was insufficient
evidence to support the court’s finding Emily would be at risk of emotional detriment if
returned to mother’s care; (2) the court committed evidentiary error by refusing to permit
mother’s adult son to testify at the section 366.22 hearing; and (3) the court abused its
discretion when it denied mother’s request to continue the section 366.22 hearing to
allow for further reunification services. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND
A. Initial Referral and Detention2
1. Referral and initial investigation
In October of 2010, Jesse G. (father) was living in Los Angeles, California with
his two children, Joseph, then 16, and Emily, then 10. The children’s mother, Maria V.,
was living in North Carolina and had three adult children from a prior relationship:
Jasmine L. (then 21), Richard L. (then 24) and David L. (then 23). Between

1 Unless otherwise indicated, all further statutory citations are to the Welfare and
Institutions Code.

2 Mother previously filed an appeal from the juvenile court’s jurisdiction and
dispositional orders in this matter. In an unpublished decision, we affirmed the portion of
the court’s orders pertaining to Emily and reversed the portion of the orders pertaining to
mother’s now adult son Joseph. (See In re Joseph V. (August 6, 2012) Case No.
B232895.) Our description of the facts and proceedings up to the April 2011
jurisdictional and disposition hearing is summarized from our prior unpublished opinion.

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approximately 1996 and 2006, father and mother had lived together intermittently with
Joseph, Emily, Jasmine, David and Richard.
On October 18, 2010, the Los Angeles County Department of Children and Family
Services (DCFS) received a referral from the Los Angeles County Sheriff’s Department
(LASD) alleging sexual abuse to Joseph and Emily (collectively children). A detective
reported the children’s half-sister Jasmine had informed law enforcement that father
(Jasmine’s step-father) had sexually abused her for a number of years beginning when
she was four years old. Jasmine stated Joseph and Emily were supposed to be living with
mother in North Carolina, but were currently residing with father in Los Angeles.
Mother had allegedly sent the children to visit father, and neither parent could afford to
pay for their return trip to North Carolina. Although mother told Jasmine she did not
believe father had “done anything sexual to the children,” Jasmine was concerned for
their safety based on her past experiences.
The detective who made the initial referral informed DCFS Jasmine had filed
criminal reports in California and North Carolina accusing father of sexual abuse. The
LASD had referred the matter to DCFS after Jasmine reported Joseph and Emily were
currently under the care of their father. The detective provided DCFS with a police
report summarizing the investigation of Jasmine’s criminal complaint. Jasmine told law
enforcement father began orally copulating her on a nightly basis when she was four
years old. Father continued to orally copulate Jasmine until she was 10 or 12 years old,
and then he started to “penetrate her vaginally with his penis.” She also stated her two
older brothers had each witnessed an act of abuse. The last incident of abuse occurred in
2006 while the family was staying at a hotel in Texas. The LASD also interviewed
mother, who stated she knew father had “touched [Jasmine] sexually.”
On October 20, 2010, DCFS contacted mother, who was residing in North
Carolina. Mother stated she had allowed Joseph and Emily to visit their father in
California. Although father was supposed to send the children back to North Carolina,
father informed mother he did not have enough money to purchase their return tickets.
Mother stated that Jasmine had disclosed father’s sexual abuse in 2006 and that father

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had admitted the allegations. Mother also told DCFS that, despite father’s past abuse of
Jasmine, she did not believe he presented a risk to Joseph or Emily because the children
had always denied being abused by father and were primarily cared for by their paternal
grandmother, who lived with father. Mother also stated that, in 2009, a social worker in
North Carolina had investigated Jasmine’s sexual abuse allegations “and told [mother]
she could continue to send the kids to visit there [sic] father.”
DCFS contacted Jasmine, then 21, who was residing in California. Jasmine
stated she was sexually abused by father between the ages of 5 and 16 (approximately
1995-2006). Jasmine also stated that she and her older brother informed mother of the
abuse when Jasmine was 10 years old (approximately 2000) and that father immediately
moved out of the home. However, father later reconciled with mother and returned to the
residence three years later. Father continued to sexually abuse Jasmine after moving
back in to the home, but Jasmine never told mother.
On October 21, 2010, the social worker interviewed Joseph, who stated that he had
been under the care of his father for approximately six months “after his mother sent him
from North Carolina . . . for education purposes.” Emily came to live with father and
Joseph approximately four months later. Joseph stated he preferred to stay “in California
under the care of his father due to mother’s alcohol problems.” Joseph reported that,
when he left North Carolina, mother was drinking about 5 beers a day. Joseph said he
had never been abused by father and he did not believe Jasmine’s allegations.
DCFS also spoke to Emily, who stated that although she was supposed to return to
her mother before school started in North Carolina, she “wanted to stay with her father
longer.” Emily reported that she “like[d] it here” and that she “did not want to return to
her mother right now.” Emily told DCFS mother drank on a daily basis and that “‘she
drinks one and then once she finishes it she gets another one.’” Emily denied ever seeing
father touch Jasmine in an inappropriate manner and stated that nobody had ever touched
her “inappropriately on her private areas.”
DCFS interviewed grandmother, who lived in the father’s home and cared for
Joseph and Emily when father was away. Grandmother told DCFS she believed mother

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was “having Jasmine falsify sexual abuse allegations” so she could get the children back
and obtain financial support. Grandmother also alleged mother had an alcohol problem
and that Joseph and Emily would be “better taken care of by herself and her son.” Father
called DCFS and stated that Jasmine’s allegations were “unfounded” and said she
“‘like[d] to make things up.’”

2. Section 300 petition and detention
On October 26, 2010, DCFS filed a petition alleging Joseph and Emily came
within the jurisdiction of the juvenile court pursuant to section 300, subdivisions (b), (d)
and (j). The petition included an identical allegation under each subdivision alleging that
father sexually abused Jasmine for a period of 12 years; that mother had knowledge of
the abuse and failed to protect Jasmine; that mother had subsequently provided father
access to Emily and Joseph; and that father’s past abuse of Jasmine and mother’s failure
to protect the children placed them at risk of harm. The petition included a second
allegation under subdivision (b) alleging mother was a “current abuser of alcohol which
renders the mother incapable of providing regular care for the children. . . .” DCFS also
filed a detention report in support of the petition summarizing its initial investigation.
DCFS concluded the children were “at high risk if they continue in the care of father and
mother” and recommended the court detain the children.
At the detention hearing, held October 26, 2010, mother and father each entered a
general denial and requested the children be released to them. The children’s counsel
argued they should not be released to their mother because both children had “verif[ied]
the [alcohol-related] allegation in (b)(2).” According to counsel, both children wanted to
“go back to the father” and “adamantly” denied having been “touched” or “abused . . . in
any way.” Counsel requested that if the court was unwilling to release the children to the
father, it should give DCFS discretion to release them to “the paternal grandmother with
the father out of the home.” The juvenile court ordered the children detained and
permitted DCFS to place them with grandmother on the condition that father move out of
the house.

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 B. Jurisdiction and Disposition
1. DCFS’s jurisdiction/disposition report
On November 29, 2010, DCFS filed a “Jurisdiction/Disposition Report”
summarizing additional interviews it had conducted regarding the allegations of sexual
abuse. DCFS reported that, during a second interview with Jasmine, she had been
“consistent with her recollection of the sexual abuse” and “appeared honest[,] . . . sincere
and emotional . . .”
DCFS also conducted additional interviews of Joseph, Emily, mother, father and
grandmother. Joseph maintained that he wanted to remain in California, explaining he
was “passionate about skate boarding” and believed his career would be “over” if he was
forced to return to North Carolina. Emily stated that her mother “treat[ed] her well” and
that she missed her “school and friends in North Carolina.” When asked whether she
wanted to return to North Carolina, Emily said “‘that would be fine,’” adding: “‘if my
dad wants I can stay here to [sic] and visit my mom in the summer . . . . I’m ok here or
with my mom.’”
Mother told DCFS her relationship with father had ended several times “over the
sexual abuse allegations and problems with him not being able to hold a job down.”
Mother admitted she drank one or two beers on her days off, but denied that she ever got
drunk or abused alcohol. Mother stated that she worked twelve-hour nursing shifts and
was regularly subjected to alcohol and drug testing as part of her job.
Mother stated she had allowed Joseph and Emily to visit their father in California
because he had never acted inappropriately with either of them. She also stated that
North Carolina children’s protection services had “investigated [Jasmine’s] allegations
and made an arrangement that father would agree to have [only] supervised contact with
the children during visits.” She further stated that the children’s grandmother had agreed
to monitor the father. DCFS also spoke to father and grandmother; they both reiterated
that they believe mother had encouraged Jasmine to fabricate the sexual abuse allegations
for financial reasons.

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 DCFS contacted North Carolina social worker Karla Joyner, who confirmed that
North Carolina child protection services had sustained an “allegation of neglect toward
father” and developed a “safety plan” that permitted mother to allow the children to visit
father under the supervision of grandmother. Joyner also stated North Carolina had
investigated alcohol abuse allegations against mother and found “no risk o[f] alcohol
abuse.”
Although DCFS concluded mother had made a “poor decision” when she
permitted the children to visit father in California, it recommended the court release the
children to her. In addendums to the jurisdictional report, DCFS confirmed it had “no
concerns regarding the children’s safety if they returned to the care of their mother” and
believed “the counts against mother [were] not sustainable and that those counts should
be dismissed from the petition.”

2. Adjudication hearing on jurisdiction and disposition
In April and May of 2011, the juvenile court held a contested jurisdiction and
dispositional hearing. DCFS stated that it was “recommending striking the mother
entirely from the petition” and only intended to “proceed[] . . . on the allegations of
sexual abuse regarding the father.”
Jasmine testified at the hearing and represented that all of her prior statements to
law enforcement and DCFS had been true. Jasmine provided detailed testimony
describing the nature of the abuse, where it had occurred, when it had occurred, who had
witnessed it and who she had told about it. After Jasmine testified, mother’s counsel
called father to testify. Father, however, announced he had elected to “plead the Fifth
Amendment.”
At closing argument, DCFS recommended the court sustain the allegations against
the father, arguing that Jasmine’s testimony was “credible” and showed “[Joseph and
Emily] [we]re at risk of sexual abuse based upon [father’s] abuse of their adult sibling
when she was a child.” DCFS argued that “mother [should] be stricken from the
petition” because: (1) there was no evidence mother had any past or current drinking

7
problem; and (2) the evidence suggested mother had taken adequate precautions to
protect Emily and Joseph from father by ensuring grandmother would monitor his contact
with them.
Father’s counsel, however, contended Jasmine and mother were “simply not
credible” and that, even if Jasmine’s allegations were true, there was no evidence father
“pose[d] a substantial risk of harm or sexual abuse to his 16-year old son . . .” Counsel
for the children argued Jasmine was credible, but disagreed with DCFS’s
recommendation to “have mother’s failure to protect taken out of the petition.” The
children’s counsel argued mother’s decision to send Emily to California despite
knowledge of father’s past abuse of Jasmine placed Emily at substantial risk of harm.
Counsel asserted, however, that Joseph was “differently situated” because of his age and
sex.
The juvenile court dismissed allegation (b)(2), which related to mother’s alleged
alcohol abuse. The court sustained the remaining allegations with amended language
regarding the allegations against mother stating that she “allowed the children Joseph and
Emily to reside with the paternal grandmother in which she knew or reasonably should
have known that father would have unlimited access to the children despite mother’s
knowledge of the father’s sexual abuse of the sibling.” The court ordered reunification
services for both parents and order the children to remain placed with their paternal
grandmother.

3. Appeal of the jurisdictional and disposition orders
Mother, father and Joseph each filed a timely appeal of the jurisdiction and
dispositional orders. In an unpublished decision (see Ante, fn. 2), this court affirmed the
portion of the juvenile court’s orders pertaining to Emily, concluding there was
substantial evidence that: (1) father sexually abused Jasmine; (2) mother failed to protect
Jasmine from father and then exposed Emily to father; and (3) the parents’ conduct
placed Emily at substantial risk of harm. However, we reversed the portion of the order

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pertaining to Joseph, concluding there was insufficient evidence to show father’s sexual
abuse of Jasmine placed his biological, 16-year-old son at risk of harm.

C. Section 366.21 Hearings
1. Section 366.21, subdivision (e) six-month review hearing
In August of 2011, DCFS filed a progress report stating that Emily had adjusted
well to her placement with grandmother and wanted to remain in Los Angeles because
“none of us drink or smoke here.” Emily told DCFS “[mother] used to drink a lot of
beers a day” and that she was “afraid [mother] can drink again.”
DCFS reported mother had begun attending individual therapy in North Carolina.
Mother’s therapist, James Lauve, informed DCFS she had been “extremely plausible and
punctual in session . . . [and] ha[d] the best interests of the children in mind.” DCFS
concluded that although mother had initiated individual therapy, she had “yet to address
case issues, heighten her awareness, and understand the impact of her failure to take
action [to protect Jasmine or her children from father].” DCFS reported father had failed
to maintain regular contact with the agency and appeared unwilling to comply with his
reunification services. It recommended leaving all prior orders in place and setting the
matter for a review hearing pursuant to section 366.21, subdivision (e). The court agreed
with DCFS’s recommendations and scheduled the hearing for November 1, 2011.
Prior to the hearing, DCFS filed a “Status Review Report” stating that mother was
maintaining regular phone contact with Emily and meeting with therapist Lauve on a
weekly basis. Although grandmother indicated father had regular contact with Emily, he
had not contacted DCFS and had failed to respond to numerous letters regarding his case
plan. DCFS reported Emily appeared to be bonded to her grandmother, exhibited “good
sibling interaction” with her brother and demonstrated “overall good functioning in the
home.” DCFS further reported, however, that Emily had “conveyed some anxiety as to
where she would be living and indicated she wants to remain in the care of the current
caregiver.” Although grandmother did not believe Emily needed to participate in
therapy, DCFS believed she would “benefit from individual therapy to address pertinent

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case issues and current uncertainty as to where [she] may reside.” In its assessment,
DCFS concluded father had failed to demonstrate any intent to participate in reunification
services and that mother had yet to demonstrate full “insight as to the impact of her
failure to protect her children.”
The day before the hearing, DCFS submitted a letter from therapist Lauve
confirming mother had attended weekly therapy sessions for the past several months.
Lauve reported mother was “motivated, insightful and painfully suffering . . . [from her]
separate[ion] from her two . . . children.” According to Lauve, mother “appreciate[d] her
inappropriate and harmful inaction around the issues between her elder daughter . . .
Jasmine” and was frustrated that father still had access to Emily and Joseph. Lauve
further reported mother was “anxious to assume her parental role with Emily” and was
“excited about the prospect of engaging with t[her] children in therapy . . . in North
Carolina . . . to move toward a normalization of their relationship.”
At the hearing, the court ordered continued reunification services for both parents
and scheduled a hearing pursuant to section 366.21, subdivision (f).

2. Section 366.21, subdivision (f) 12-month permanency hearing
DCFS filed a status report for the 12-month permanency hearing that contained the
same factual information as the report it had filed for the prior hearing.3 DCFS’s
recommendations, however, had changed. DCFS asserted that in light of father’s refusal
to participate in his case plan, the court should terminate his reunification services.
DCFS recommended the court continue mother’s reunification services and schedule an
18-month permanency review hearing pursuant to sections 366.21, subdivision (g) and
366.22. The court, however, elected to continue the 12-month permanency hearing and
left all prior orders in place.
In a status report filed in March of 2012, DCFS reported mother was continuing to
attend individual therapy and had committed to attend a sexual abuse program for non-

3
Because of multiple continuances of the six-month review hearing, the 12-month
permanency hearing was held approximately two weeks after that hearing.

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offending parents. DCFS further reported Emily had “consistently maintained” she
wanted to remain in Los Angeles with grandmother, but was “receptive to continued
telephonic contact with . . . mother in North Carolina.” According to DCFS, Emily
appeared “thriving, alert [and] playful” and had agreed to attend individual counseling to
address her anxiety about “where she would be living.” Father was visiting the children
two to three times per week under the supervision of grandmother; mother called the
children every week from North Carolina.
DCFS recommended continued reunification services for mother and termination
of father’s services. The court, however, ordered continued reunification services for
both parents and set a section 366.22 permanency review hearing for April 26, 2012.

D. Section 366.22 Permanency Hearing
1. DCFS status report recommending return of children
On April 26, 2012, DCFS filed a status report for the section 366.22 permanency
hearing stating that Emily did “not oppose” reunifying with mother in North Carolina.
The report indicated that although Emily was “emotionally connected with mother,” she
was concerned she would not be permitted to have any further visits with grandmother.
DCFS’s report was accompanied by a letter from therapist Lauve stating that mother had
“complied with [her] treatment . . . with insight [and] enthusiasm” and demonstrated
“high motivation, good insight and a commitment bordering on the heroic given the
circumstance of the coast to coast relation to her children forced on her.” Lauve further
reported that mother held a “responsible position” at a local hospital and was engaged to
a man who was “eager to be integrated into [mother’s] reunited family unit.” Lauve did
not see any “signs of . . . inappropriate use of alcohol” and recommended the court return
Emily to mother.
Based on Emily’s statements and Lauve’s progress report, DCFS recommended
the court return Emily to mother and order family maintenance services, including
individual and conjoint therapy. At a hearing held in April of 2012, the court ordered

11
DCFS to initiate an “ICPC” investigation on mother’s home in North Carolina4 and
initiate conjoint counseling sessions between mother and Emily. The court scheduled a
section 366.22 permanency hearing for June.
Shortly before the hearing was scheduled to occur, Emily submitted a handwritten
letter to the court stating: “I would like to tell you that I would like to stay here with my
grandma & dad, I like my school here, I get to go to the doctor and the dentist here and I
have food and clothes that fit me. I still love my mom but I would like to stay here in
California with my grandma & dad.” The court continued the section 366.22 hearing to
permit DCFS to investigate Emily’s statements.

2. Additional information submitted prior to the contested hearing

In August of 2012, DCFS filed a progress report from Emily’s therapist, Brooke
McLean, who had participated in four sessions with Emily and grandmother, three
“individual sessions with Emily” and four conjoint sessions with mother and Emily.
McLean had also spoken to father about “the family and Emily’s presenting problems.”
McLean reported that neither grandmother nor father “ever mentioned that [father] had
been confirmed to have been sexually molesting Emily’s older half-sister . . . for
approximately twelve years.” Although grandmother had “whisper[ed] the allegation at
the end of [one] session,” she said she “‘didn’t believe it.’”
McLean reported Emily’s “presenting problems included depressive and anxious
symptoms including irritability, poor coping skills, and . . . exhibited difficulty

4 The “Interstate Compact on the Placement of Children” (ICPC) is a compact
among California and other states that is intended “‘to facilitate the cooperation between
states in the placement and monitoring of dependent children.’ [Citation.]” (In re
John M. (2006) 141 Cal.App.4th 1564, 1573 (John M.).) Pursuant to the ICPC, no child
shall be “sent, brought, or caused to be sent or brought into the receiving state until the
appropriate public authorities in the receiving state [ ] notify the sending agency, in
writing, to the effect that the proposed placement does not appear to be contrary to the
interests of the child.” (Fam. Code, § 7901, art. (3), subd. (d).) Although “ICPC
compliance is not required for an out-of-state placement with a parent, nothing in the
ICPC prevents the use of an ICPC evaluation as a means of gathering information before
placing a child with such a parent.” (John M., supra, 141 Cal.App.4th at p. 1573.)

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expressing her emotions.” According to McLean, Emily had “clearly stated that she did
not wish to return to North Carolina,” but had difficulty explaining why. Emily
expressed concern her mother would “not be present, emotionally or physically, and
worrie[d] that her needs w[ould] not be adequately attended to. . . ” Emily stated that
although “mother’s emotional and physical unavailability” had made her feel like a “lone
wolf” and “unimportant,” she “no longer feels that way living in California.” Emily also
said mother was unable to “effectively cope with the stressors of life” and was afraid
“mother will try to commit suicide again.”
McLean reported that during conjoint sessions with mother, “Emily refuse[d] to
discuss the past or future with her mother, as . . . it ma[de] her feel very uncomfortable.”
McLean observed that mother always “responded appropriately to Emily and asked
questions about her current welfare.” Mother also “demonstrate[d] concern for [Emily’s]
well-being and [was] empathic to Emily’s feelings.” Overall, however, mother and
Emily’s “conversations revolved [only] around both of their activities over the past week
and never touched on the past or the future.”
McLean’s report summarized three areas of concern she had regarding Emily’s
situation. First, McLean expressed concern “that DCFS plans on reunifying Emily
prematurely with her mother in North Carolina, despite Emily’s feeling to the contrary.”
Mclean explained that although “Emily loves her mother, it causes her significant anxiety
to even discuss living in North Carolina. It seems Emily was desperately trying to gain
some stability and reliability in her life, and simply the idea of returning to her mother’s
home may start to shake the very foundation she has begun to piece together in
California.”
Second, McLean found it “very concerning” that neither father nor grandmother
had acknowledged the sustained allegation regarding father’s sexual abuse of Jasmine.
McLean belived this was “especially concerning because [Emily] is currently living with
her paternal grandmother, who seems to choose not to believe the confirmed reports of
abuse.”

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 Third, McLean was concerned with Emily’s inability “to discuss emotionally
laden topics” and “her avoidance to dealing with the stress associated with her
uncomfortable feelings.” McLean concluded this behavior showed Emily lacked
“adequate coping skills” that the child would “need to rely on later in life.” McLean
recommended Emily continue receiving “mental health services to help her process her
past experiences[,] . . . more effectively express her thoughts and feelings” and “develop
coping skills.” McLean also recommended Emily continue to participate in weekly
therapy sessions with mother to “help strengthen their relationship and build a sense of
trust between mother and child. [Prior to reunification,] [i]t is important that Emily begin
to believe that her mother is a reliable caregiver who is able to attend to her needs. . . .”
In September of 2012, DCFS submitted an updated progress report from McLean
indicating she had conducted several additional sessions with Emily and mother.
McLean reported Emily remained “highly anxious” during the conjoint calls, and, at
times, refused to speak to mother. During one call Emily refused to speak because
mother had deactivated Emily’s cell phone. Mother stated she had turned off the phone
because Emily was not responding to her calls. Although Emily claimed she did not hear
the phone, mother suggested she was being dishonest and liked to “tell stories.”
During another call, mother told McLean Emily did not want to return to her care
because “grandmother is available to her 24/7 and lets her do whatever she wants.”
Mother also stated that “the only reason” she was currently “estranged” from Emily was
because they did not live together. After the call, Emily told McLean mother was “‘way
off’ . . . as to the reasons [she] did not want to return to North Carolina.” Emily felt
mother was “not at all concerned with [Emily’s] feelings[] because ‘she is so focused on
her own feelings”’ and expressed “genuine[] concern that her mother will be unable to
properly care for her.” McLean reported that, in some of the sessions, mother had
“expresse[d] negative opinions and feelings about Emily’s behaviors and wishes” and
“expressed anger toward Emily rather than trying to understand Emily’s point of view
and feelings . . .”

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 McLean’s updated progress report reiterated the three concerns she had discussed
in her original report. McLean added, however, that her more recent sessions also raised
concerns regarding mother’s tendency to “externalize[] all blame and responsibility for
[Emily’s] estrangement from her.” According to McLean, mother failed “to see how her
own actions including her own suicide attempt, awareness of the sexual abuse of her
older female child, and neglect of Emily’s emotional and physical needs, have
contributed to Emily’s anxious feelings about returning to North Carolina.” McLean
recommended “six more months for Family Reunification services to allow time for
Emily and [mother] to rebuild their relationship in family therapy.”
In October of 2012, DCFS filed an information informing the court that North
Carolina had still not completed the ICPC on mother. DCFS recommended mother
continue to participate in individual and conjoint therapy “until home study is approved.”
Immediately prior to the contested section 366.22 hearing, however, DCFS filed another
information recommending “that family reunification services for mother and father be
terminated . . . due to concerns and lack of progress in conjoint counseling between
mother and minor Emily.” DCFS further recommended that the court schedule a
permanency plan hearing pursuant to section 366.26.

3. Contested section 366.22 permanency hearing
The contested section 366.22 hearing began in November of 2012 and was not
completed until January of 2013. Brooke McLean, DCFS social worker Sandra Paredes,
Emily and mother each testified.

a. Witness testimony
McLean testified DCFS had initially asked her to serve as Emily’s individual
therapist. As part of the patient intake process, McLean spoke to Emily, grandmother,
father and a DCFS social worker. After McLean had conducted several sessions with
grandmother and Emily, DCFS asked her to conduct conjoint therapy with mother and
Emily. Mclean stated that although she continued to speak individually with Emily

15
before and after the conjoint sessions, she had never spoken to mother alone other than to
discuss scheduling.
McLean acknowledged she had never talked to mother about her alleged suicide
attempt or her past neglect of Emily. McLean also admitted the statements in her
progress reports indicating mother “lacked insight” into how her past conduct had
contributed to Emily’s anxious feelings were predicated solely on information Emily had
provided in private sessions. McLean also testified she could not recall whether
grandmother or Emily had first informed her that mother had allegedly tried to commit
suicide.
McLean testified that although Emily was currently displaying signs of stress,
irritability and anxiety, she believed sending Emily to live with mother in North Carolina
“would exacerbate her current symptoms[,] . . . have a poor effect on her ability to cope
with these symptoms” and cause “additional harm to her emotional well-being.” When
asked what would have to change before she would recommend reunification with
mother, Mclean stated Emily and mother would have to show “improve[ed]
communication skills” and be able to “talk about . . . any past trauma, any issues that
she’s had, anything that’s causing her anxiety in relation to mother.” According to
McLean, these discussions would “help facilitate and rebuild their relationship and also
allow for some corrective experiences between the two of them to begin to build more
trust in the relationship.” She believed at least six more months of therapy would be
required to accomplish these goals, but was uncertain “that would be enough time.”
DCFS social worker Sandra Paredes testified that, in April of 2012, it appeared
clear to her that Emily would not have objected to living with mother if mother lived in
California. Paredes further stated, however, that during the “past couple of months,
ther[e had] been a transition” in Emily regarding her willingness to live with mother.
Paredes indicated that although Emily had never explained “specifically why” she no
longer wanted to live with mother, the child appeared to be “attached” to grandmother
and her brother. According to Paredes, Emily became “fidgety” when discussing why
she did not want to live with mother and would not “elaborate what it was like living [in

16
North Carolina] with mother [or] what the family dynamic was while living [there].”
Emily did, however, express “two instances of mother’s behavior that would cause her
some concern”: mother’s past use of alcohol and her suicide attempt. Paredes stated
DCFS was unsure whether Emily had actually witnessed these events, or merely heard
about them from other people.
Paredes also testified DCFS was concerned “some of the anxiety might be coming
from [grandmother]” and that grandmother might be “coach[ing]” Emily. According to
Paredes, although grandmother had made great efforts to meet Emily’s needs, she
frequently “[conveyed] very confusing messages . . to Emily” that had “played a big role”
in this case. Paredes explained that grandmother “tend[ed] to advocate in favor of father”
and “does not believe that [father’s sexual abuse of Jasmine] actually happened.”
Paredes believed this might “be very confusing for Emily.”
Paredes stated that although mother had complied with her case plan, DCFS
elected to recommend termination of her reunification services based “mainly” on
“Emily’s shift . . . in terms of where she’d like to live” and “[McLean’s]
recommendation.” Paredes also stated she believed Emily wanted to stay connected with
her mother, would benefit from continued therapy and might be able to reunite with
mother at some point in the future.
Emily, who testified in chambers, stated that mother had not provided her with
enough food when she lived in North Carolina. When Emily arrived in California,
grandmother had told her she looked “skinny[,] . . . scrawny” and malnourished. When
Emily was asked why she had trouble speaking to mother about living in North Carolina,
Emily stated “[m]y mind shuts down because I get really emotional about it – and I don’t
like to talk about it.” She further explained that she became emotional “[b]ecause I one
day witnessed my mom trying to commit suicide.” Emily stated the incident occurred
when she was five years old while living with mother and her three brothers in North
Carolina. Emily said she saw mother retrieve a knife from the kitchen and go into the
bathroom, which had a sheet draped over the doorway. According to Emily, mother
appeared to hold one arm out and then slide the knife across her wrist. Although the

17
doorway to the bathroom was covered with a sheet, Emily was “pretty sure” mother was
“trying to slit her wrist.” She then told her brother David, who sent Emily to wait in the
living room. Emily later saw Joseph crying and he told her “[m]om tried to commit
suicide.” The following summer, Emily told grandmother and father about the incident.
Emily testified there was a time when she was “open to going home to . . .
mother.” When asked why she had changed her mind, Emily stated: ““Because I . . . was
older, and I realized more about what happened that day . . . and what suicide was and
everything.” Emily explained she did not want to return to North Carolina because she
“fear[ed] that mother may try to kill herself again.” Later in the hearing, Emily stated she
also did not want to live in North Carolina because mother would not take her to the
dentist or doctor and “would drink a lot. . . . and then she would just kind of shut off, not
pay attention to me or anybody else.”
Emily also stated part of the reason she became anxious when discussing living
with her mother was because she felt “caught in the middle” of her mother and
grandmother and “torn apart between . . . two worlds.” Emily stated she did not believe
things would be “that bad” if she lived with mom, but was “comfortable” in California.
Emily also believed mother would “neglect[] [her] at times” and would feel more
comfortable if mother would stop “smoking and drinking.”
Mother testified over the phone from North Carolina. Mother stated she believed
grandmother and father had “coached [Emily] to say the things that she has been saying
in order for her to remain out there.” Mother said she had noticed a “severe difference”
in her relationship with Emily since the child was placed with grandmother. According
to mother, Emily had become “distant” and did “not want to talk about anything like she
used to talk about before.” Mother denied ever having tried to commit suicide and stated
she had never been hospitalized for any mental condition. Mother also stated she had
never neglected Emily and had always provided the child with food and healthcare.
Mother believed Emily’s therapist had been “biased” and based all of her
“statements and assumptions” on information obtained from father and grandmother. She
stated that McLean had never asked her about the alleged suicide attempt or the “family

18
dynamics” between her and the “paternal relatives.” Mother stated she would “never stop
fighting” for Emily and expressed frustration that she had been “accused of failing to
protect [her child], and yet she is being left with the ones I failed to protect her from.”
Mother’s counsel attempted to call her son David to testify “in regards to
[mother’s] alleged suicide attempt.” Emily’s counsel objected, arguing that the testimony
would not be relevant because “the issue is Emily’s fear and her emotional turmoil, not
the veracity of mother’s having attempted suicide.” The juvenile court agreed, stating “I
don’t believe it’s . . . David that’s at issue. It’s how Emily perceives what occurred [¶]. . .
[¶] I don’t believe David is going to add anything to her perception or her feelings in this
case. And everybody had an ample opportunity to cross-examine [Emily] thoroughly
with regards to that. . . .”
After the witnesses had testified, mother’s counsel requested the court order an
expert evaluation of Emily pursuant to Evidence Code section 730.5 Emily’s counsel
joined the request, which DCFS did not oppose. The court agreed to appoint Alfred
Crespo to conduct an evaluation and continued the section 366.22 hearing.

b. Summary of Crespo’s section 730 evaluation
In January of 2013, Crespo submitted his evaluation, which included a summary
of his interviews with family members. Crespo reported that although Emily had
described mother as “funny and energetic,” she did not want to live with mother because
mother “drinks and smokes.” Emily said mother “spaces out” when she drank and did
“not notice many things.” Emily also stated she did not believe Jasmine had been abused
by father, but later added that she “might” believe the allegations. Emily denied father
and grandmother had influenced her views and stated that she wanted the court to “stop

5 Evidence Code section 730 states, in relevant part:
“When it appears to the court . . . that expert evidence is or may be required by the court
or by any party to the action, the court on its own motion or on motion of any party may
appoint one or more experts to investigate, to render a report . . . and to testify as an
expert at the trial of the action relative to the fact or matter as to which the expert
evidence is or may be required.”

19
and listen to what I have to say and that is that I want to stay [in California] no matter
what . . .”
Emily agreed to meet with mother and tell her why she wanted to stay in
California. However, when Crespo brought Emily into a room with mother, Emily
“hugged her mother, told her she loved her, and then paused.” When Crespo asked Emily
if there was anything she wanted to tell her mother, she “again walked up to her mother
and hugged her.” Crespo asked Emily if she had “changed her mind,” and Emily nodded.
Crespo reported grandmother believed mother had told Jasmine to falsify the
allegations of sexual abuse against father. Grandmother also stated Emily should “stay
put” in California because mother “has always had a drinking problem” and refused to
take Emily to the dentist.
Father told Crespo his relationship with mother had ended because of her drinking
and smoking. Father stated he was currently homeless and unemployed, but generally
stayed with friends who lived near grandmother’s house. Father further stated he
believed Emily’s “best interest is to stay with me and mom,” explaining that he visited
Emily on a daily basis and made sure she did her school work. Father “vehemently
denied” the sexual abuse allegations, stating that mother had fabricated the story “to get
me to send the children back against their will.” In response to a written question
inquiring what father wanted to tell the court, he wrote: “My kids have Never been in
any Danger Whatever. The only Reasons We Are here in this Mess is Because the
Mother of my kids is sick in the head . . . I believe she has extreme resentment toward me
because my kids wanted to live with me instead of with her.”
Crespo also interviewed mother, who recounted how Jasmine had informed her of
father’s sexual abuse. Mother said that grandmother and father had “alienated Emily
from her” by telling the child her mother was “doing this for money.” Mother further
stated she believed the therapy with Emily had been ineffective because “we are not
talking face to face” and were living on opposite sides of the country.
In his summary of findings, Crespo stated that father and grandmother
“respectively den[y] having confessed or . . . believing Jasmine’s allegations [of sexual

20
abuse]. Their general orientation vis-à-vis the sexual allegations . . . appear to mainly be
that these were fabricated by the mother in order to retain custody of Emily for financial
gain.” Crespo also believed Emily had “adopted as her own [grandmother’s views]
regarding the mother’s alcohol abuse and the alleged sexual abuse of Jasmine.” Crespo
explained “that the efforts made to improve the daughter-mother relationship has [sic]
been undermined by the influence [of] the grandmother’s negative view of the mother.”
He added, however, that it was unclear whether this was the result of “conscious efforts
by grandmother.”
Crespo concluded that “given [Emily] has been continuously living with her
grandmother . . . for several years, and that her contacts with her mother have been
limited to telephonic contact during this period of time, Emily’s reluctance to be reunited
with her mother, in North Carolina, away from her grandmother, appears to be
understandable.” Crespo recommended that reunification efforts “should be intensified
with the eventual goal being to reunify [Emily] with her mother.” Crespo also
recommended the court order Emily to take an extended trip to North Carolina and
require mother to schedule conjoint counseling sessions for her and the child during the
visit. Crespo also thought it was important that Emily be informed the court had found
the sexual abuse allegations against father to be true, which was “obviously in conflict
with what Emily has been lead to believe [by grandmother and father].”

c. Closing arguments and decision
After receiving Crespo’s section 730 evaluation report, the court heard closing
arguments. Mother’s counsel argued that Emily’s preference as to where she wanted
to live were not controlling. Counsel also asserted the mere fact Emily had bonded with
grandmother was not a sufficient basis to deny reunion with mother. Counsel contended
that leaving Emily in the care of grandmother presented a greater risk to the child’s well-
being because: (1) grandmother did not believe the sexual abuse allegations that had been
sustained by the court; and (2) father visited Emily at grandmother’s house almost every
day.

21
 Mother’s counsel argued that if the court was not willing to return Emily to
mother, it should continue the section 366.22 hearing pursuant to section 352 and “follow
Crespo’s recommendation . . . [to] continue reunification services for the mother so that
minor and mother can continue conjoint therapy and to also allow minor to have an
extended visit with mother in North Carolina during spring break.” Counsel explained
that continuing the hearing would “not be detrimental to the minor as the continuance
would maintain the status quo and provide Emily an opportunity to transition from
Grandma’s home back to mothers . . .”
Emily’s counsel argued the child’s statements about where she wanted to live were
“more than just a preference” and appeared to be “rooted in fears and anxieties” about
living with mother. Counsel argued that “[w]hether or not grandmother or father have
poisoned the well . . . and have influenced Emily is not relevant . . .Whether Emily’s
fears and anxieties are based on true factual situations or come from some irrational
place, her fears are still real they’re still present . . . and continue to suggest that Emily is
in need of therapy and return would be detrimental.”
DCFS argued McLean’s testimony demonstrated that forcing Emily to return to
her mother at this time would place the child at substantial risk of emotional harm.
Although DCFS asserted the Welfare and Institutions Code prohibited the court from
extending mother’s reunification services any further, it recommended the court bypass
the section 366.26 hearing and “order Emily into a long-term foster care.” DCFS
explained that, “[b]y doing so, the court can continue services to Emily, if the court
believes that counseling is necessary[,] as the department strongly believes . . . , the court
can order it for the benefit of Emily. It’s quite clear that everyone’s goal in this case is to
. . . if possible return Emily to the care of her mother. But that is a proposition which . . .
is going to take a significant period of time.”
The court adopted DCFS’s recommendation and ordered Emily to be placed in
long-term foster care, with grandmother as caretaker. The court explained that, based on
Emily and McLean’s testimony, it was “very apparent . . . there is detriment to return at
this time.” The court explained that Emily had “expressed feelings of emotional

22
distraught” about being returned to mother and that both McLean and Crespo believed
“more therapy [wa]s needed as to Emily before return can occur. . .” The court added:
“Despite the possible influence by the grandparent, Emily has articulated her feelings,
emotional feelings, with regards to her return, and I think that is what it is. And the facts
indicate that very clearly from both her testimony and the therapist’s testimony in this
case. So the court is finding that termination of reunification services is in the best
interests of the child at this time . . .”
The court further ordered, however, that based on the “totality” of the evidence, it
was in the “best interests of the child to set this for a planned permanent living
arrangement for Emily and to have continuing services in this case to see if at one point,
possibly, that we can possible reunify her with the mother having given the opportunity
to Emily to have further services in order to be able to cope with some of her emotional
issues . . .”
The court ordered Emily to participate in “[c]onjoint counseling” with mother and
further ordered DCFS to consider “gradual visits [with mother] to see if we could
facilitate that at the appropriate time.” The court then inquired whether any of the parties
opposed the court’s decision to select long-term foster care as the permanent plan, rather
than scheduling a section 366.26 hearing. All parties submitted on the issue.
The court set the matter for a progress hearing and also scheduled a six-month review of
Emily’s permanent plan pursuant to section 366.3. Mother filed a timely appeal of the
court’s order.6

6 Although orders that are contemporaneous to an order setting a section 366.26
hearing (including contemporaneous orders terminating reunification services) are not
appealable other than by extraordinary writ (In re Ricky H. (1992) 10 Cal.App.4th 552
561-562; § 366.26, subd. (l)), “orders . . . that bypass the section 366.26 hearing and
select long-term foster care as the minor’s permanent plan . . . are final and appealable
under section 395 as orders subsequent to a judgment of dependency because nothing
further is required to establish the permanent plan.” (In re Dustin R. (1994) 54
Cal.App.4th 1131, 1138 (Dustin R.).)

23
 DISCUSSION

Mother raises three arguments on appeal. First, she contends there was
insufficient evidence to support the juvenile court’s finding that returning Emily to her
care would create a substantial risk of detriment to the child’s emotional well-being.
Second, she asserts the juvenile court erred in refusing to allow her son David to testify at
the section 366.22 hearing. Third she argues the court abused its discretion when it
denied her oral request for a continuance of the section 366.22 hearing to permit further
reunification services.

A. Substantial Evidence Supports the Court’s Finding that Emily’s Return to
Mother Would Create a Substantial Risk of Emotional Detriment

We review the court’s finding that returning Emily to mother’s care would create a
risk of detriment to the child’s emotional well-being for substantial evidence. (Angela S.
v. Superior Court (1995) 36 Cal.App.4th 758, 763.) “‘In juvenile cases, as in other areas
of the law, the power of an appellate court asked to assess the sufficiency of the evidence
begins and ends with a determination as to whether or not there is any substantial
evidence, whether or not contradicted, which will support the conclusion of the trier of
fact. All conflicts must be resolved in favor of the respondent and all legitimate
inferences indulged in to uphold the verdict, if possible.’ [Citation.]” (In re Rocco M.
(1991) 1 Cal.App.4th 814, 820.)
Under section 366.22, subdivision (a), the juvenile court is required to return the
child to the custody of the parent at the 18-month permanency hearing unless it
determines, by a preponderance of the evidence, that return of the child would “create a
substantial risk of detriment to the child’s physical or emotional well-being.” “[T]he
decision whether to return the child to parental custody depends on the effect that action
would have on the physical or emotional well-being of the child.” (In re Joseph B.
(1996) 42 Cal.App.4th 890, 899 (Joseph B.).) “The risk of detriment must be substantial,
such that returning a child to parental custody represents some danger to the child’s

24
physical or emotional well-being.” (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1400
(Yvonne W.).)
In assessing whether returning the child to his or her parent would create a risk of
detriment, the juvenile court may consider, among other things: “compliance with the
reunification plan” (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 704
(Constance K.)); the child’s expressions and feelings about returning to the parent (In re
Alvin R. (2003) 108 Cal.App.4th 962, 974 (Alvin R.)); “properly supported psychological
evaluations which indicate return to a parent would be detrimental to a minor [citations]”
(Constance K., supra, 61 Cal.App.4th at p. 705); “the opinion of the [investigating] social
worker” (Alvin R., supra, 108 Cal.App.4th at p. 947; § 366.22, subd. (a) [the court “shall
review and consider the social worker’s report and recommendations”]; and “limited
awareness by a parent of the emotional and physical needs of a child.” (Constance K.,
supra, 61 Cal.App.4th at p. 705.)
In this case, several categories of evidence support the juvenile court’s risk of
detriment finding. First, Emily repeatedly told DCFS, McLean, Crespo and the juvenile
court she did not want to return to mother’s custody. McLean’s progress reports
indicated Emily had stated she was worried mother would “not be present, emotionally or
physically” and would not be able to meet her needs. Emily made similar statements to
DCFS and Crespo, emphasizing that she wanted the court to “‘stop and listen to what I
have to say and that is that I want to stay [in California].” Emily also submitted a
handwritten letter to the court explaining that she wanted to stay in California and did not
want to be returned to her mother. She provided similar testimony at the section 366.22
hearing, repeatedly stating she did not want to return to her mother’s care. After
observing Emily’s testimony, the juvenile court concluded she had clearly expressed
“feelings of emotional distraught” at the prospect of being returned to mother. We must
accept “the juvenile court’s assessment of [the child’s] demeanor . . . and the reasonable
inferences it has drawn as a result.” (Alvin R., supra, 108 Cal.App.4th at p. 974
[affirming finding of emotional detriment based, in part, on court’s description of child’s
“demeanor” at contested hearing].)

25
 The court’s finding was also supported by the reports and testimony of therapist
McLean and social worker Paredes. Both of McLean’s progress reports warned that
“reunifying Emily prematurely with her mother in North Carolina” would “shake the very
foundation she has begun to piece together in California.” McLean’s reports also stated
Emily currently lacked “adequate coping skills” to handle the stress and anxiety
associated with a return to her mother. At the section 366.22 hearing, McLean testified
that returning Emily to mother without additional therapy would “exacerbate her current”
anxiety and cause “harm to her emotional well-being.” DCFS social worker Paredes
similarly recommended that, based on Emily’s expressed desire to stay in California and
the conclusions set forth in McLean’s reports, the court should leave Emily in her current
placement with grandmother.
DCFS also presented evidence suggesting mother had demonstrated limited
awareness regarding the emotional needs of Emily. In McLean’s second progress report,
she expressed concern that mother “externalize[d] all blame and responsibility for
[Emily’s] estrangement from her” and failed to consider whether her own actions had
contributed to the situation. McLean also noted that mother had “expressed anger toward
Emily rather than trying to understand Emily’s point of view and feelings . . . .”
Considered collectively, the testimony of Emily, McLean and Paredes, and the
information in the reports of McLean and DCFS, provide substantial evidence supporting
the juvenile court’s finding that returning Emily to mother at this time would create a
substantial risk of detriment to the child’s emotional well-being.
Mother disagrees, arguing there are three reasons we should reverse the juvenile
court’s finding. First, she contends the record shows she has successfully participated in
her case plan and “addressed the presenting problems in the case, i.e., her failure to
protect Emily from the risk Father posed based on his past sexual abuse of Jasmine.”
However, “[t]he question whether to return a dependent child to parental custody is not
governed solely by whether the parent has corrected the problem that required court
intervention; rather the court must consider the effect such return would have on the
child.” (Joseph B., supra, 42 Cal.App.4th at p. 894; see also Jennifer A. v. Superior

26
Court (2004) 117 Cal.App.4th 1322, 1344 (Jennifer A).) As explained by one court,
“[c]ompliance with the reunification plan is certainly a pertinent consideration at the
section 366.22 hearing; however, it is not the sole concern before the dependency court
judge.” (Constance K., supra, 61 Cal.App.4th at p. 704.) Where, as here, the record
contains substantial evidence supporting a juvenile court’s risk of detriment finding, we
cannot reverse the finding based solely on a parent’s compliance with his or her case
plan.7
Second, mother contends that although the record contains evidence suggesting
Emily might suffer “some type of detriment” if returned to her care, there is no evidence
demonstrating Emily would suffer the sort of “serious emotional harm” that is necessary
to support continued placement. In support, mother notes that neither McLean nor
Crespo identified any specific form of “serious mental health problem” or “significant
psychopathology” that might occur if Emily were returned to mother. Mother, however,
has not identified any case law suggesting that a juvenile court’s finding of risk of
emotional detriment must be supported by evidence showing the child may develop
serious mental health problems or a “significant psychopathology.” Mother’s argument
also finds no support in the text of section 366.22, which states the court may order

7 Several cases have recognized that if the juvenile court finds a risk of detriment
based on problems or facts that arose during the reunification period, and that have no
relation to the original basis for dependency, the parent may properly request additional
reunification services addressing those issues: “We . . . have rules in place to address the
situation where the juvenile court finds it detrimental to return the minors to the home
despite the parents’ achieving the [reunification] plan’ s objectives. In [that case] . . . the
reunification plan would probably not be reasonable and the parents could mount a
challenge on that basis.” (See Dustin R., supra, 54 Cal.App.4th at p. 1143; Jennifer A.,
supra, 117 Cal.App.4th at pp. 1344-1345 [“[A] . . . problem detected after initial
detention might be a reason for denying return of a dependent child to the parents’
custody. The question in that situation would be whether reasonable reunification
services relating to the . . . [problem detected after the initial detention] have been
offered”].) Here, however, mother did not argue the reunification services DCFS
provided were unreasonable or inadequate to address the reasons for Emily’s continued
placement. Instead, she argued only that DCFS failed to show returning Emily to her
care would create a substantial risk of detriment to the child’s emotional well-being.

27
continued placement of the child if the evidence shows return to the parent will create
“substantial risk of detriment” to the child’s “emotional well-being.” This language gives
the juvenile court “broad discretion to evaluate the . . . the child’s . . . emotional well-
being. . . . [A]ll that is required is a finding [that placement with the parent] would impair
the emotional security of a child.” (In re C.C. (2009) 172 Cal.App.4th 1481, 1490.)
Mother’s contention the evidence only showed Emily was at risk of minor distress,
rather than significant emotional harm, is essentially a challenge to the manner in
which the juvenile court interpreted the evidence and the inferences it drew from that
evidence. However, under the substantial evidence standard of review, we are not
permitted to “re-weigh the evidence or determine the credibility of the witnesses.” (In re
Roberto C. (2012) 209 Cal.App.4th 1241, 1255.) “‘All conflicts must be resolved in
favor of the respondent and all legitimate inferences indulged in to uphold the decision, if
possible.’ [Citation.]” (In re N.M. (2009) 174 Cal.App.4th 328, 335.)
Finally, mother contends that three prior decisions–Yvonne W., supra, 165
Cal.App.4th 1394, In re E.D. (2013) 217 Cal.App.4th 960 (E.D.) and David B. v.
Superior Court (2004) 123 Cal.App.4th 768 (David B.)–“illustrate the defect in the
court’s ruling.” Although each of these decisions reversed a risk of detriment finding,
they are all factually distinguishable from the present matter.
In Yvonne W. the court ruled that a child’s “fear, anxiety and unhappiness about
living in the shelter” where her mother resided was, standing alone, insufficient to
support a finding of risk of emotional detriment. (Yvonne W., supra, 165 Cal.App.4th at
p. 1401.) The court explained that “[a] child’s dislike of a parent’s living arrangement,
without more, does not constitute a substantial risk of detriment within the meaning of
section 366.22, subdivision (a).” (Ibid.) In reaching its ruling, the court emphasized
DCFS had presented no evidence the “conditions at the shelter pose[d] a risk of harm” to
the child. (Id. at p. 1402.) In this case, the court’s ruling was not based on Emily’s
objections to living in the state of North Carolina or in the particular residence where
mother lived. Rather, it was based on (among other things) the feelings and emotions

28
Emily displayed at the section 366.22 hearing and McLean’s opinion that returning Emily
to mother would create a risk to her emotional well-being.
In E.D., supra, 217 Cal.App.4th 960, the court reversed the juvenile court’s risk of
detriment finding because it had “failed to cite any evidence that returning the minor to
father’s custody would create a ‘substantial risk of detriment’ to the minor.” (Id. at
p. 966 [emphasis in the original].) The court noted the record showed the child had
“consistently said he wanted to live with father” (id. at p. 964) and that DCFS “supported
the minor’s return to the parent.” (Id. at p. 966.) In contrast, the juvenile court in this
case articulated exactly which evidence it had relied on in making its findings.
Moreover, unlike in E.D., Emily repeatedly stated she did not want to be placed with
mother and DCFS did not support the child’s return to mother.
In David B., supra,123 Cal.App.4th 768, the court reversed a risk of detriment
finding that was based entirely on the opinions and recommendations of the child
services agency. The court ruled it was “compelled to reverse the order” because the
record “clearly relflect[ed]” that the juvenile court had “deferred to [the social services]
‘discretion’” when assessing the risk of harm to the child. (Id. at p. 796.) The court
explained that, under section 366.22, subdivision (a), the juvenile court could “not
presume that the [agency’s] judgments about the propriety of returning children to their
parents’ custody [we]re correct”; rather, the court had a duty to “independently” evaluate
that judgment “in accordance with the proper standards of proof.” (Id. at p. 797.) In this
case, there is no suggestion in the record that the juvenile court simply deferred to
DCFS’s placement recommendation. Indeed, when explaining the basis for its ruling, the
court did not even refer to DCFS’s evaluation. Instead, it focused on information and
testimony that had been supplied by Emily and McLean.

B. The Juvenile Court Did Not Abuse its Discretion By Excluding the
Testimony of Mother’s Adult Son David

Mother argues the juvenile court committed evidentiary error when it refused to
permit her adult son David to provide testimony related to her alleged suicide attempt.

29
Mother attempted to call David to testify after Emily provided statements indicating one
of the reasons she did not want to live with mother was because of concerns about
mother’s previous suicide attempt. Emily recounted that, when she was five years old,
she was “pretty sure” she had witnessed mother try to cut her wrists with a knife. Mother
argued David, who was present during the incident Emily had described, would provide
testimony clarifying mother had not actually attempted to commit suicide. The juvenile
court excluded the evidence pursuant to Evidence Code section 352, explaining that
whether mother had actually attempted suicide and David’s observations of the event had
little relevance to Emily’s “perceptions and feelings” about returning to mother. The
court further noted that “everybody had an ample opportunity to cross-examine [Emily]
thoroughly” about the alleged suicide attempt and her perceptions of the event.
Evidence Code section 352 states, in relevant part: “The court in its discretion
may exclude evidence if its probative value is substantially outweighed by the probability
that its admission will (a) necessitate undue consumption of time or (b) create substantial
danger of undue prejudice, of confusing the issues, or of misleading the jury.” Section
352 provides the trial court “‘broad discretion in assessing whether the probative value of
particular evidence is outweighed by concerns of undue prejudice, confusion or
consumption of time. [Citation.] Where, as here, a discretionary power is statutorily
vested in the trial court, its exercise of that discretion “must not be disturbed on appeal
except on a showing that the court exercised its discretion in an arbitrary, capricious or
patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]”’
[Citation.]” (People v. Williams (2013) 58 Cal.4th 197, 270-271 (Williams).)
Mother does not dispute that whether she actually tried to commit suicide was of
minimal probative value in assessing the impact that returning Emily to mother’s care
would have on the child’s emotional well-being. Mother argues, however, that the court
should have still permitted David’s testimony because “the nature of Emily’s feelings and
perception about mother could not be properly measured . . . without affording mother a
meaningful opportunity to test Emily’s credibility about the underlying family history.”
Mother appears to assert David’s testimony would have cast doubt on Emily’s overall

30
credibility, thereby raising questions as to whether Emily was truthfully representing how
she felt about being returned to mother’s custody.
Mother overlooks that the court did in fact permit mother to “test Emily’s
credibility” about the alleged suicide attempt. At the section 366.22 hearing, all of the
parties were allowed to question Emily about what she believed she had witnessed on the
day in question. Moreover, mother was permitted to provide her own testimony as to
what occurred that day. Mother denied that she had ever attempted suicide and further
denied ever having been hospitalized for any mental condition.
It is also apparent that David’s proposed testimony would have provided minimal
probative value in assessing whether Emily was being truthful in her testimony as to what
she believed she saw her mother do. Emily testified that when she was five years old
(which was seven years before the hearing), she saw mother carry a knife into the
bathroom and was “pretty sure” mother had tried to cut her wrists. Although David’s
testimony might have cast doubt on whether Emily correctly perceived the nature of
mother’s conduct, it would have provided little insight into whether Emily actually
believed she had seen mother try to commit suicide. Mother has never alleged David has
any particular knowledge as to what Emily believes she saw.
Finally, even if we assume David’s testimony might have established Emily
fabricated the story about mother’s attempted suicide, mother has failed to explain why
that would undermine Emily’s testimony regarding her feelings about being returned to
mother’s care. Indeed, evidence proving Emily was willing to fabricate testimony to
avoid placement with mother would only seem to highlight her desire not to be returned
to mother’s care. We find no abuse of discretion in the court’s conclusion that testimony
tending to show Emily either misperceived the nature of mother’s conduct or fabricated
her testimony about the event in question was of minimal probative value in determining
what effect returning her to mother’s custody would have on her current emotional well-
being.
Mother also argues David’s testimony would have been probative of whether
Emily “actually witnessed the event, or whether she had merely been told to believe these

31
things by Grandmother.” Mother appears to contend David’s testimony that mother did
not attempt suicide would have bolstered her claim that all of Emily’s testimony was the
result of grandmother’s improper influence. The juvenile court did not act arbitrarily in
concluding David’s testimony regarding the alleged suicide attempt would provide
minimal probative value on the question of grandmother’s influence over Emily. Social
worker Paredes, McLean and Emily all provided testimony directly addressing whether
grandmother had influenced Emily’s statements and testimony. In contrast, David’s
proposed testimony was minimally relevant to that issue. At most, David’s testimony
might have supported an inference that because mother did not actually attempt to
commit suicide, Emily’s belief that she had witnessed such an event was a product of
grandmother’s influence. Given the substantial amount of testimony the court heard on
the issue of grandmother’s influence, and the minimal probative value David’s testimony
would have added, there is no basis to conclude the trial court abused its discretion in
excluding it.
Even if we were to find the juvenile court abused its discretion in excluding
David’s testimony, the record shows the error would have been harmless. To obtain
reversal of the juvenile court’s dependency order based on the evidentiary error alleged
here, mother would have to demonstrate a reasonable probability that she would have
obtained a more favorable result in the absence of the error. (See In re A.M. (2008) 164
Cal.App.4th 914, 928 [Watson harmless error test applies in juvenile dependency matters
where error does not implicate federal Constitutional right]; People v. Marks (2003) 31
Cal.4th 197, 226-227 [“[T]he application of ordinary rules of evidence like Evidence
Code section 352 does not implicate the federal Constitution, and thus we review
allegations of error under the ‘reasonable probability’ standard of Watson . . . ”].)
Mother has not shown there is any probability the juvenile court would have
returned Emily to her care if David had been permitted to testify that mother did not
actually attempt to commit suicide. In reaching its ruling, the court did not place any
reliance on Emily’s testimony that she believed she had seen mother attempt to commit
suicide when she was five years old. The court relied primarily on the feelings and

32
emotions Emily expressed when discussing whether she wanted to be returned to mother.
The court also relied on McLean’s opinions as to what effect returning Emily to mother
would have on the child’s emotional well-being. McLean’s opinions, in turn, were
predicated almost entirely on her observations of Emily’s demeanor when the child was
forced to discuss whether she wanted to live with mother.8

C. The Juvenile Court Did Not Abuse its Discretion in Denying Mother’s
Motion to Continue the Section 366.22 Hearing

Mother argues the juvenile court abused its discretion when it denied her motion
to continue the section 366.22 permanency hearing pursuant to Welfare and Institutions
Code section 352. Mother contends the court was required to delay the hearing and offer
her additional reunification services because Crespo and McLean both indicated Emily
might be able to reunify with mother after undergoing additional therapy. We review the
juvenile court’s denial of mother’s motion for a continuance under the abuse of discretion
standard. (In re Elijah V. (2005) 127 Cal.App.4th 576, 585 [“The court’s denial of a
request for a continuance will not be overturned on appeal absent an abuse of
discretion.”].)

1. Summary of applicable law
Under the statutory framework set forth in the Welfare and Institutions Code,
“[f]amily preservation . . . is the first priority when child dependency proceedings are
commenced.” (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1798 (Elizabeth R.).) To
achieve the goal of preserving the family, a parent is generally “entitled to 12 months of
reunification services when the child is at least three years of age on the date of removal
from parental custody. [citations].” (In re Mark L. (2001) 94 Cal.App.4th 573, 584-585;
see also §§ 361.5, subd. (a)(1)(A); 366.21, subd. (f).) If the parent has not successfully

8 Our finding that the court did not err in excluding David’s testimony pursuant to
Evidence Code section 352 forecloses mother’s contention that the exclusion violated her
due process rights. (See People v. Riccardi (2012) 54 Cal.4th 758, 809 [“The routine and
proper application of state evidentiary law does not impinge on a defendant’s due process
rights”].)

33
reunified with his or her child by the 12-month permanency hearing, the court may
extend services for an additional six month period “if it finds . . . there is a substantial
probability . . . the child will be returned to the physical custody of his or her parent . . .
within the extended period of time . . .” (§ 366.21, subd. (g).)
However, at “the 18-month review stage . . . ., further services are ordinarily not
an option which the court may consider. [Citations].” (Carolyn R. v. Superior Court
(1995) 41 Cal.App.4th 159, 167.) “The statutory language is clear and mandatory. If the
minor is not returned to the parent [at the section 366.22 18-month permanency hearing],
‘the court shall order . . . termination of reunification services.’ [Citation.]” (Mark N. v.
Superior Court (1998) 60 Cal.App.4th 996, 1017, fn. 10 [citing and quoting § 366.22,
subd. (a), italics added]; see also § 361.5, subd. (a)(3) [“court-ordered services may be
extended up to a maximum time period not to exceed 18 months after the date the child
was originally removed from physical custody”].) This statutorily-imposed “cutoff date”
reflects the Legislature’s determination that, after 18 months of unsuccessful
reunification services, the “child’s need for stability and security . . . becomes
paramount.” (Elizabeth R., supra, 35 Cal.App.4th at p. 1787; Andrea L. v. Superior
Court (1998) 64 Cal.App.4th 1377, 1388 (Andrea L.) [By placing an 18-month limit on
reunification services, “[t]he Legislature has recognized there must be a limitation on the
length of time a child has to wait for a parent to become adequate in order to prevent
children from spending their lives in the uncertainty of foster care”].)
Welfare and Institutions Code “[s]ection 352 provides an emergency escape
valve” (Elizabeth R., supra, 35 Cal.App.4th at p. 1798) that permits the juvenile court “to
extend family reunification services beyond the statutory limit in a special needs case.”
(Andrea L., supra, 64 Cal.App.4th at p. 1388.) Section 352 states, in relevant, part:
“Upon request of counsel . . . the court may continue any hearing under this chapter
beyond the time limit within which the hearing is otherwise required to be held, provided
that no continuance shall be granted that is contrary to the interest of the minor. . . . [¶]
Continuances shall be granted only upon a showing of good cause and only for that

34
period of time shown to be necessary by the evidence presented at the hearing on the
motion for the continuance. . . .”
Courts have utilized section 352 to extend reunification services beyond the 18-
month stage in “extraordinary” cases where “the services offered [were] . . . defective in
some way” (Renee J. v. Superior Court (2000) 96 Cal.App.4th 1450, 1465) or where an
“external factor . . . prevented the parent from participating in the case plan.” (Andrea L.,
supra, 64 Cal.App.4th at p. 1389.) Generally, where “extraordinary special needs are not
at issue, . . . the juvenile court’s extension of services beyond 18-months [is] an abuse of
discretion and in excess of its jurisdiction, as limited by statute.” (Denny H. v. Superior
Court (2005) 131 Cal.App.4th 1501, 1511 [citing Los Angeles County Dept. of Children
etc. Services v. Superior Court (1997) 60 Cal.App.4th 1088, 1091-1092].)

2. The court did not abuse its discretion in denying mother’s section 352
motion

In this case, mother does not claim she was entitled to a continuance because an
“external factor” interfered with her ability to participate in her case plan. (Andrea L.,
supra, 64 Cal.App.4th at p. 1389.) Nor does she contend her services were “defective in
some way.” (Renee J., supra, 96 Cal.App.4th at p. 1465.) Instead, she argues the court
was required to grant a continuance because the evidence showed there was a probability
Emily would be able to reunify with mother if they engaged in more therapy.
Mother fails to consider that although the court denied her motion for a
continuance, it nonetheless structured its orders in a manner that preserved the possibility
of reunification in the future. After terminating reunification services, the court obtained
the parties’ consent to bypass the section 366.26 hearing and select long-term foster care
as Emily’s permanent plan.9 The court also ordered Emily to continue participating in

9 Section 366.22 permits the juvenile court to bypass the setting of a section 366.26
hearing and order a child to remain in long-term foster care if it finds “by clear and
convincing evidence, based on the evidence already presented to it, . . . that there is a
compelling reason . . . for determining that a hearing held under Section 366.26 is not in
the best interests of the child because the child is not a proper subject for adoption and

35
conjoint counseling with her mother and set the matter for a six-month permanent plan
review pursuant to section 366.3. The court explained that its orders were intended to
allow Emily “to have continuing services . . . to see if at one point . . . we can possibly
reunify her with the mother.”10
Under section 366.3, when a child has been placed in long-term foster care and
parental rights have not been terminated, the parent is entitled to participate in a status
review hearing regarding the child’s permanent placement plan every six months.
(§§ 366.3, subds. (d) & (f).) At each six-month hearing, the court may reinstitute
reunification services if the parent proves “by a preponderance of the evidence, that
further efforts at reunification are the best alternative for the child.” (§§ 366.3, subds. (f)
& (d)(4).) The court is also required to consider, among other things: “all permanency
planning options for the child including whether the child should be returned to the home
of the parent” (§ 366.3, subd. (h)); “[t]he extent of progress the parents . . . have made
toward alleviating or mitigating the causes necessitating placement in foster care”
(§ 366.3, subd. (d)(7)); and “[t]he likely date by which the child may be returned to, and
safely maintained in, the home [or other permanent placement].” (§ 366.3, subd. (d)(8).)
As the court explained at the section 366.22 hearing, because Emily has been
placed in long-term foster care and mother’s parental rights have not been terminated,
mother will have an opportunity to reunify with Emily if the continuing conjoint therapy
proves successful. Alternatively, mother may be able to obtain a reinstatement of her

has no one willing to accept legal guardianship.” In this case, DCFS, mother, father and
Emily all agreed with the court’s proposal to select long-term foster in lieu of setting a
section 366.26 hearing. Because no party has raised any issue regarding that portion of
the court’s decision, we assume the court’s actions were proper.

10 The court entered various additional orders that addressed concerns mother had
raised about the fairness of the dependency proceedings. First, the court ordered DCFS
to investigate whether McLean had a conflict of interest in serving as both mother and
Emily’s conjoint therapist and Emily’s individual therapist. Second, the court ordered
grandmother not to discuss the issue of placement with Emily. Third, the court ordered
DCFS to investigate whether a second monitor should be assigned to aid grandmother in
monitoring father’s visits with Emily.

36
reunification services. Thus, mother has effectively received the very relief she requested
in her motion for a continuance: an opportunity to participate in additional services with
Emily that may ultimately result in reunification.11 We find no basis for concluding the
juvenile court abused its discretion by using mechanisms other than a section 352
continuance to provide mother an opportunity to reunify with her child.12

11
The minute orders issued since the section 366.22 hearing indicate that: (1) the
juvenile has maintained long-term foster care as Emily’s permanent placement plan; (2)
the court has still not set a section 366.26 permanency planning hearing; and (3) the court
has continued to require Emily to participate in services with mother, including conjoint
therapy and visits to North Carolina. The most recent minute order also indicates the
court has ordered DCFS to initiate an ICPC investigation on mother’s home in North
Carolina. These orders suggests that, despite the termination of mother’s reunification
services, the court has ordered Emily to continue participating in services and is now
investigating whether mother’s home in North Carolina is a suitable residence for Emily.
12
If the juvenile court elects to set a section 366.26 permanency plan hearing at
some point in the future, mother will have an opportunity to challenge that decision
through a petition for writ review. (See § 366.26, subd. (l).) Given the current state of
the record, it appears unlikely mother’s parental rights could be properly terminated in
the absence of some additional, newly discovered evidence. At the jurisdictional phase
of these proceedings, DCFS recommended the court deny the section 300 petition with
respect to mother given that North Carolina child services specifically told her she could
send Emily to with the father and the paternal grandmother in California. The court,
however, elected to sustain the petition. Since then, mother has diligently complied with
every aspect of her case plan and made frequent cross-country trips to participate in the
dependency proceedings. The evidence also indicates that: mother has continued to
engage in conjoint therapy with Emily; mother is gainfully employed at a hospital and
lives in a comfortable residence where Emily would have her own bedroom; mother does
not have any drug or substance abuse problem; and mother’s therapist in North Carolina
has repeatedly informed the court Emily can be safely returned to her mother. There is
also no evidence suggesting mother mistreated Emily while the child was living with her
in North Carolina. Rather, the petition was based solely on the fact she permitted Emily
to visit her father in California.

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 DISPOSITION

The juvenile court’s order is affirmed.

ZELON, J.

We concur:

PERLUSS, P. J.

WOODS, J.

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