In re K.S.

Filed: 2/24/16 Unmodified opinion attached

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In re K.S., a Person Coming Under the H042339
Juvenile Court Law. (San Benito County
Super. Ct. No. JV-14-00024)

SAN BENITO HEALTH AND HUMAN ORDER MODIFYING OPINION
SERVICES AGENCY, AND DENYING REHEARING
[NO CHANGE IN JUDGMENT]
Plaintiff and Respondent,

v.

A.S.,

Defendant and Appellant.

THE COURT:
It is ordered that the opinion filed herein on January 27, 2016, be modified in the
following particulars:
1. On page 1, line 1, change “Andrea S.” to “Mother A.S.”
2. On page 1, line 9, change “Andrea S.” to “A.S.”
3. On page 2, line 1, change “Andrea S. (mother)” to “A.S. (hereafter
mother)”
4. On page 2, line 2, delete “Kaiser Permanente”
5. On page 2, lines 2 – 3, change “Kaiser medical facility” to “covered
medical facility”
 6. On page 2, line 3, change “Kaiser pediatric psychiatric clinic” to “covered
pediatric psychiatric clinic”
7. On page 2, line 5, delete “with Kaiser”
8. On page 2, lines 11 – 12, delete “for Santa Clara County”
9. On page 4, lines 11 – 12, delete “, who worked for the Department of
Corrections and Rehabilitation,”
There is no change in the judgment.
The petition for rehearing is denied.

____________________________________
Rushing, P.J.

____________________________________
Márquez, J.

____________________________________
Grover, J.

2
Filed: 1/27/16 Unmodified opinion
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In re K.S., a Person Coming Under the H042339
Juvenile Court Law. (San Benito County
Super. Ct. No. JV-14-00024)

SAN BENITO HEALTH AND HUMAN
SERVICES AGENCY,

Plaintiff and Respondent,

v.

A.S.,

Defendant and Appellant.

Andrea S. challenges the juvenile court’s assumption of jurisdiction over her
daughter, K.S., under Welfare and Institutions Code section 300. She also challenges the
disposition order continuing jurisdiction and removing K.S. from her custody.
Respondent San Benito Health and Human Services Agency defends the juvenile court’s
orders, and K.S. has not participated in this appeal. Finding no reversible error, we will
affirm.
I. BACKGROUND
K.S. was removed from an abusive home when she was four. At age five she was
placed with Andrea S. who adopted her a year later. K.S. is a special needs child
diagnosed with reactive attachment disorder, attention deficit hyperactivity disorder, post
traumatic stress disorder, and a learning disorder. Those special needs qualified K.S. for
financial assistance through the state’s Adoption Assistance Program.
 Andrea S. (mother) raised K.S. in Hollister. The first two years after her adoption,
K.S. was on mother’s Kaiser Permanente health insurance plan. The closest Kaiser
medical facility was in Gilroy and the closest Kaiser pediatric psychiatric clinic was in
San Jose, but no one on that staff specialized in reactive attachment disorder. After two
years with Kaiser, mother switched K.S. to Medi-Cal (covered by the Adoption
Assistance Program) so K.S. would have access to routine medical care and mental health
services in San Benito County and to specialized medical care throughout the state. San
Benito County Behavioral Health (Behavioral Health), the county’s designated Medi-Cal
mental health services provider, became K.S.’s mental health services provider.
Behavioral Health did not offer treatment for reactive attachment disorder. Mother, a
licensed social worker who had worked as a child protective services social worker for
Santa Clara County, was familiar with residential treatment programs in Monterey and
Santa Clara counties that would address reactive attachment disorder, and she felt K.S.
was legally entitled to that specialized treatment.
When K.S. was nine an Adoption Assistance Program assessment identified
problem behaviors such as chronic lying and stealing, aggression, problems with peers,
property destruction, enuresis, and sexualized behavior. In seventh grade K.S. brought a
knife to school that she claimed to be carrying for protection. K.S. started ninth grade in
2014. In September of that year she was assaulted by an 11-year-old girl, a runaway
companion, resulting in a fractured nose. By December of that year she had run away
several times. According to mother, K.S. was having difficulty adjusting to high school.
A school mate was pressuring her to have sex with him, and she was carrying knives for
protection. K.S. had also been a suspect in a burglary and theft case.
K.S. ran away Saturday, December 6, 2014, spent the night with a boy in an
abandoned house, and returned home the next day with three large knives. On Monday,
December 8, school staff contacted mother after finding a note K.S. had written to a
friend saying “When you get this I will be dead!” K.S.’s Behavioral Health therapist was
2
unavailable that day so K.S. was assessed by a crisis counselor and determined not to be a
danger to herself or others.1 Mother disagreed with that assessment. Given K.S.’s at-risk
behaviors, she felt K.S. should be placed on a psychiatric hold, and she refused custody
of K.S. because she could not ensure her safety. Without the ability to hold K.S., the
Behavioral Health treatment team’s only recourse was to discuss a safety plan with K.S.
in the event she ran away again. Staff asked K.S. to sign a “No Harm Agreement” and to
call her mother every hour if she ran away. Mother felt this plan did not assure K.S.’s
safety, and she refused to take her home. Police were called and K.S. was placed in
protective custody.
K.S. was in foster care for two months, living in a home in Los Banos with several
teenage boys. After the January 2015 jurisdiction hearing, she was placed with her
biological aunt in Sacramento.
II. TRIAL COURT PROCEEDINGS
On December 11, 2014, the Agency filed an amended juvenile dependency
petition alleging that K.S. came within the jurisdiction of the juvenile court under
Welfare and Institutions Code section 300, subdivisions (c) and (g).2 At the December 11
detention hearing mother was still unwilling to take custody of K.S., who had been
placed in a foster home in Los Banos. K.S. was detained, the court ordered reunification
services, and it set a jurisdiction hearing for January 5, 2015.
On January 5 mother requested that the petition be dismissed because she planned
to move with K.S. to Sacramento where K.S. would have extended family support and

1
K.S. later told Agency staff that she runs away because her mother is judgmental
and difficult. She did not deny her at-risk behaviors—breaking into abandoned homes,
drinking beer, smoking marijuana, stealing, and carrying knives. But she did deny being
suicidal, claiming that her mother misunderstood and overreacted to the note.
2
Unspecified statutory references are to the Welfare and Institutions Code.
Unspecified subdivisions refer to section 300.

3
access to mental health treatment, and she would be removed from the violence and
harassment in Hollister. Mother had made arrangements for K.S. to live with her
biological aunt in Sacramento until she could relocate. And K.S., who on two previous
occasions had told the social worker that she did not want to return to mother’s care, told
mother that morning that she wanted to return home. The court continued the matter
because mother had not discussed her dismissal request with her attorney.
A. THE JURISDICTION HEARING
At a contested jurisdiction hearing held on January 26, mother again asked that the
petition be dismissed because she was capable of parenting K.S. with an appropriate
safety plan. She testified that she had arranged for K.S. to live with her aunt in
Sacramento where appropriate mental health services were available. Mother, who
worked for the Department of Corrections and Rehabilitation, would relocate to
Sacramento as soon as she could obtain a job transfer. In the meantime, she planned to
visit and participate in treatment with K.S. every weekend. Mother had obtained referrals
to Sacramento mental health services specializing in reactive attachment disorder. K.S.’s
aunt had a long-term and supportive relationship with mother, and mother and K.S. were
both close with her. Mother intended to give the aunt K.S.’s Adoption Assistance
Program grant money and authorize the aunt to obtain needed services. Mother testified
that K.S. was not doing well in her current placement—sharing a foster home with five
teenage boys. On December 10 mother had provided the Agency with contact
information for the biological aunt, but K.S. had remained in the Los Banos placement
hoarding knives, being harassed by the boys, and not receiving individual or family
therapy.
K.S.’s aunt, who lived with her husband and adult son, testified that her home was
open to K.S., and she would work with mother to facilitate K.S.’s treatment and therapy.
Although the aunt understood that mother’s plan was to quickly reunite with K.S., if that
did not happen the aunt was willing to put K.S. on her insurance plan and, with or
4
without a guardianship, have K.S. live with her until she became an adult. K.S. had been
in the aunt’s custody before her placement with mother. K.S. had not visited Sacramento
in several years but her aunt had recently visited her in Hollister.
K.S.’s attorney made an offer of proof that K.S. “would like to go to Sacramento
and be with her aunt.” K.S. corrected her attorney, explaining “I wouldn’t like to live
with my aunt. I would like to be released to my mother because I feel that I trust her
more. And we’re working on our problems, and it’s better if we’re together and we work
on our problems together instead of being apart. It’s a lot harder for me.”
The court interrupted the Agency’s summation, asking “Isn’t this a lot like the
dirty house that’s been cleaned up by the time we get to hearing? [¶] … [¶] She’s not
refusing to take her; she wants her back. [¶] … [¶] And she has a plan.” The Agency
argued that “the issues [were] still there,” K.S.’s extended contact with her aunt was not
recent, and mother’s plan was not realistic. At the same time, the Agency argued that if
the court were to take jurisdiction, it was considering the same aunt for placement.
Jurisdiction would provide the Agency the opportunity to make sure the aunt had
appropriate services to maintain the placement, and it would provide a safety net for K.S.
in the event aunt could not care for her.
During mother’s closing summation the court voiced a concern that K.S. now
wanted to be with mother but mother wanted to send her to a place with no recent
familiarity. Mother’s counsel suggested mother explain her timetable, and a colloquy
ensued,3 in which mother was repeatedly asked to stop talking over the court and warned

3
We include the full text of the exchange between mother and the court here:
“[Mother] It’s as soon as I can get up there. It’s just not safe for her to be here in
Hollister. She’s not getting -- [The Court] As soon as you can get up there? Don’t you
have vacation? Don’t you have family care leave? [Mother] I have the AAP grant to use
for -- [The Court] No, just forget her grant. Can you take off work -- [Mother] I’m
saying -- [The Court] -- and go up there and take care of what you need to do for your
daughter in a week? [Mother] I’m saying all the time I used to have I used up to take
(Continued)
5
that further inappropriate conduct could result in contempt. The court again warned
mother, when she interrupted the closing summation by K.S.’s counsel, that she was
acting inappropriately and suggested that K.S. leave the courtroom. Mother responded:
“So you can yell at me without being in front of her. Fine.”
The court found insufficient evidence to sustain the subdivision (g) allegation.
Regarding the subdivision (c) allegations, the court ruled: “I was leaning toward, frankly,
that there wasn’t any evidence for [(c)], because it appeared that [mother] was willing to
take the child basically after she had refused to take the child home previously. And I’m
looking to see – the child is suffering or is at substantial risk of suffering serious
emotional damage, and I think we’ve got that. But it has to be because the child has no
parent or guardian capable of providing the appropriate care. On the one hand, it sounds

care of her. All her child care people have quit. All her AAP grant used to go to child
care and summer camp and horseback riding and swimming lessons and specialized
services for her, and tutoring. [The Court] Hold on. [Mother] I’ve used to spend it all
on that, but then -- [The Court] I’m not asking you that. [Mother] -- they all quit on
me. [The Court] Stop, stop, stop. [Mother] Now I spend it -- [The Court] Stop, stop.
[Mother] -- on taking time off work. [The Court] Stop. Do you know what the word
‘stop’ means? Now I see why you had so much trouble with mental health. Okay. You
have a one-track mind. It was evident when you were testifying. When all of a sudden
questions came up and you were forced to deal with the issues, then you -- [Mother] I’m
tired of people listening -- [The Court] You do not listen. [Mother] -- to themselves
instead of me. [The Court] You want to go to jail next? [Mother] That would be great.
[The Court] That’s the next step here if I have to hold you in contempt. You need to be
quiet, and you need to grow up like a big person and not interrupt me in the courtroom or
you will be facing potential contempt and going to jail, in which case you’re going to
have worse trouble. Don’t make it worse. Don’t make your daughter have to have this
problem. She’s seen this exchange. It’s not good for her. [¶] Okay. Here’s the deal.
Instead of being excitable I want you to calm down. I don’t want to hear you going on
and on. I want to know this: When can you be with her? That’s the question. [Mother]
How long? As soon as I can. [The Court] The number of days. Can you give me an
estimate of time? [Mother] I don’t know how long it will take me to sell my house and
get a new job. I don’t know. Do I know that? I don’t. [The Court] I see. That helps. I
understand why you don’t know. That could go on a very long time, especially in today’s
market.”

6
like she is. She is now willing to go up and try to provide care. I’m not 100 percent
certain that there is enough money to provide the appropriate care [pause], with the
payments that are received. There’s been insufficient information in that regard. I’m
also not convinced that mother doesn’t have her own concerns that are impacting,
frankly, a logical, rational approach. Mom’s conduct in court has been inappropriate.
She has clearly demonstrated her embroilment with the mental health department. She
couldn’t even, in a court setting, follow basic instructions from myself until I had to raise
my voice, and even then she kept trying to talk over me and trying to talk louder than me.
Her voice became agitated on the record during her testimony when she reached a point
where she wasn’t being heard on a question. I’m concerned about mom’s mental health,
frankly, and that that could be interfering with getting the appropriate care. Initially I
thought it could happen. However, now in fact because mom had – [mother] had an
inappropriate relationship with mental health[], she caused her daughter to be placed in
one placement which was disruptive, as her own counsel notes, and she may obviously
have suffered from being placed there, this all because she, the mom, didn’t get her way
at mental health, so she had to play this difficult situation out with CPS. That is a
problem. That indicates to me that perhaps there is no parent right now capable of
providing appropriate care. My concern is, frankly, that [K.S.] doesn’t want to go up
with her aunt; she would like to be with her mom. That’s who she needs, her mom using
the intelligence that her mom obviously has and using that in a rational manner rather
than relying upon her emotions, but now mom tells us that she has to sell her house and
get a new job. That is not quick timing. It’s not like it’s going to be a week or two. So
therein lies the problem. [¶] Although I wasn’t initially, before some of the final
evidence came into play and seeing this whole circumstance, I’m now convinced, based
on everything I’ve seen, that C-1 -- [Mother] Have you even read my -- [The Court] --
and C-2 are true.”

7
B. THE DISPOSITION HEARING
A contested disposition hearing was held on March 16, 2015, at which time
mother sought dismissal of the petition. The Agency’s disposition report described
mother during the course of the dependency as having “regularly blamed everyone else
for the problems that exist between herself and her daughter.” The report continued:
“When someone of authority, whether it is at San Benito County Behavioral Health, the
Agency, and even the Court, poses [a] question regarding the mother’s action or inaction,
they have frequently been met with a loud, aggressive, hostile response. [¶]…[¶] The
mother’s mental health and issues with controlling her own anger are of concern to the
Agency and should be addressed during the course of this dependency. [¶] While the
initial concerns focused on [K.S.’s] behaviors, the Agency strongly believes the mother
has a part to play in why [K.S.] acts in the manner she does and this has not yet been
addressed. Therefore, the Agency does not believe the mother has made substantive
progress toward mitigating the issues which led to the Court’s initial intervention.”
The social worker testified on cross-examination that mother had arranged for
individual counseling for herself through Kaiser and she had located reactive attachment
disorder counseling for K.S. in Sacramento. The Agency was not opposed to the services
mother had identified for K.S., and K.S. had started therapy. The social worker
acknowledged that K.S. had displayed signs of mental anguish in Los Banos, and she had
received no therapy until she resumed sessions at Behavioral Health in February. The
social worker explained that the Agency had had an issue with mother wanting to discuss
with K.S. what was going on in court during visitations. Initially mother was upset when
she was instructed not to discuss court with K.S., but eventually she followed the
Agency’s direction, making substantial progress in that regard.
An Agency supervisor testified that his staff met with Behavioral Health staff
immediately after K.S. was placed in Los Banos, and Behavioral Health submitted a
treatment authorization request to Merced County at that time. The Agency transported
8
K.S. from Los Banos to Hollister to meet with a psychiatrist on January 7 and February 4.
Although K.S. was scheduled for a Merced County intake appointment, those services
were never utilized because the foster parents gave notice that they were no longer
willing to care for her. After that notice the Agency shifted its focus to accessing mental
health services in Sacramento County, and mother was very helpful and diligent in
facilitating that process. K.S. was able to access mental health services in Sacramento
without a treatment authorization request because her adoption was finalized in that
county. Mother informed the Agency of her individual therapy through Kaiser, and the
Agency approved of that treatment.
The Agency supervisor felt that court supervision was appropriate to ensure K.S.
had access to appropriate care given the circumstances of K.S.’s detention and mother’s
acknowledged inability to keep K.S. safe in Hollister. He was unfamiliar with the court
dismissing a petition and ordering the Agency to provide informal supervision services,
but he believed the Agency could comply with such an order.
A licensed social worker who was mother’s colleague testified on mother’s behalf
as an expert in child welfare. She testified that the label “foster child” can be stigmatic
and potentially harmful. According to the expert, mother had completed a 10-hour trust-
based parenting course for children from difficult beginnings, was engaged in individual
therapy, and was starting group therapy. Mother had arranged for psychiatric services for
K.S. both in San Benito and Sacramento counties, and mother and K.S. had completed
intakes for reactive attachment disorder therapy in Sacramento. In the expert’s opinion,
K.S.’s best interest would be served by dismissal—even without informal supervision—
because K.S. was going to remain in a near-kin placement with her aunt, and the aunt and
mother had arranged for appropriate services for K.S. She also believed the family could
manage K.S.’s care more competently than the Agency, and K.S. did not need to be a
dependent child for a second time in her life. Even though she did not know K.S. well
and she had never spoken with any mental health professionals in this case, the expert
9
testified that mother’s refusal to take K.S. on December 8 demonstrated good parenting
skills because Behavioral Health would not help K.S. She acknowledged that K.S.’s
placement with her aunt was not a foster placement and that court supervision assured
needed services for both parents and children.
The disposition report contained a February 18 e-mail from the aunt voicing K.S.’s
request to continue living with her until mother moved to Sacramento. K.S. asked to start
family therapy and discuss her return to mother’s care after mother settled in Sacramento.
K.S.’s counsel opposed a dismissal, arguing that K.S.’s at-risk behavior, mother’s
inability to control her, and mother’s unrealistic expectations of Behavioral Health
warranted continued court supervision.
The court rejected mother’s dismissal request, explaining that mother, by refusing
to take K.S. home from Behavioral Health on December 8, had used K.S. as a pawn
knowing that K.S. would be traumatized by protective custody. The court viewed
mother’s objection to court supervision as stubbornness and a failure to put K.S.’s
interests before hers. Adopting the findings and orders contained in the disposition
report, the court declared K.S. a dependent, continued K.S.’s placement with her aunt,
and continued family reunification services.
III. DISCUSSION
A. JURISDICTION CHALLENGES
1. Standard of Review
Statutory bases for jurisdiction are reviewed for substantial evidence. (In re
Rocco M. (1991) 1 Cal.App.4th 814, 820.) We must determine whether “there is any
substantial evidence, that is, evidence which is reasonable, credible, and of solid value”
to support jurisdiction under subdivision (c). (In re Savannah M. (2005)
131 Cal.App.4th 1387, 1393.) The trial court’s judgment is presumed correct. (Shaw v.
County of Santa Cruz (2008) 170 Cal.App.4th 229, 267.) All conflicts are resolved in

10
favor of the judgment and all legitimate inferences are indulged in to uphold the juvenile
court’s determinations. (In re Rocco M., at p. 820.)
The Agency has the burden of establishing that the basis for jurisdiction exists at
the time of the adjudication hearing. (In re Chantal S. (1996) 13 Cal.4th 196, 210; In re
Rocco M., supra, 1 Cal.App.4th at p. 820.) “In evaluating risk based upon a single
episode of endangering conduct, a juvenile court should consider the nature of the
conduct and all surrounding circumstances. It should also consider the present
circumstances, which might include, among other things, evidence of the parent’s current
understanding of and attitude toward the past conduct that endangered a child.” (In re
J.N. (2010) 181 Cal.App.4th 1010, 1025–1026.)
2. Substantial evidence
Mother argues that the court’s jurisdiction finding was not supported by
substantial evidence. Subdivision (c) requires a showing that K.S. “is suffering serious
emotional damage, or is at substantial risk of suffering serious emotional damage,
evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior
toward self or others” and that either the parent is causing the emotional damage or the
parent is not capable of providing appropriate mental health treatment. (In re Alexander
K. (1993) 14 Cal.App.4th 549, 557.) Here the petition alleged that mother is not capable
of providing appropriate care.4

4
We note that the Judicial Council form petition (Form JV-122) provides two
options for subdivision (c) jurisdiction—that the child suffers or is at risk of suffering
serious emotional damage either (1) “as a result of the conduct of the parent or guardian,”
or (2) “because the child has no parent or guardian capable of providing appropriate
care.” In this case the social worker checked the second “because” box. But the statute
does not require that the emotional damage result from the parent’s inability to provide
appropriate care, only that the parent is not capable of providing care for the emotional
damage. We will therefore disregard the causal language in the form petition and
determine whether the record supports the proper criterion under the statute: whether
mother is capable of providing appropriate care for K.S.

11
 Mother does not dispute that K.S. suffers or is at risk of suffering serious
emotional damage. She argues that any bases for jurisdiction that existed when K.S. was
taken into protective custody on December 8 no longer existed on January 26 when the
court made the jurisdiction finding. According to mother, insufficient evidence supports
the court’s finding that she is incapable of providing K.S. with appropriate mental health
care in light of her plan for K.S. to move to Sacramento.
Here the record shows more than an isolated incident of mother impeding K.S.’s
mental health treatment. Indeed mother never secured specialized therapy for K.S.’s
reactive attachment disorder, even though she was aware of reactive attachment disorder
treatment options in Monterey and Santa Clara counties and had been receiving a sizable
monthly grant for K.S.’s special needs since at least 2009.
Mother’s relationship with Behavioral Health—mental health professionals who
had been overseeing K.S.’s treatment for several years—was impeding K.S.’s therapy.
According to the jurisdiction report, mother felt Behavioral Heath was disempowering
her by aligning with K.S. Mother wanted Behavioral Health to set boundaries for and
admonish K.S.’s unacceptable behavior and illegal high risk activities, even though
Behavioral Health’s clinical supervisor had informed mother that it was her responsibility
and not the role of a mental health clinician to tell a child what is okay and not okay and
provide consequences for bad behavior. K.S.’s individual therapist felt mother was
frustrating her treatment by using therapy as a consequence for bad behavior. Mother
had not been internalizing feedback regarding the role of a therapist in disciplining and
setting boundaries for K.S., and she and K.S. had not been engaged in family therapy for
several months.
Mother had rejected Behavioral Health’s professional assessment that K.S. did not
qualify for an involuntary psychiatric hold, knowing that refusal to take K.S. home would
result in the Agency taking custody of K.S. Even after a three day cooling off period, at

12
the detention hearing mother still refused to take custody of K.S. because Behavioral
Health would not hospitalize her.
Mother’s demeanor during the jurisdiction hearing demonstrated lack of insight
that her behavior was obstructing K.S.’s ability to receive appropriate care. While we do
not discount mother’s love and desire to find appropriate mental health care for K.S., on
this record substantial evidence supports the conclusion that mother was not capable of
providing that care. Mother argues that this case is similar to In re Brison C. (2000)
81 Cal.App.4th 1373, but that case addressed the sufficiency of evidence to support a
finding that the child suffered or was at substantial risk of suffering serious emotional
damage under subdivision (c). Mother does not contest that finding here.
3. Due Process
Mother argues that her due process rights were violated because the court relied on
a basis never alleged in the petition—her mental health—to sustain subdivision (c)
jurisdiction. The court expressed a concern for mother’s mental health based on her in-
court demeanor. That demeanor is relevant to mother’s insight into her past conduct
(In re J.N., supra, 181 Cal.App.4th at pp. 1025–1026) and its effects on K.S.’s access to
appropriate mental health services. As we have explained, mother’s decisions regarding
K.S.’s mental health care and mother’s disregard for Behavioral Health’s guidance and
assessments support jurisdiction here. The court’s added observations about mother’s
demeanor and mental health merely support that finding; we do not interpret the juvenile
court’s comments as asserting an additional basis for jurisdiction.
B. DISPOSITION CHALLENGES

1. Denial of Section 390 Dismissal Request
Mother argues that substantial evidence does not support the denial of her request
to dismiss the petition at the disposition hearing under Welfare and Institutions Code
section 390. Section 390 provides that the juvenile court “may dismiss [a section 300]

13
petition or may set aside the findings and dismiss the petition if the court finds that the
interests of justice and the welfare of the minor require the dismissal, and that the parent
or guardian of the minor is not in need of treatment or rehabilitation.”
a. Standard of review
As a threshold matter, we conclude that abuse of discretion, not substantial
evidence, is the proper standard of review of the denial of a request to dismiss a
dependency petition. Section 388, subdivision (a)(1) provides that a parent may petition
the juvenile court “to set aside any order of court previously made or to terminate the
jurisdiction of the court.” That section encompasses a dismissal under section 390 (see
In re Marcus G. (1999) 73 Cal.App.4th 1008, 1014), and the grant or denial of a motion
under section 388, subdivision (a)(1) is generally reviewed for an abuse of discretion.
(In re Amber M. (2002) 103 Cal.App.4th 681, 685; In re Y.M. (2012)
207 Cal.App.4th 892, 920; In re S.M. (2004) 118 Cal.App.4th 1108, 1119.) Further, the
juvenile court is vested with “ ‘very extensive discretion in determining what will be in
the best interests of a child,’ ” and that determination will not be reversed absent a clear
abuse of discretion. (In re Eric. B. (1987) 189 Cal.App.3d 996, 1005.)
Although the substantial evidence standard may apply to an order granting a
request to dismiss a dependency petition (see In re Marcus G., supra, 73 Cal.App.4th at
p. 1014), that standard is not appropriate to review the denial of a dismissal request. As
this court has aptly explained, “where the trier of fact has expressly or implicitly
concluded that the party with the burden of proof did not carry the burden and that party
appeals, it is misleading to characterize the failure-of-proof issue as whether substantial
evidence supports the judgment.” (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.)
b. Analysis
The juvenile court did not abuse its discretion by denying mother’s dismissal
request. The court had an interest in seeing that K.S. receive and engage in appropriate
mental health treatment and that mother develop skills to support K.S.’s mental health
14
needs. The court also did not misinterpret relevant law regarding informal supervision—
section 301—in denying mother’s dismissal request. Although the Agency supervisor
testified that San Benito County did not have an informal supervision program, he also
testified that the Agency would implement any court order incorporating voluntary
services. The record shows the court denied mother’s dismissal request, which included
participation in informal services under section 301, because it was in K.S.’s best interest
for the court to supervise her treatment and reunification.
2. Disposition Findings and Order
Section 360 authorizes the juvenile court to adjudge a child described by
section 300 to be a dependent of the court. (§ 360, subd. (d).) The juvenile court
adjudged K.S. a dependent of the court, and it adopted the findings recommended in the
Agency’s disposition report, including finding by clear and convincing evidence that
removal was warranted under section 361, subdivisions (c)(1) and (c)(3). “ ‘We review
an order removing a child from parental custody for substantial evidence in a light most
favorable to the juvenile court findings.’ ” (In re A.R. (2015) 235 Cal.App.4th 1102,
1116.)
a. Removal under section 361, subdivision (c)(3)
Section 361, subdivision (c)(3) authorizes the removal of a child from the physical
custody of her parent when the child “is suffering severe emotional damage, as indicated
by extreme anxiety, depression, withdrawal, or untoward aggressive behavior toward
himself or herself or others, and there are no reasonable means by which the [child’s]
emotional health may be protected without removing the [child] from the physical
custody of his or her parent or guardian.” Mother does not dispute the emotional damage
finding, and the no reasonable means finding is support by substantial evidence. Mother
insists that K.S. was not safe in her physical custody and that, even if the petition were to
be dismissed, K.S. would remain in the custody of her aunt. But mother’s failure to
secure specialized therapy for K.S.’s reactive attachment disorder, her failure to follow
15
advice from K.S.’s mental health team in San Benito County, and her rejection of
Behavioral Health’s December 8 dangerousness assessment supports a finding that
supervision is necessary to assure K.S.’s access to and engagement in appropriate mental
health services.
Mother argues the Agency failed to make reasonable efforts to avoid K.S.’s
removal. Mother points to what she describes as “the [A]gency’s ineptitude” in
providing services for K.S. during her initial detention—K.S.’s placement in foster care
together with several teenage boys where her at-risk behaviors continued and she
received no therapy. But a questionable foster placement and a gap in therapy does not
undercut the “no reasonable means” finding. Mother has failed to show how the
circumstances of the initial detention and placement—however flawed—impacted the
existence of any reasonable means of protecting K.S. without removing her from
mother’s care after she had been declared a dependent. Mother also points to her own
role in locating appropriate mental health service providers for K.S. in Sacramento. But
mother’s identification of service providers does not amount to a reasonable means of
protecting K.S. on this record, nor does it obviate the need to remove K.S. from the
physical custody of her mother to protect her emotional health, as we have already
discussed.
We reject mother’s argument that the trial court understood “reasonable means” in
section 361, subdivision (c) as requiring mother to have made reasonable efforts to
provide K.S. with appropriate mental health care before the petition was initiated. During
mother’s closing summation, the juvenile court observed that nothing had prevented
mother from arranging mental health care for K.S. in Sacramento before the Agency
intervened on December 8. But that comment appears to have been made in response to
Mother’s point that K.S.’s services were delayed two months even with court
supervision. We do not interpret it as reflecting a misinterpretation of section 361,
subdivision (c).
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 We also reject mother’s argument that the court inappropriately focused on her
“unwavering stubbornness” instead of the evidence presented at the disposition hearing
showing that mother had arranged for mental health services in Sacramento for K.S.
faster than the Agency was able to secure the same services. Our role as a reviewing
court is not to reweigh competing evidence. Our task is to determine whether the record
contains substantial evidence to support the juvenile court’s disposition decisions. As we
have explained, notwithstanding evidence of mother’s laudable efforts to secure services
for K.S. in Sacramento, the record sufficiently supports the juvenile court’s conclusion
that K.S. is suffering or is at risk of suffering severe emotional damage and there are no
reasonable means to protect K.S.’s emotional health without removing her from mother’s
custody.
b. Removal under section 361, subdivision (c)(1)
The juvenile court found removal warranted under section 361, subdivision (c)(1),
which requires a showing that “a substantial danger to the physical health, safety,
protection, or physical or emotional well-being of the minor [exists] if the minor were
returned home, and there are no reasonable means by which the minor’s physical health
can be protected without removing the minor from the minor’s parent’s or guardian’s
physical custody.” The Agency argues that jurisdiction findings are prima facie evidence
that a child cannot safely remain in a parent’s care under section 361, subdivision (c)(1).
But that prima facie finding only applies to a jurisdiction finding under section 300,
subdivision (e) that a child under five years old has been physically abused. (§ 361,
subd. (c)(1).) We are not satisfied that the record supports the juvenile court’s finding by
clear and convincing evidence that removal from mother’s care was required to protect
K.S.’s physical health, and we will order it stricken. However, the elimination of that
finding does not affect the validity of the disposition order based on section 361,
subdivision (c)(3).

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 IV. DISPOSITION
The jurisdiction order is affirmed. The disposition order is modified to strike
finding 11; as modified, that order is affirmed.

____________________________________
Grover, J.
WE CONCUR:

____________________________
Rushing, P.J.

___________________________
Márquez, J.

18
Trial Court: San Benito County Superior Court
Superior Court No. JV-14-00024

Trial Judge: Hon. Steven Sanders

Counsel for Plaintiff/Respondent: Irma Valencia, Deputy County Counsel
Office of the County Counsel
San Benito County Health and Human County of San Benito
Services Agency

Counsel for Minor: No appearance for Minor

K.S.

Counsel for Defendant/Appellant: Karen Joan Elcaness
in association with
A.S. Sixth District Appellate Program