In re Andrew G. CA4/1

Filed 5/4/16 In re Andrew G. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re ANDREW G, a Person Coming
Under the Juvenile Court Law.
D069015
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. J518815)
Plaintiff and Respondent,

v.

GRACIELA G.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Laura J.

Birkmeyer, Judge. Affirmed.

Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and

Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel, and Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
 When Andrew G. was a year old, the juvenile court declared him a dependent

child and removed him from his parents' custody. This order was based on a history of

domestic violence by the father (Father), and drug abuse by both Father and Andrew's

mother, Graciela G.

Almost two years later, after the court had placed Andrew back in Graciela's

custody, the court conducted a hearing under Welfare and Institutions Code1 section 364.

The San Diego County Health and Human Services Agency (Agency) recommended the

court terminate jurisdiction.

At the hearing, the social worker testified that Graciela had failed to appear for

recent drug tests, and had begun taking prescribed marijuana for "anxiety." Andrew's

attorney opposed the Agency's request to terminate jurisdiction, noting Graciela's "litany"

of missed drug tests and history of methamphetamine abuse. The court ordered that

Andrew remain a dependent of the juvenile court.

Graciela appeals, asserting the order retaining jurisdiction is not supported by

substantial evidence. Although in the juvenile court the Agency asked the court to

terminate jurisdiction, now on appeal the Agency contends the order retaining jurisdiction

should be affirmed. In her reply brief, Graciela asserts the Agency cannot "change sides"

in this manner.

We affirm because the juvenile court's order retaining jurisdiction is supported by

substantial evidence. Moreover, it is not inconsistent for the Agency, having advocated

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

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in the juvenile court that jurisdiction should be terminated, to also recognize that the

court's order retaining jurisdiction is supported by substantial evidence and therefore

should be affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

A. Dependency

In October 2013 the Agency filed a petition on behalf of then one-year-old

Andrew under section 300, subdivision (b).2 The petition alleged there was a substantial

risk Andrew would suffer physical harm because his parents exposed him to violent

confrontations involving physical force. Specifically, Father "pushed, slapped, and

punched" Graciela while she was holding Andrew, and on another occasion, pushed her

and burned her back with a cigarette while Andrew was present. Father also shoved

Graciela while she was holding Andrew because she confronted him about using

methamphetamine. Graciela admitted that she had used marijuana and crystal

methamphetamine before knowing she was pregnant with Andrew, and reported she had

stopped using when she discovered she was pregnant and has not used drugs since.

2 Section 300, subdivision (b)(1) provides that a child is within the jurisdiction of
the juvenile court where: "The child has suffered, or there is a substantial risk that the
child will suffer, serious physical harm or illness, as a result of the failure or inability of
his or her parent or guardian to adequately supervise or protect the child, or the willful or
negligent failure of the child's parent or guardian to adequately supervise or protect the
child from the conduct of the custodian with whom the child has been left, or by the
willful or negligent failure of the parent or guardian to provide the child with adequate
food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian
to provide regular care for the child due to the parent's or guardian's mental illness,
developmental disability, or substance abuse."
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 At the subsequent detention hearing, the court found the Agency had made a prima

facie showing that Andrew was a person described by section 300, subdivision (b) and

there was no reasonable means to protect Andrew's physical or emotional health without

removing him from the parents' physical custody. Graciela agreed to not have any

contact with Father and to submit to drug testing. The court placed Andrew with a

paternal relative.

In November 2013 the Agency prepared a jurisdiction/disposition report. The

social worker interviewed Father, who admitted incidences of domestic violence between

himself and Graciela. He denied using methamphetamines. Graciela, then 19-years old,

told the social worker she started using crystal methamphetamine three years earlier,

when she was 16 years old, and stopped in September 2011. Graciela began smoking

marijuana at age 14 and stopped about one year ago. The social worker stated Graciela

"appears to minimize her previous drug history."

The social worker concluded it was not safe to return Andrew to his parents'

custody because they "continue to violate the criminal protective order by having contact

with one another via texts." Moreover, the parents had not started any services to address

"the substance abuse issues and domestic violence issues." The social worked noted

Father failed to appear for his drug test; however, Graciela's drug test on October 11,

2013 was negative.

The social worker recommended the court offer Graciela and Father reunification

services, and that Andrew remain in foster care with supervised parental visits. She also

recommended that Graciela participate in a case plan that included general counseling, a

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parenting education program, and substance abuse testing. The social worker

recommended Graciela submit to drug tests twice each month, and "[st]ay free from

illegal drugs and show [her] ability to live free from drug dependency. Comply with all

required drug tests."

In December 2013 the juvenile court held a settlement conference before the

disposition hearing. The parents submitted to the section 300, subdivision (b) count of

the petition. The court removed Andrew from his parents' custody and placed him in a

paternal relative's home. The court also ordered parental visitation and reunification

services in accordance with the recommended case plans.

B. Status Report—May 2014

In the May 2014 status review report, the social worker reported that Andrew was

doing well. Graciela attended nine therapy sessions, but missed two sessions without a

plausible reason. The therapist stated Graciela was "motivated to be a protective parent."

However, Graciela was a "no show" for two out of three drug tests, and was "not in

compliance with this case plan activity." The social worker recommended that Andrew

remain in out-of-home care with supervised parental visits, and that the court offer the

parents additional services.

C. Addendum Reports and Review Hearing—July and August 2014

In a July 2014 addendum, the Agency noted Andrew was now living with his

paternal grandparents and was adjusting well. During visits, Graciela's interaction was

appropriate and the caregiver stated she had no concerns. Graciela was still failing to

attend some of her therapy sessions without a plausible reason, and was not in

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compliance with the domestic violence component of her case plan. Graciela submitted

to drug tests, with results pending.

In an addendum prepared in August 2014, the social worker continued

recommending that Andrew remain in out-of-home care with supervised parental visits.

Graciela was not in compliance with the therapy portion of her care plan and still had not

completed intake for a domestic violence group. Graciela submitted to two drug tests,

but was a no-show for a third.

In August 2014 the juvenile court conducted a six-month review hearing

(§ 366.21). The court found returning Andrew to his parents' custody would create a

substantial risk of detriment to his physical and emotional well-being. The court

continued Andrew's placement with the paternal grandparents, found his parents had not

made substantial progress with their respective case plans, and ordered the Agency to

provide them with additional services.

D. Status Report and Hearing—December 2014 and January 2015

In the December 2014 status report, the social worker stated Graciela attended

therapy sessions and "has been willing to address her need for managing anger." Graciela

was in compliance with her parenting and domestic violence case plan. Graciela took

four drug tests, all negative. She was a no-show for a fifth test, asserting it conflicted

with her work schedule.

The social worker reported that Father was not in compliance with his case plan.

He had not attended any domestic violence group and was a no-show for all three drug

tests. Father also did not enrolled in a parenting class as required.

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 The social worker recommended the court place Andrew with Graciela, terminate

Father's services, and provide Father with supervised visits. She recommended Graciela

comply with all required drug tests.

In January 2015 the court conducted a 12-month review hearing. After receiving

the Agency's December 2014 report in evidence, the court found Graciela made

substantive progress with her case plan and ordered the Agency to continue to provide

her services. The court found Father had not made substantive progress with his case

plan and terminated his services.3 The court determined Andrew was still a dependent

child of the juvenile court. The court placed Andrew with Graciela on the condition she

"remain in compliance with her case plan."4

In returning custody to Graciela, the court cautioned her that she must remain in

compliance with her case plan, stating:

"The Court: The other thing that I just want to emphasize to
[Graciela] is, we obviously want this to work. We want this to stick.
Sometimes parents make the mistake that once the child is back in
their care, they back away from services, they don't go through with
a lot of the promises that they made to the social worker and the
court, that is not going to work. That actually has the reverse effect.

3 In terminating services for Father, the court stated, "I do find that it is appropriate
at this time to terminate reunification services to Father. He has not made substantive
progress. He has not been in compliance with the criminal court orders relating to
his . . . parole, and there's no substantial probability of return based upon the statutory
factors. [¶] . . . He is circumventing other court orders." Father has not appeared in this
appeal and has not contested termination of his services.

4 Andrew was living with his paternal grandparents. In February 2015, Graciela
moved into that home, believing it to be in Andrew's best interests to remain there.

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 "Jurisdiction usually lasts longer in those circumstances, and
sometimes the child is removed if you're not in compliance. So we
want this to stick. And the services are really important now, so if
there are stressors or things you need assistance with, especially with
a two-year old, now is the time that you use all of the support that
you have and stay engaged with the social worker and engaged in
services."

E. July-August 2015 Status Reviews

In June 2015 Graciela reported two recent domestic violence incidents with

Father. In early June 2015 Father arrived at the paternal grandparents' home while

Graciela was getting ready for work. Her car was inoperable and she had asked her

cousin for a ride. An argument ensued between Graciela and Father, and, when the

cousin arrived, Father got into a physical altercation with the cousin. Graciela called the

police; however, Father fled before the police arrived.

The second incident occurred the next weekend, when Father entered the home

while Graciela was getting ready for work. He asked her to return his car. Graciela said

she had bought it from his father, and the car was now hers. Father called Graciela a

"hoe" and a "bitch," and Graciela was injured when she tried to run out of the house.

Graciela locked herself in the bathroom and called the police. Father stole Graciela's

purse and fled before the police arrived. Graciela stated Andrew was not home during

either of these incidents.

The social worker recommended the court continue dependency jurisdiction for

three additional months. She also recommended Andrew continue to be placed with

Graciela, who was residing with Andrew with the paternal grandparents. The social

worker noted Graciela completed 41 therapy sessions, missing only two. According to

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the therapist, Graciela was very attentive to Andrew's needs and completed all her

treatment goals. Graciela also completed an anger management course and her domestic

violence group counseling.

However, Graciela was only in "partial compliance" with the drug testing

component of her case plan: Graciela was a no-show for two drug tests, and the result of

one other was pending.

In an addendum submitted a few weeks later, the social worker noted Graciela was

a no-show in June 2015 for two out of three drug tests. The social worker recommended

the court continue Andrew's dependency another three months. In a document entitled,

"Safety Mapping," the social worker wrote Graciela was to "continue test neg[ative] not

use drugs" and "refrain from drug use."

In mid-August 2015 the social worker prepared another report. She now

recommended the court terminate jurisdiction and provide an exit order for Father's

visitation. Andrew and Graciela continued to live with the paternal grandparents. By this

time, Andrew had become very attached to the grandparents and Graciela relied on them

for childcare while she was working. Graciela was provided information on low income

housing and was continuing to look for her own housing.

The mid-August 2015 report stated Graciela was a no-show on two drug tests. Of

the two drug tests she took, one was negative and one was pending. The social worker

was unable to evaluate Graciela's compliance with drug testing. There had been no

domestic violence incidents for about two months.

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 F. Review Hearing—September 2015

In September 2015 the Agency prepared two reports. The first, dated September

16, 2015, continued the August 2015 recommendation that the court terminate

jurisdiction, even though Graciela was a no-show for four of five drug tests, making her

noncompliant with her case plan.

Additionally, Graciela was now taking prescribed marijuana for anxiety, which

was so severe in August 2015 an ambulance was called to provide her medical care.

Graciela assured the social worker she would not use marijuana in Andrew's presence, it

would not be accessible to him, and if she uses marijuana, the grandparents would care

for Andrew. On September 22, 2015, the Agency submitted an addendum, which also

recommended the court terminate jurisdiction pursuant to section 364, subdivision (c).5

The court conducted an evidentiary hearing. Without objection, the court received

five social worker reports in evidence.6 The social worker testified that Graciela was a

no-show for several drug tests, and on September 16, 2015, tested positive for marijuana.

Nevertheless, the social worker recommended the court terminate jurisdiction because

Graciela (1) had a medical marijuana prescription; and (2) agreed to comply with a safety

plan providing Andrew would be under the grandparents' care when she was under the

5 Section 364, subdivision (c) provides in part: "The court shall terminate its
jurisdiction unless the social worker or his or her department establishes by a
preponderance of evidence that the conditions still exist which would justify initial
assumption of jurisdiction under Section 300, or that those conditions are likely to exist if
supervision is withdrawn."

6 The court received into evidence reports dated July 1, 2015, July 30, 2015, August
19, 2015, September 17, 2015, and September 22, 2015.
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influence of marijuana and she would not use marijuana in his presence. The social

worker interviewed the grandmother, who stated she did not want marijuana in her home;

however, she was willing to care for Andrew if Graciela was under the influence.

The social worker testified she had monthly contacts with Graciela and never

observed her to be under the influence of a controlled substance or alcohol. Andrew's

grandmother did not report concern about Graciela's use of any drugs. The social worker

testified that Graciela was following the safety plan. She noted that Andrew's "basic

needs are being met" and "there have been no concerns where the mother appears under

the influence while caring for Andrew."

The social worker explained the Agency recommended the court terminate

jurisdiction, despite Graciela's "multiple no shows" for drug tests because, "[E]very

month that I have met with the mother, she never appears to be under the influence. She's

never tested positive for meth throughout the course of the case that I have had it." The

social worker also testified believed Graciela "has been abiding by the safety plans that

we put in place" and the grandparent "has informed me that the mother appears to be

abiding by this as well."

In response to the court's questions, the social worker stated that Graciela was

prescribed marijuana for "anxiety," which she first experienced about six weeks before

the hearing. Although the social worker admitted "it's always a concern" when a parent is

a no-show, she did not immediately visit Graciela to determine if Graciela was under the

influence when she failed to appear for her drug test.

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 The social worker admitted she did not discuss with Graciela alternatives to

marijuana to address her anxiety, and Graciela did not tell her why she was anxious—nor

did the social worker ever ask. Graciela told the social worker that when she uses

marijuana, it is at the end of her school day, around four p.m, and she is not scheduled to

care for Andrew until the grandparents return home with him around seven in the

evening.

The social worker did not know if Graciela told the prescribing physician she is

responsible for caring for a two-year old, or whether the physician knew she had a history

of methamphetamine abuse. The social worker acknowledged "it is a concern" that

Graciela may be inappropriately using drugs and dictating when she wants to drug test.

In closing argument, Andrew's attorney asked the court to not terminate

jurisdiction, stating:

"[W]e have a situation where the case came in for domestic violence.
However, at jurisdiction, mother discussed history of using
methamphetamine as well as marijuana. She indicated she used
marijuana from age 14 to 18, and she indicated that she did not
believe she had a problem—a drug problem with smoking
marijuana.

"At that time, substance abuse testing was added to her case plan and
has remained on her case plan and is in the operative case plan for
this reporting period.

"Yet, . . . in that case plan, mother was required to test for the agency
and to follow up with the substance abuse specialist's
recommendations, if any.

"In the last reporting period, mother failed to test on January 30,
2015, February 19, 2015, July 22, 2015, July 23, 2015, August 17,
2015, August 18, 2015, August 25, 2015, and August 28, 2015. We

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 do have a recent drug test that is positive for marijuana, as well as
two negative tests.

"At this point in time, we have eight missed drug tests on a case plan
that requires mother to substance abuse test for her case plan, with a
parent who has a history of substance abuse.

"Mother's missed tests don't give us any guidance as to what mother
was currently—is currently using and what her levels are. . . . There
are eight missed drug tests we don't know whether mother was using
or not using at that time. We don't have any information to give us
any guidance as to whether mother was under the influence or not
under the influence. [¶] . . .

"This is not a situation where my position is based solely on a
medical marijuana card, it is a bigger concern of a methamphetamine
history and multiple missed drug tests."

After the parties rested and completed closing arguments, the court ordered

dependency jurisdiction to continue, stating:

"The Court: The Agency essentially says, today . . . despite this
significant . . . and disturbing pattern of failing to show for drug
tests, that . . . because mother's entered into a safety plan, and
because she's presented a document indicating that she has a
physician's statement and recommendation dated August 15, 2015,
that she can use marijuana, that . . . [¶] . . . if supervision were
discontinued, that there would be no conditions which would
continue.

"And very respectfully, the court, having reviewed the evidence, I
find that I cannot follow the Agency's recommendations today. And
I say so for a significant number of reasons.

"First, mother continues to remain in a precarious situation. . . . [¶]
[S]he is relying on Father's family, and they obviously have
continued communication with him. [¶] But quite frankly, Father is
a wild card. . . . He has unpredictable behavior. He doesn't follow
the rules. He has not been in touch with the Agency. . . . [¶] But the
situation is mother is in a circumstance where she is more at risk
than in other circumstances because of the fact that she is living with

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 the paternal grandparents. . . . Father still remains untreated.
Nothing has really changed since June. [¶] . . .

"And what is of very significant concern to the court is that the
social worker did no investigation. . . . [¶] . . . And under these
circumstances where mother is living in the home of the domestic
violence perpetrator's parents, she obviously has some significant
pressures on her, so much so that she is experiencing anxiety, none
of that has been explored or investigated.

"And . . . while ordinarily I find the social worker to be very
conscientious and thorough in her investigation, under these
circumstances, I feel that this was grossly inadequately
investigated. . . .

"The combination of the recent domestic violence incident in
June . . . . The actor, the unpredictable person is still out there. And
mother is clearly experiencing some kind of pressure . . . ."

On September 22, 2015, the court entered an order stating, "The court does not

find [section] 364, [subdivision] (c) requirements have been met as fully stated on the

record." The court found that "conditions still exist which justify initial assumption of

jurisdiction under section 300, and/or conditions are likely to exist if supervision is

withdrawn . . . ." The court ordered the Agency to investigate the issue of Graciela's

anxiety and her choice of marijuana and the safety plan. The court placed Andrew with

Graciela on the condition she follow all previous court orders including random drug

testing.

On October 7, 2015, Graciela timely appealed from the order denying her request

to terminate jurisdiction.

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 DISCUSSION

I. THE ORDER REFUSING TO TERMINATE JURISDICTION IS SUPPORTED BY
SUBSTANTIAL EVIDENCE

A. The Standard of Review

"Orders made pursuant to section 364 are reviewed for substantial evidence." (In

re J.F. (2014) 228 Cal.App.4th 202, 209.) Under the substantial evidence standard of

review, the appellate court does not reweigh the evidence or evaluate the credibility of

witnesses. We draw all reasonable inferences in support of the findings and view the

record in the light most favorable to upholding the court's order. (Ibid.)

B. Applicable Law

"[S]ection 364 governs status review hearings for dependent juveniles who remain

in the physical custody of their parents or guardians." (In re Aurora P. (2015) 241

Cal.App.4th 1142, 1146 (Aurora P.), fn. omitted.) "[S]ection 364 also applies in cases

such as this, where children have been removed from the physical custody of a parent but

later returned." (Id. at p. 1155, fn. 9.)

"At the section 364 review hearing, 'the court is not concerned with reunification,

but in determining "whether the dependency should be terminated or whether further

supervision is necessary."'" (Aurora P., supra, 241 Cal.App.4th at p. 1155.) Section 364,

subdivision (c) (section 364(c)) provides that the juvenile court "shall terminate its

jurisdiction unless the social worker or his or her department establishes by a

preponderance of evidence that the conditions still exist which would justify initial

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assumption of jurisdiction under Section 300, or that those conditions are likely to exist if

supervision is withdrawn."

"Thus, when the social services agency opposes termination of dependency

jurisdiction, it clearly bears the burden of proof to show the existence of the conditions

section 364(c) specifies must be proven to support retention of dependency jurisdiction."

(Aurora P., supra, 241 Cal.App.4th at p. 1146.)

Here, however, the Agency took the opposite position and recommended

dependency jurisdiction be terminated. It was counsel for Andrew, the dependent child,

who opposed that recommendation. Because the dependent child opposed termination of

dependency jurisdiction, he bore the burden of establishing by a preponderance of the

evidence that "the conditions still exist which would justify initial assumption of

jurisdiction under Section 300, or that those conditions are likely to exist if supervision is

withdrawn." (§ 364(c); Aurora P., supra, 41 Cal.App.4th at p. 1147.) As explained in

Aurora P., "[w]hile the statute speaks in terms of the social worker or department

establishing the basis for continuation of dependency jurisdiction, the first sentence of

section 364(c) makes clear that the parent, the guardian, or the child may offer evidence

on that question." (Id. at p. 1155.) The juvenile court is not bound by the

recommendation of the social worker or social services agency, but makes an

independent determination whether to terminate or retain jurisdiction based on the

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preponderance of evidence. (Ibid.; accord, In re J.F., supra, 228 Cal.App.4th at pp. 211-

212.)7

The second sentence of section 364(c) provides, "The court shall terminate its

jurisdiction unless the social worker or his or her department establishes . . . that the

conditions still exist which would justify initial assumption of jurisdiction under Section

300, or that those conditions are likely to exist if supervision is withdrawn." In In re J.F.,

supra, 228 Cal.App.4th at page 210, Division Five of the Second District concluded,

"The language of section 364 does not literally require that the precise conditions for

assuming jurisdiction under section 300 in the first place still exist—rather that

conditions exist that 'would justify initial assumption of jurisdiction.'" However, in In re

D.B. (2015) 239 Cal.App.4th 1073, 1085, Division Three of the Fourth District disagreed,

stating, "By using the phrase 'the conditions still exist,' the Legislature meant the

conditions existing at the time of initial assumption of jurisdiction continued to exist at

the time of the hearing, not that new conditions have arisen. Thus, we believe the better

7 In its brief, the Agency states the juvenile court "erroneously placed the burden of
proof on the Agency," but contends such error was harmless. However, the record does
not establish the court misallocated the burden of proof. Initially, in orally stating its
reasons for ruling, the court stated, "I do not find that the department has established by a
preponderance of the evidence that conditions . . . which would justify initial assumption
of jurisdiction under section 300, or that those conditions are likely to exist if supervision
is withdrawn." However, later the court clarified its ruling, stating, "I do find by a
preponderance of the evidence that conditions still exist which would justify the initial
assumption of jurisdiction under section 300, and conditions are likely to exist if
supervision is withdrawn." This statement is not inconsistent with Andrew bearing the
burden of proof.
In any event, Graciela does not assert the order should be reversed because of any
misallocation of the burden of proof. Rather, she contends Andrew bore the burden of
proof and failed to meet it.
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interpretation of section 364(c) is that the court must terminate jurisdiction if the

conditions that justified taking jurisdiction in the first place no longer exist."

Here, we need not resolve this issue because, as explained post, the juvenile court's

determination to not terminate jurisdiction is supported by substantial evidence on even

the more restrictive standard, i.e., the conditions that justified initial assumption of

jurisdiction—the threats of domestic violence and substance abuse—still continued to

exist at the time of the section 364(c) hearing.

C. Substantial Evidence Supports the Court's Order

Substantial evidence supports the juvenile court's determination to not terminate

jurisdiction. Although the instigating cause of Andrew's dependency was domestic

violence, drug abuse by both Father and Graciela permeated these proceedings from day

one.

For example, the declaration in support of the protective custody warrant for

Andrew issued in October 2013 states, "[T]he Agency is recommending that the case be

brought to the attention of Juvenile Court and Andrew be detained in out of home care in

order for the parents to understand the consequences of exposing the child to a controlled

substance and risk of harm they pose to the child based on their history of domestic

violence."

Moreover, during the Agency's initial investigation, Graciela admitted a history of

marijuana and methamphetamine use and stated she was willing to drug test. She began

smoking marijuana at age 14 and continued, by her own report, through age 18 (she was

19 years old when dependency proceedings began). Graciela began smoking

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methamphetamine at age 16 and claims to have stopped in September 2011. Given her

substance abuse history, from inception Graciela's case plan included substance abuse

programs and frequent drug tests.

Graciela made substantial progress in some components of her case plan.

However, she was frequently not in compliance with the drug testing component of her

case plan and court orders. For example, during the first review in May 2014, Graciela

did not show for two out of three drug tests. In August 2014 Graciela again failed to drug

test. She missed another drug test in December 2014. Despite promising to comply with

all required drug tests, in the June 2015 reporting period, Graciela was a no show in two

of four drug tests. In July 2015 she again failed to appear for two drug tests. The August

2015 report states Graciela was a no show for two out of four drug tests. The social

worker concluded the substance abuse part of her case plan "cannot be evaluated." The

September 2015 report—submitted about a week before the court's ruling that Graciela

appeals here—states she was a no show for four drug tests.

On this evidence alone, the juvenile court properly concluded under section 364(c)

that "the conditions still exist which would justify initial assumption of jurisdiction under

Section 300, or that those conditions are likely to exist if supervision is withdrawn."

Moreover, there is also substantial evidence that the threat of domestic violence by

Father—a condition that existed when the court first declared Andrew a dependent—still

existed at the time of the section 364(c) hearing. In June 2015, when Graciela was living

in the paternal grandparents' home with Andrew, Father committed two separate acts of

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domestic violence. One ended in a physical fight between Father and Graciela's cousin.

In the other, Graciela was injured trying to escape from Father.

Thus, from inception of the case through the time of the section 364(c) hearing,

Father remained a domestic violence threat. Moreover, he knew where Graciela and

Andrew were living and knew when they would be home. The juvenile court properly

exercised its discretion based on substantial evidence in concluding, "mother continues to

remain in a precarious situation . . . she is relying on Father's family, and they obviously

have continued communications."

Graciela's contention that the court's order is unsupported by substantial evidence

is not persuasive. She contends Andrew was removed from custody only because of

domestic violence issues, stating, "Domestic violence was the condition that existed and

the reason for the initial assumption of section 300 jurisdiction." She asserts the order

should be reversed because there was no domestic violence threat at the time of the

section 364(c) hearing.

Graciela is incorrect on both issues. Domestic violence was not the only reason

for the exercise of dependency jurisdiction. In declaring Andrew a dependent child of the

juvenile court, the court stated it considered the Agency's reports dated October 23, 2013

and November 12, 2013. The October 23, 2013 report states Graciela admitted using

marijuana and crystal methamphetamine, and stated she would drug test. The November

12, 2013 report states Graciela began using crystal methamphetamine at age 16 and

smoked marijuana. Under the section entitled, "Child's Safety in the Home," the social

worker stated it is not safe for Andrew to return home with his parents because of

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"substance abuse issues and domestic violence issues." Of extraordinary concern, the

report states that Graciela "appears to minimize her previous drug history."

Moreover, substantial evidence supports the juvenile court's finding that the threat

of domestic violence was not resolved. Four months before the section 364(c) hearing,

Father confronted Graciela at the home she and Andrew were living in, got in a fist-fight

with Graciela's cousin, chased Graciela into a bathroom where she had to barricade

herself for safety, and stole her purse and its contents. Father remained at large and

refused to comply with any components of his case plan. In January 2015 the court

found Father was "circumventing" court orders. At the time of the section 364(c)

hearing, Graciela was living in the home of the domestic violence perpetrator's parents.

As the court aptly noted, "The actor, the unpredictable person is still out there. . . .

[¶] . . . [¶] And as long as mother remains in the circumstance where she lives at a

residence known to the domestic violence perpetrator, where he has a strong relationship

and is in communication with other persons in the home, this is a higher risk situation

than others."

Graciela also contends the court based its decision on a "new development"—

Graciela's recent use of prescribed marijuana to treat anxiety. Graciela contends these

facts are insufficient to establish dependency jurisdiction under section 300, subdivision

(b), and thus cannot be used to retain jurisdiction under section 364(c).

Graciela's argument is not persuasive because it takes too narrow a view of the

evidence. The juvenile court properly considered the totality of circumstances in

determining whether to terminate jurisdiction under section 364(c). (Aurora P., supra,

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241 Cal.App.4th at p. 1155 [the juvenile court makes its determination under section

364(c) "'based on the totality of the evidence before it'"].) The totality of the evidence

presented at the hearing established Father was a continuing threat of domestic violence.

Moreover, Graciela was willfully defying court-ordered drug testing, despite her history

of marijuana and methamphetamine abuse.

In light of these preexisting conditions, the court properly considered and

expressed concern about Graciela's recent use of marijuana to treat her self-diagnosed

anxiety. Graciela's anxiety and marijuana use exacerbated the domestic violence and

drug abuse conditions that required the exercise of dependency jurisdiction in the first

place.

In her reply brief, Graciela also asserts Andrew did not sustain his burden of proof

because his attorney asked only one question and "did not present any evidence."

However, we review the "entire record" for substantial evidence, regardless of which

party offered any particular evidence. (See In re Megan S. (2002) 104 Cal.App.4th 247,

251 ["If, on the entire record, there is substantial evidence to support the findings of the

juvenile court, we uphold those findings."].) Moreover, the juvenile court is required to

make its determination "'based on the totality of the evidence before it.'" (Aurora P.,

supra, 241 Cal.App.4th at p. 1155.) In determining whether to terminate jurisdiction

under section 364(c), the court properly considered all of the evidence, regardless of

which party offered it.

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 D. The Agency Did Not Forfeit Its Appellate Argument

In her reply brief, Graciela contends the Agency "forfeited" its appellate

arguments because in the juvenile court, the Agency advocated the court should terminate

jurisdiction. This argument is unavailing for at least two reasons. First, it is not

necessarily inconsistent to advocate one factual position in the trial court, and then on

appeal concede that the court's adverse determination is supported by substantial

evidence. This is because the substantial evidence standard of review indulges in every

reasonable inference to uphold the judgment and defers to the trier of fact's credibility

determinations. (See Cardinal Health 301, Inc. v. Tyco Electronics Corp. (2008) 169

Cal.App.4th 116, 146.)

Perhaps more importantly, the goals of the California dependency system are to

ensure the child's safety, protection, and physical and emotional well-being, and when

possible, to preserve and strengthen the family. (Cal. Juvenile Dependency Practice

(Cont.Ed.Bar 2016) How Children Enter the Dependency System, § 2.1, p. 38.) The

Legislature has determined, "The provision of a home environment free from the negative

effects of substance abuse is a necessary condition for the safety, protection and physical

well-being of the child." (§ 300.2.)

In light of these policies, if the Agency did change its fundamental view of this

case after the hearing, that change should be commended, not condemned. The Agency's

reputation for credibility and justice will foster its success in court in the long run better

than will a blind allegiance to an inappropriate approach to a particular case taken in the

juvenile court.

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 DISPOSITION

The order is affirmed.

NARES, J.

WE CONCUR:

HUFFMAN, Acting P. J.

O'ROURKE, J.

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