Filed 12/4/18 In re A.P. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Michael J. Imhoff, Commissioner. Affirmed.

Amy Z. Tobin, under appointment by the Court of Appeal, for Appellant, a Minor.

Neil R. Trop, under appointment by the Court of Appeal, for Defendant and Respondent W.D.

Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Respondent C.P.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and Respondent.

A.P., a minor, appeals from an order at the six-month review hearing granting her mother (Mother) an additional six months of reunification services. The San Diego County Health and Human Services Agency (the Agency) argues the appeal is moot. We agree the appeal is moot but exercise our discretion to address the merits and affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Dependency Case Related to Sibling, C.P.

A.P.'s parents, Mother and Father, first came to the Agency's attention in August 2016, prior to A.P.'s birth, when Mother took their then eight-month-old child, C.P., to the emergency room for a swollen leg. The treating physician conducted a skeletal survey on C.P. and discovered several fractures at various stages of healing, including a right parietal skull fracture, a fracture of the left proximal femur, a fracture of the left distal femur, a fracture of the base of the first metatarsal in the left foot, and a fracture of the right proximal femur. C.P. also had bruising on his face. The parents could not identify the source of the injuries but said that C.P. had been playing "roughly" with his toys and that a doctor had recently been rough with C.P.'s legs while administering an immunization. Based on the injuries and the parents' lack of viable explanation, the physician concluded there was a high level of likelihood that C.P. had been physically abused.

The Agency opened an investigation and interviewed Mother and Father. Mother reported she was the primary caregiver for C.P. and she did not leave him alone with any other adults. She did not know how C.P. was injured but suggested the injuries could have occurred when a baby monitor fell on C.P.'s head, when the physician was rough with C.P.'s legs during immunizations, or when C.P. fell off the bed two or three months earlier. Father reported that he sometimes got up with C.P. at night but denied having ever harmed the child.

The juvenile court removed C.P. from Mother and Father's care and placed him with extended family. The court initially ordered reunification services for both parents. They completed an in-home parenting class but Mother quit her child abuse class after just a couple of weeks because she did not like it and neither parent engaged in any other services. In June 2017, the juvenile court discontinued services, terminated Mother and Father's parental rights as to C.P., and granted C.P.'s caretakers prospective adoptive parent status.

Birth and Removal of A.P.

In August 2017, the Agency received a referral indicating that Mother had given birth to a second child, A.P. Mother had not previously disclosed her pregnancy, but it had been apparent that she was pregnant. Concerned for the safety of the newborn in light of Mother and Father's failure to address the abuse of C.P., the Agency conducted an unannounced home visit when A.P. was just a few days old. Mother, Father, and A.P., along with several of Father's family members, were living in the same home in which C.P. had lived. The parents identified Father as A.P.'s biological father.

The social worker noted Father had bloodshot eyes and slow speech, and Father admitted he had used marijuana shortly before the visit. He said he used marijuana approximately one or two times a day but was trying to cut back and only smoked outside while A.P. was sleeping. When the social worker asked Father if he knew why the Agency was conducting a visit, he said, "[b]ecause of what happened to our son." He did not offer anything further regarding the prior case but said he knew they needed to be checking on A.P. more and he planned on getting a baby monitor.

The social worker asked Mother about the previous case. Mother said when she found out she was pregnant with A.P., she believed she had been given another chance and wanted to focus on her pregnancy. She did not participate in services for C.P. because she believed C.P. would be well taken care of with the family members that he was placed with and did not want the "drama" or "stress" of court affecting her pregnancy with A.P. Mother also stated she did not like the child abuse class, the Agency had not provided clear instructions as to what was required of her, and she was depressed after C.P. was removed. She indicated she was no longer depressed and was now willing to do anything necessary to keep A.P.

The social worker asked how Mother could ensure A.P. would not be physically abused, given the history with C.P., and Mother responded, "I'm not an abusive person. I don't necessarily know what happened." She said she wanted to move past that and was taking classes to make sure she did things right this time. She noted C.P. had slept in the bed with her and because she had accidentally rolled over on him, she put A.P. to sleep in a pack and play in the room. She also said C.P. had fallen off the bed and that she would hold him while cleaning and he would "bonk his head on the table and everything." She reiterated she did not want to make mistakes or lose A.P. Mother admitted she and Father fought a lot when they had C.P. and that things sometimes got physical. She maintained that after C.P. was removed their fighting had not been a concern as counseling had helped them. She also admitted to prior marijuana use, but said she had not used any drugs for over a year.

The Agency filed a dependency petition on A.P.'s behalf and alleged there was a substantial risk A.P. would be abused or neglected given the severe abuse and removal of sibling C.P. The court found the Agency had made a prima facie showing on the petition, removed A.P. from Mother and Father's care, and ordered reunification services and liberal supervised visitation for both parents.

Mother's Initial Response and Participation in Services

Shortly thereafter, on September 7, 2017, the social worker met with each of the parents, separately. Mother reiterated she did not really understand the process when they went through it with C.P., she knew C.P. was happy and attached to his caretakers, and she had a difficult pregnancy with both children and was therefore focused on A.P.'s health when she decided not to participate in services for C.P. However, she remained committed to doing everything she needed to do to ensure A.P.'s return. Father said he had not participated in services during C.P.'s case because it was confusing and because of his emotional state at the time. He indicated he wanted to participate this time and would like to do the same in-home parenting class they did last time.

Mother and Father also began twice a week supervised visitation with A.P. They arrived early to each visit and took turns holding A.P., and Mother breastfed A.P. and brought extra breastmilk for the foster parents to take home. The social worker had to remind the parents to support A.P.'s neck and burp her after eating, but otherwise neither the social worker nor the foster parents noted any significant issues. The parents also made efforts to engage in counseling as well as parenting and child abuse education.

The Agency remained concerned the parents still had failed to explain how C.P. sustained his injuries. However, on October 2, 2017, Father told the social worker that he had caused at least some of the injuries to C.P. by twisting his legs. He said he did not do this on purpose, but admitted this happened a couple of times a week over the course of a two- to three-month period, beginning when C.P. was approximately six months old.

The social worker asked if Father also caused the injuries to C.P.'s feet and Father said, "I don't know. I don't remember doing anything to his feet. I probably did but I don't remember because I don't want to remember." Regarding the head injuries, Father said he still believed those occurred when C.P. fell off the bed. Father noted he had disclosed this same information to Mother the night before. Although Mother was upset, did not want to talk to him, and intended to call the police, Father had convinced her to let him tell the social worker instead. The social worker asked Father why he came forward now and Father said he wanted A.P. to be with Mother and that A.P. did not deserve to be separated from Mother for something that he did.

The social worker interviewed Mother the following week and Mother confirmed she would have Father put C.P. to bed so that she could go outside and smoke cigarettes or marijuana. She knew Father would be frustrated with her but did not think he was frustrated with C.P. She said Father was in the process of moving out of the house, and that she had plans to get a job to support herself and A.P. She asked that future visits with A.P. be held separately as she was trying to distance herself from Father and no longer wanted to be in a relationship with him. When asked what led Father to disclose the abuse, Mother stated their lawyer had told them "someone needs to admit what they did" and she had then confronted Father because she knew that she had not done anything to harm C.P.

Shortly thereafter, the parents began having separate visitation. The foster parents reported the exchanges between Mother and Father were awkward but cordial. Mother continued to pursue services.

Jurisdictional and Disposition Hearing

In an addendum filed on November 30, 2017, the day of the jurisdictional and disposition hearing, the Agency reported Mother had begun the 52-week child abuse group treatment and was participating in an in-home parenting program as well as a public group parenting class she had found on her own. The foster parents reported visits were still going well overall, but A.P. was becoming more aware of her surroundings and would cry more frequently. When this happened, Mother would try to calm A.P. and would ask the foster parents what techniques they used to do so. Father had missed the last three visits and Mother told the social worker she planned to discuss this with him because she wanted to take his visitation time if he missed it. Mother expressed her desire to continue services and to reunify with A.P. but stated she was concerned that A.P. was becoming attached to the foster parents and would not be comfortable with her if returned.

Regarding their living situation, Father reported he was working on moving completely out of the family home, but he had not yet found other permanent housing. During an unannounced visit to the home, Mother told the social worker Father visited most days because his belongings were still in the home but indicated he stayed at a friend's house in the evenings. When asked about his communication with Mother, Father reported they talked about things they needed to talk about, including visitation, court dates, and medical appointments, but otherwise had minimal interactions. The Agency recommended that neither parent receive reunification services given the history with C.P. and the fact the parents only began engaging in services a year later when A.P. was removed.

Mother testified at the November 30th hearing and the court noted she expressed "deep insight and real concern about her daughter attaching to the caretakers" and "a very emotional response . . . that I interpret [as] being remorse" when speaking about C.P. The court acknowledged Mother had demonstrated addictive and disqualifying behavior during the case concerning C.P. but found she was engaged in services in the present case and appeared to be enthusiastic about gaining insight and knowledge. The court noted some services had only recently begun and it could not yet determine whether Mother's efforts would be sufficient. Overall, the court concluded it would be in A.P.'s best interest to pursue reunification with Mother, but not Father, and ordered continued services for Mother only through the six-month review hearing.

First Six-Month Period

Over the course of the following six-month period, Mother attended all visits available to her with A.P. and often took Father's visitation as well when he failed to attend. The foster parents indicated A.P. cried at each visit and Mother had difficulty feeding A.P. from a bottle, but Mother attempted to comfort her, tried different strategies to problem solve, and eventually began assessing A.P.'s needs at the beginning of the visits.

A new social worker took over the case and observed, in a report dated May 29, 2018, that A.P. was often distressed, crying and anxious during visits with Mother but calm and happy with the foster parents. The social worker assigned a visitation coach to assist Mother. Mother continued to struggle for some time but, eventually, her ability to sooth A.P. did improve. Mother again expressed concerns about bonding with A.P. and requested additional visitation time. The agency concluded additional time was not warranted given the difficulties Mother had soothing and feeding A.P.

The leader of Mother's child abuse treatment group indicated Mother had attended 14 sessions, had no absences, and regularly participated in sessions. However, Mother had reported during group meetings that visits with A.P. were going well, raising concerns she was not being honest and transparent during sessions. Mother's individual therapist stated Mother had not missed any sessions and she "accepts responsibility [for the removal of C.P.] and has stated that she knows she chose marijuana over her child." Mother wrote an apology letter to C.P., which the therapist provided to the Agency. In the letter, Mother said, "I am sorry for the abuse that has happened to you . . . because of my unprotectiveness [sic] as a parent you will have struggles." She accepted responsibility for the abuse in the letter but also stated she wished she had known about the injuries so she could have provided C.P. with a safer environment.

In March, C.P.'s caregivers contacted the Agency to express several concerns about A.P.'s case, including that Mother remained in constant contact with Father, it appeared Father was still living in the home with Mother, and C.P. had shown signs of being afraid of Mother during visits the caregivers had previously supervised between Mother and C.P. The Agency remained concerned Mother was not being honest about her relationship with Father, Mother may have caused some of the injuries to C.P., and Mother continued to lack understanding of how her past actions and inactions caused C.P. to be severely abused. Therefore, as of late May 2018, the Agency recommended the juvenile court discontinue services for Mother.

However, on June 5, 2018, shortly before the six-month review hearing, the Agency submitted another addendum and changed its recommendation to expand reunification services for Mother. The Agency explained it remained concerned the injuries to C.P. had not been fully explained and Mother continued her relationship with Father, but noted that Mother was taking full advantage of all services offered to her. The Agency also remained concerned Mother continued to have difficulties feeding and soothing A.P. without assistance, A.P. was afraid or distressed during visits, and A.P. was not attaching to Mother. It hoped that extra time would allow the relationship between Mother and A.P. to improve.

Six-Month Review Hearing

The social worker testified at the six-month review hearing and explained that visits between Mother and A.P. had been difficult but at the last visit she observed in May, A.P. did not cry and Mother was able to feed A.P. a few ounces of milk from a bottle. Mother also testified and admitted she had contact with Father after she found out he had abused C.P. but stated the conversations were solely about visitation and Father's continued drug use. She said she was confused at first because some people had told her she needed to remain in communication with Father for coparenting reasons and the foster parents had asked her to communicate with Father. She stated she had stopped communicating with him altogether in April. She also explained the Agency had switched the order of visits so her visit would occur first, and she could take Father's time if he did not show up, thereby eliminating the need for her to communicate with Father about visits.

Minor's counsel argued against continued services for Mother. Counsel conceded Mother had participated regularly in services but argued Mother had not made substantive progress. Counsel suggested the court could nevertheless continue services for Mother if it found there was a substantial probability A.P. would be returned to Mother within six months, but asserted there was no such probability because visits were not going well.[1]

The juvenile court found Mother had been participating regularly in services and had made progress in those services. Although concerns remained about her contact with Father, the court found Mother's testimony credible and believed she was ready to take the next step on her own, without Father. The court observed there were several areas Mother still needed to address, but stated it could not find Mother had not made substantive progress under the applicable clear and convincing evidence standard. The court stated it did not believe a finding regarding the likelihood of reunification was necessary under the statute as A.P.'s counsel had suggested. But the court stated it would find there was a substantial likelihood of reunification in any event because Mother had gained maturity and was continuing to make progress despite some terribly difficult issues. The court therefore ordered an additional six months of reunification services for Mother.

The minor, A.P., appeals.

DISCUSSION

A.P. contends there was insufficient evidence to support the juvenile court's finding at the six-month review hearing that there was a substantial probability A.P. would be returned to Mother's care within six months and that the juvenile court abused its discretion when it ordered additional reunification services for Mother. The Agency asserts the appeal is moot.

I

Mootness

An appeal becomes moot when, because of subsequent acts or events, the action no longer presents a justiciable controversy and the appellate court is unable to grant effective relief. (In re Christina A. (2001) 91 Cal.App.4th 1153, 1158.) However, an exception may be made when the appeal presents a question of continuing public importance, which is capable of repetition, yet evading review. (Ibid.) This can sometimes occur in dependency cases when the statutory timelines preclude the appellate court from receiving the record and briefing necessary to decide an issue before additional proceedings render it moot. (Id. at p. 1159.) Thus, even when subsequent events render an issue moot, the appellate court may exercise its independent discretion to address the merits, particularly if the case presents a material issue that is likely to recur, either between the actual parties or more broadly. (In re N.S. (2016) 245 Cal.App.4th 53, 59.) In the juvenile dependency context, the appellate court decides whether an appeal has been rendered moot, and whether to exercise this discretion, on a case-by-case basis. (In re Dani R. (2001) 89 Cal.App.4th 402, 404.)

Here, A.P. contends the juvenile court erred by ordering an additional six months of reunification services for Mother at the six-month review hearing. The Agency asserts the appeal is moot because the services have already been rendered and the 12-month hearing date, previously set for November 1, 2018, passed before briefing was complete. In her reply brief, A.P. contends the appeal is not yet moot because the juvenile court has since set a contested 12-month review hearing date for December 5, 2018. While this opinion may precede the December 5 hearing date by a matter of days, this court has no ability to rescind the previous six months of services that have already been received. Accordingly, we agree that the issue A.P. raises on appeal has effectively been rendered moot. (See In re Pablo D. (1998) 67 Cal.App.4th 759, 761.) Regardless, because there is a likelihood that the issue will recur and because we would affirm in any event, we exercise our discretion to address the merits of the controversy.

II

The Juvenile Court Did Not Err by Extending Services for Mother

Welfare and Institutions Code section 366.21, subdivision (e)[2] governs the proceedings of the juvenile court at the six-month review hearing. Subdivision (e)(3) states, in part, "[i]f the child was under three years of age on the date of initial removal . . . and the court finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan, the court may schedule a hearing pursuant to section 366.26 within 120 days. If, however, the court finds there is a substantial probability that the child . . . may be returned to his or her parent or legal guardian within six months or that reasonable services have not been provided, the court shall continue the case to the 12-month permanency hearing." (§ 366.21, subd. (e)(3), italics added.)

Thus, by its plain language, section 366.21, subdivision (e)(3) allows the juvenile court to schedule a permanency hearing pursuant to section 366.26 if it finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in the court-ordered treatment plan. (See M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 175-176 (M.V.).) However, even if it makes this specific factual finding, the court is not required to set a section 366.26 permanency hearing. (Ibid.) And if the court does not set a section 366.26 hearing, it must continue the case to the 12-month review hearing and order the continuation of any previously ordered reunification services, with any necessary modification to the terms and conditions of those services.[3] (See §§ 366.21, subd. (e)(7), 361.5; M.V., at pp. 175-176.)

Moreover, if the court has made the required findings and contemplates exercising its discretion to set a section 366.26 permanency hearing at the six-month review hearing, subdivision (e)(3) contains an additional clause that affirmatively precludes the juvenile court from doing so if " ' "there is a substantial probability that the child . . . may be returned to his or her parent . . . within six months." ' " (Fabian L. v. Superior Court (2013) 214 Cal.App.4th 1018, 1027-1028 (Fabian L.); M.V., supra, 167 Cal.App.4th at pp. 175-176.) This secondary clause acts as a safety net, protecting parents from the premature scheduling of a section 366.26 permanency hearing based on a failure to participate in services in cases where reunification nevertheless remains substantially probable. (Fabian L., at pp. 1027-1028.)

A.P. argues at length there was insufficient evidence to support the juvenile court's finding there was a substantial probability A.P. would be returned to Mother's care within six months. However, A.P. also concedes that unless the court plans to terminate services and set a section 366.26 permanency hearing, the statute does not require the juvenile court to make any finding regarding the probability of return. (See § 366.21, subd. (e)(3); M.V., supra, 167 Cal.App.4th at pp. 175-176; Fabian L., supra, 214 Cal.App.4th at p. 1027.) That is exactly what occurred here. The court stated it could not find by clear and convincing evidence that Mother had not made substantial progress on her court-ordered treatment plan and therefore was not contemplating setting a section 366.26 hearing. Thus, the juvenile court was correct when it noted it did not need to make a finding regarding the probability of reunification within six months, and we need not address A.P.'s primary issue on appeal.

The question we must address on appeal, then, is whether the juvenile court abused its discretion in deciding not to set a 366.26 hearing and, instead, continuing the matter to the 12-month review hearing and ordering an additional six months of services for Mother. (See M.V., supra, 167 Cal.App.4th at pp. 175-176; Fabian L., supra, 214 Cal.App.4th at pp. 1027-1028.) A juvenile court should exercise its discretion to terminate services at the six-month review hearing pursuant to section 366.21, subdivision (e)(3) " 'only when "parental unfitness is so well established that there is no longer 'reason to believe that [a] positive, nurturing parent-child relationship[ ] exist[s]' [citation], and the parens patriae interest of the state favoring preservation rather than severance of natural familial bonds has been extinguished." ' " (M.V., supra, 167 Cal.App.4th at p. 183.) On appeal, we do not overturn the juvenile court's decision unless the court exceeded the limits of that discretion by making an arbitrary, capricious, or patently absurd determination. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Marcelo B. (2012) 209 Cal.App.4th 635, 642.)

Here, although we agree that serious concerns remained regarding Mother's ability to safely parent A.P., we cannot conclude that the juvenile court's decision to extend services to the 12-month review hearing was arbitrary, capricious, or patently absurd. There is no dispute that Mother failed to take responsibility or engage in services following the removal of her first child, C.P., and that her failure to do so led directly to the removal of A.P. in the present case. However, as the Agency and the juvenile court noted, Mother had begun taking responsibility and was significantly more engaged in services following A.P.'s removal.

At the time of the six-month review hearing, the Agency reported Mother was making progress in therapy, was interacting with and making progress in her child abuse group,[4] was beginning to accept responsibility for her role in the physical abuse of C.P., and was making progress in her ability to soothe and care for A.P. In light of this progress, and despite the significant concerns that remained regarding Mother's history, the Agency had recommended continued services for Mother, in the hopes that the extra time would further improve the relationship between Mother and A.P.

A.P. alleges the juvenile court nonetheless abused its discretion by granting Mother an additional six months of services for three primary reasons: (1) Mother had not fully addressed her role in C.P.'s injuries; (2) Mother was hesitant to discontinue contact with Father even after he admitted abusing C.P.; and (3) Mother was having a hard time soothing and feeding A.P. at visits. However, the juvenile court considered and addressed each of these concerns deciding to continue the case to the 12-month review hearing.

Regarding Mother's willingness to address her role in C.P.'s injuries, the court found Mother was engaged in therapy and her child abuse treatment class and was beginning to accept responsibility, which was consistent with the progress reports submitted by the child abuse group facilitator. The court acknowledged that Mother's progress was "less than stellar" on some issues, and that she would need to continue to work with her service providers to gain additional insight regarding the barriers to reunification.

Regarding the contact with Father, Mother testified she communicated with Father primarily regarding visitation, so she could take his time if he was unable to, and the foster parents had used her as an intermediary to communicate with Father. The juvenile court found this testimony credible. The court made clear that Mother needed to cease all contact with Father while she established her own ability to independently parent A.P. The court also acknowledged that coparenting could potentially require communication at some point, and that Mother had understandably been confused about whether to contact Father regarding visitation and other parenting concerns.

Regarding Mother's ability to parent A.P., the court found that Mother was gaining maturity and gaining confidence in her own ability to understand how A.P. was responding to her stimuli and environment. The Agency's final addendum report supported that conclusion. The Agency noted the last visit had gone well, that A.P. had not cried and had taken a few ounces of a bottle from Mother, and, as a result, the Agency had changed its recommendation to continue reunification services for Mother.

Overall, the juvenile court noted several issues remained that Mother had not yet fully addressed, but that Mother had also made documented progress in several other areas. After listening to Mother's testimony and finding her credible, the court was convinced that Mother had gained maturity, had made progress, and was better positioned to move forward without Father. Based on those findings, the juvenile court extended reunification services for Mother to the 12-month review hearing. Given the record here and the law's preference towards reunification whenever possible (see In re Aryanna C. (2005) 132 Cal.App.4th 1234, 1242), we conclude the court did not abuse its discretion in doing so.

DISPOSITION

The order is affirmed.

HALLER, Acting P. J.

WE CONCUR:

DATO, J.

GUERRERO, J.