Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Super. Ct. No. SWJ010304, Michael J. Rushton, Judge.
Daniel L. Vinson for Petitioner.
No appearance for Respondent.
Pamela J. Walls, County Counsel, and Julie Koons Jarvi, Deputy County Counsel, for Real Party in Interest.
OPINION
HOLLENHORST, Acting P.J.
INTRODUCTION
In this case, D.P. (Mother) seeks an order directing the superior court to grant her an additional period of reunification services with respect to her child, A.P. We find that the trial court properly found that Mother had failed to participate and make substantial progress toward reunification, and that there was no substantial probability that the child might be safely returned to her in another six months. As a result, we deny the petition.
Father is not presently involved in the matter and is not a party to this petition.
STATEMENT OF FACTS
A.P. was detained by the Riverside County Department of Public Social Services (Department) on August 26, 2010, when he was three months old. Mother had recently arrived from Nebraska—where it was reported there was an open child protective services case. A social worker had first responded to a report of neglect a week earlier. At the time, she observed that the child had a rash on his neck and his skull appeared to have become flattened due to the child’s having been laid on his back for long periods. Mother, reported to be mildly mentally retarded, was living with her current boyfriend and a man named Robert, a parolee who had been convicted of abusing a child and whose parole conditions forbade association with infants. Although Mother had adequate supplies for the child, she did not seem to know how to hold him and fed him by propping a bottle against his crib, creating a risk of choking him and also creating poor hygiene if milk dribbled onto his neck, causing or contributing to the rash. Mother’s boyfriend reported a history of depression and self-mutilation.
As the social worker was leaving, Robert’s girlfriend approached her and informed her that Mother and her boyfriend fought constantly and that the baby was left to cry “all night.” She confirmed that A.P. was left in a child seat for long periods without having his position changed, and said that she had warned Mother of the risk of choking when the baby was fed from a propped-up bottle.
The social worker at that time elected to establish a “safety plan” maintaining A.P. with Mother. A medical appointment was made and a cream prescribed for the rash on the child’s neck; the social worker assisted Mother with her Medi-Cal application. However, during a telephone conversation a week later, her boyfriend yelled in the background, “‘You better stop propping... bottles.’” Mother eventually admitted that she had considered whether caring for the child was too much for her but said she did not want to risk not being able to see him. After being informed of the possibility of reunification services and regular visits, Mother agreed to have A.P. placed in a foster home while protective proceedings began.
At a hearing on September 22, 2010, A.P. was found to be a dependent child, and services were ordered for Mother. The social worker’s report prepared for the six-month hearing (Welf. & Inst. Code, § 366.21, subd. (e)) indicated that Mother was pregnant again and was due to give birth in May. Mother told the social worker that her boyfriend had become physically abusive and threatened to “‘gut me like a pig’” or “‘drag me behind a car until he received custody of the... baby.’” Eventually she went to a women’s shelter where she was still residing. Mother was visiting with A.P. regularly, and was reported to have a “child friendly personality.” However, Mother had difficulty making appropriate care decisions. For example, Mother would not change a wet diaper until reminded by staff, and then she would change the diaper every 30 minutes whether necessary or not. The social worker also reported that Mother overreacted to small issues concerning the child’s health, and would call her own mother in Nebraska, setting in motion a series of increasingly hysterical calls until the social worker could reassure all parties. Mother was participating in parenting classes, although the social worker expressed concern over her ability to benefit from them. Nevertheless, the social worker indicated that there was a substantial probability of return within six months.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
By May 20, 2011, however, this optimistic prediction had foundered on reality. In some respects, the intervening events appeared favorable: the maternal grandfather had, literally, won the lottery to the tune of $250,000. However, a psychological report dated April 18, 2011, indicated that Mother was wary of being candid about herself, refused to acknowledge that her care of A.P. had been substandard, and was unable to accept or acknowledge her limitations. The evaluator also described Mother as an unreliable historian, noting that most of the tests administered returned “invalid” results due to her apparent untruthfulness. The social worker informed the court that despite the recommendation that Mother work on self-awareness, she insisted on using her counseling sessions to “vent” and insist to the counselor that the Department’s documented reasons for detaining the child were not true. It had also been learned that A.P. was showing signs of developmental delays. The social worker now recommended that no further services be offered.
By the time the six month hearing was actually held on May 25, 2011, matters had changed yet again. Mother testified that she had completed two parenting classes, including one focusing on infants and toddlers. She admitted that in the past she had been “selfish” and had been neglectful in her care of A.P. However, it was also brought out that after telling the social worker that she was due for an induced Caesarian section, she had flown to Nebraska to give birth to her second child out of fear that the Department would give the child to its father, her ex-boyfriend. Although the record is not clear on the point, apparently her mother’s involvement in this deception derailed what had been a plan to place A.P. with the maternal grandmother. When asked if she had been honest with the social worker, Mother replied, “[f]or the most part.” Mother also admitted that she had made no effort to visit with A.P. since late in April.
In deciding to terminate services, the trial court relied in part on Mother’s recent behavior, which it felt showed a continuing failure to take responsibility and inability to recognize the effects of her impulsive actions.
DISCUSSION
In challenging the ruling and the decision to set a permanency planning hearing (§ 366.26), Mother argues that the evidence shows that she did participate in and benefit from her services, and that there is a reasonable chance that she would be able to reunify with A.P. if given another six months of services. We disagree.
With respect to children who were removed from parental custody while under the age of three years, section 366.21, subdivision (e), provides that at the six-month hearing the child shall be returned to the parent unless return would create a “substantial risk of detriment” to the child, and that the parent’s failure to participate in reunification services or to make “substantive progress” is prima facie evidence of detriment. The finding of failure to participate or failure to make progress is to be based on “clear and convincing evidence.” (Ibid.) If this finding is appropriately made, the court may nevertheless extend services for an additional six months, but only if it finds a “substantial probability” that the child may be returned to the parent at the end of that six months. (Ibid.)
Mother argues that the evidence was not “clear and convincing” that she failed to participate and benefit, noting that she did complete parenting classes and was in counseling. An appellate court reviews an order determining whether or not to extend services for abuse of discretion. (In re Angelique C. (2003) 113 Cal.App.4th 509, 523-524.) Although the trial court standard is “clear and convincing evidence, ” when we review the decision an abuse of discretion is established only if there is no substantial evidence to support the trial court’s conclusion. (In re William B. (2008) 163 Cal.App.4th 1220, 1227.)
We agree with Mother that she did participate on a reasonably consistent basis—at least until her new pregnancy and delivery interfered with her ability to pursue reunification. However, “substantial evidence” supports the determination that she failed to make substantive progress toward reunification. Although at the six-month hearing Mother said all the right things concerning her responsibility for the child’s situation, her decision to fly back to Nebraska to give birth—arguably a risk to her unborn child, although she insisted that her doctor approved the trip—demonstrated a continuing inability to understand how her conduct affected her children’s lives and an inability to deal with difficult situations. Her plan to keep her new infant out of the “clutches” of the Department was apparently formulated and carried out without any realistic evaluation of the probable consequences to (at the least) her relationship with A.P. And contrary to Mother’s claim that this sole incident led to the denial of further services, such a denial had already been recommended by the social worker (see ante) before the worker was aware that Mother had secretly run off to Nebraska.
Insofar as the Department’s response relies on the social worker’s expressions of “concern, ” and statements in the reports such as “[Mother] does not appear to have the ability to care for her child without assistance, ” we have considered such statements only insofar as they are supported by facts in the record.
Furthermore, there was evidence that Mother was not making use of her counseling sessions to learn more about herself and acquire coping skills, but merely to “vent” and make herself feel better. There was evidence (see the diaper-changing issues) that she was at the very least inconsistent in her care of the child and was not properly able to interpret his behaviors. The psychological report indicated that she was resistant to candid discussion about herself. All this clearly constitutes substantial evidence that Mother was not making substantive progress through her participation.
With respect to the second prong of the trial court’s decision—that there was no substantial probability that the child might be returned in six months even if Mother received more services—we similarly find no error and no abuse of discretion. We acknowledge that unlike the situation at a 12-month hearing, when additional services are appropriate only if the trial court finds a substantial probability that the child will be returned in six months, the court may continue services at the six-month hearing if there is a substantial probability that the child may be returned—in other words, a substantial possibility. (Cf. § 366.21, subds. (e), (g); M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 181.) However, this does not assist Mother.
Before attacking the trial court’s exercise of discretion, Mother argues that the order must be reversed because the trial court “failed to exercise its discretion when it terminated reunification services....” There is nothing in the record to suggest that the trial court was unaware of its options. (Cf. In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1794 [trial court unaware of its discretion to continue services beyond the 18-month limit where adequate services had not been provided].)
In short, A.P. was found with physical ailments directly relating to poor care. At the time the home was clearly inappropriate due to the presence of the child-abusing parolee, Robert. Furthermore, Mother’s relationship with her new boyfriend was tenuous and soon turned abusive. It is reasonable to believe that she came to Nebraska in order to avoid a child protective services inquiry in that state—an inference supported by her conduct in fleeing California to prevent the Department’s interference with her second child.
Although at the time of the six-month hearing Mother was apparently living off handouts derived from the lottery windfall, she had shown no personal initiative toward self-sufficiency or the ability to provide a safe home.
Mother had not progressed to the point of demonstrating improved caretaking skills and her abrupt departure for Nebraska did not help this situation. Nor had she demonstrated any ability to understand how she could best really serve the child’s interests; instead, she apparently willingly abandoned him in order to “protect” her unborn second child. She had not addressed her personal issues—any of them—with her counselor.
The record is not clear as to when or why Mother returned, or whether she brought her newborn with her. However, if her intent was to keep the new child away from the Department, it is obviously inferable that she was willing to lose contact with A.P. in order to do so.
Given Mother’s history of impulsive behavior, avoidance of responsibility, and resistance to exploring these issues, it is not reasonable to suppose that a further six months of services would raise even a substantial possibility that the child could safely be returned to her custody. The trial court did not abuse its discretion in refusing to extend additional services.
DISPOSITION
The petition is denied.
We concur: McKINSTER, J., CODRINGTON J.