Filed 12/30/13 In re M.S. CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                     DIVISION 3

In re M.S., a Person Coming Under the
Juvenile Court Law.

LAKE COUNTY DEPARTMENT OF
SOCIAL SERVICES,                                                     A138189
         Plaintiff, Appellant, and
                                                                     (Lake County
         Respondent;
                                                                     Super. Ct. No. JV 320327)
v.
D.S.,
         Defendant and Appellant;
B.S.,
         Defendant and Respondent.


         In this dependency case, two appeals have been taken from the juvenile court’s
order at the six-month review hearing. The Lake County Department of Social Services
(the Department) has appealed on the ground that the court erroneously extended services
to the 12-month review, and the mother, B.S., has appealed on the ground that the court
erroneously limited her visits to supervised visits. At this point, the 12-month review has
already occurred and custody of the minor has been returned to the minor’s father, D.S.
A new supervised visitation order has been entered with respect to the mother. Prior to
the submission of father’s responding brief, father moved to dismiss the Department’s
appeal as moot. Although the juvenile court’s order at the six-month hearing had already
become moot as to the parties in this case, we denied the motion without prejudice based

                                                             1
largely on the Department’s assertion that the case presented an important legal issue
likely to recur without appellate intervention. Respondent father’s brief, however,
corrected the misapprehension underlying the Department’s appeal, and the Department
has chosen not to submit a reply. Since the order that is the subject of this appeal has
been superseded by subsequent orders, and there is no reason to believe that the
Department’s misunderstanding is widespread, we shall dispense with the two appeals
rather summarily.
         The petition under Welfare and Institutions Code1 section 300 with respect to then
two-month-old M.S. was filed on April 9, 2012. The petition alleged, among many other
things, that the mother, D.S., had untreated mental health issues and a history of
substance abuse, that although services had been offered to her she continued to lack
basic parenting skills and on several occasions had exhibited poor judgment in caring for
the infant, placing M.S. at risk of harm, that both parents had exposed the minor to
domestic violence in the home and that, despite obtaining a restraining order against
father, mother had permitted father to enter the home where they engaged in both sexual
activity and physical altercations, and that the father failed to protect the minor from the
mother although he knew of her “substance abuse issues and mental health instability.”
Temporary custody was removed from both parents at a detention hearing on April 13,
2012. On May 7, mother stipulated to jurisdiction and the court sustained certain of the
allegations as to father. At the June 11, 2012 disposition hearing, the court confirmed
that B.S. is the biological and presumed father of M.S., ordered continued temporary
placement of the minor with the Department, and ordered reunification services for both
parents.
         A contested six-month review hearing began on January 16, 2013, extended over
several sessions, and concluded with the court’s order delivered from the bench on


1
    All statutory references are to the Welfare and Institutions Code.
                                                2
February 15, 2013. After an extended review of the evidence, the court found that both
parents continued to suffer from a lack of insight into their responsibility for the behavior
and attitudes that were contrary to the minor’s long term best interests, and that the
evidence was such that the court could not find that it was probable that M.S. could be
safely returned to the custody of either parent at the 12-month review hearing to be held
three months later. Nonetheless, over the Department’s objection, the court stated that
under M.V. v. Superior Court (2008) 167 Cal.App.4th 166, the court retained discretion
to continue services for the following three months and “order[ed] what amounts now to
three more months of services.”
       The Department has taken the position that the conclusion that the juvenile court
drew from the decision in M.V. v. Superior Court, supra, 167 Cal.App.4th 166 is
precluded by the Supreme Court’s decision in Tonya M. v. Superior Court (2007) 42
Cal.4th 836. In Tonya M., in the course of deciding how to measure the six-month period
between the first and second review hearings, our Supreme Court stated: “During the
second period, which runs from the six-month review hearing to the 12-month review
hearing (§ 366.21, subd. (f)), a heightened showing is required to continue services. So
long as reasonable services have in fact been provided, the juvenile court must find ‘a
substantial probability’ that the child may be safely returned to the parent within six
months in order to continue services. (§ 366.21, subd. (e).)” (Id. at p. 845.) However, as
father’s brief points out, at the time of that decision, section 361.5, subdivision (a)(2) read
that “[f]or a child who, on the date of initial removal from the physical custody of his or
her parent or guardian, was under the age of three years, court-ordered services shall not
exceed a period of six months from the date the child entered foster care.” (Stats. 2005,
ch. 625, § 5; italics added.) Subsequent to the decision in Tonya M., that section was
revised and renumbered; the relevant portion of the section, which replaces the italicized
language, now reads: “shall be provided for a period of six months . . . but no longer than
12 months from the date the child entered foster care . . . .” (§ 361.5, subd. (a)(1)(B);
                                              3
Stats. 2012, ch. 35, § 48.) Thus, the extension of services until the 12-month review is
now consistent with revised section 361.5, which is the controlling section concerning the
provision of reunification services.
       Moreover, the extension of services beyond the six-month review without a
finding of substantial probability that the minor will be returned to the custody of a parent
is not inconsistent with section 366.21, which governs the procedures for review
hearings. The third paragraph of subdivision (e) of section 366.21 reads in relevant part:
“If the child was under three years of age on the date of the 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, who was under three years of age on the date of
initial removal . . . may be returned to his or her parent or legal guardian within six
months . . . the court shall continue the case to the 12-month permanency hearing.”
(Italics added.) This section permits the juvenile court to promptly schedule the hearing
under section 366.26 if the court finds that the parents have not made substantial progress
in their treatment plan, and it compels the court to continue the case to the 12-month
review if it finds a substantial probability of return; it does not compel the court to
schedule the 366.26 hearing, or to terminate services, even if it finds a lack of substantive
progress and little likelihood of eventual return. As the court stated in M.V. v. Superior
Court, “At the six-month review, the court has discretion to continue the case and
forebear from scheduling a .26 hearing even if it does not make the finding there is a
substantial probability the child may be returned to his or her parent. Section 366.21,
subdivision (e), places discretion in the hands of the trial court as to whether to schedule
a hearing to terminate parental rights.” (167 Cal.App.4th at p. 179.)
       Finally, the extension of services at the six-month review hearing is consistent
with the governing Rules of Court, which say nothing about a need to find a substantial
                                              4
probability of return in order to continue services at the six-month hearing. Rule 5.710,
governing the six-month review hearing, states that if custody of the minor is not returned
to a parent the court may then schedule a hearing under section 366.26 within 120 days
(Cal. Rules of Court, rule 5.710 (b)(3)), but “[i]f the child is not returned and the court
does not set a section 366.26 hearing, the court must order that any reunification services
previously ordered will continue to be offered to the parent or legal guardian.” (Cal.
Rules of Court, rule 5.710 (b)(4); see also, e.g., Fabian L. v. Superior Court (2013) 214
Cal.App.4th 1018, 1027-1028; S.T. v. Superior Court (2009) 177 Cal.App.4th 1009,
1015-1016. )
       Thus, the juvenile court plainly retained discretion to continue services for the
time remaining until the 12-month review. We consider it equally plain that the court did
not abuse its discretion in doing so. As the Department states, the court’s decision was
“based upon the quality of the relationship of the parents to the child evidenced during
supervised visitation. The quality of that relationship and the application of some of the
parenting skills in those supervised visits was the impetus” for its decision. Contrary to
the Department’s argument, the juvenile court did not abuse its discretion in relying on
this evidence to justify the extension of services.
       Nor, as to the mother’s appeal, did the juvenile court abuse its discretion in
ordering supervised visitation, based on, among other things, the evidence of prior
domestic violence and the parents’ anxiety “about being in the middle of reunification
services with the prospect hanging over their heads of losing their child.”
                                         Disposition
       The order entered at the six-month review hearing on February 15, 2013 is
affirmed.




                                              5
                                _________________________
                                Pollak, J.


We concur:


_________________________
McGuiness, P.J.


_________________________
Jenkins, J.




                            6
