Filed 3/13/14 E.B. v. Super. Ct. CA5

                   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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            IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      FIFTH APPELLATE DISTRICT



 E.B.,                                                                                      F068570

          Petitioner,                                                             (Super. Ct. No. 516585)

                    v.
                                                                                          OPINION
 THE SUPERIOR COURT OF STANISLAUS
 COUNTY,

          Respondent;

 STANISLAUS COUNTY COMMUNITY
 SERVICES AGENCY,

          Real Party in Interest.


                                                    THE COURT*
          ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Ann Q.
 Ameral, Judge.
          Carin L. Johnson, for Petitioner.
          No appearance for Respondent.
          John P. Doering, County Counsel, Maria Elena Ratliff, Deputy County Counsel,
 for Real Party in Interest.
                                                         -ooOoo-


 *        Before Cornell, Acting P.J., Kane, J, and Franson, J.
       Petitioner, E.B. (mother), filed an extraordinary writ petition (Cal. Rules of Court,
rule 8.452) regarding her minor child, Naomi S. (Naomi). Mother seeks relief from the
juvenile court’s order issued at the six-month status review hearing (Welf. & Inst. Code,
§ 366.21, subd. (e)) 1 setting a section 366.26 hearing for April 11, 2014. We will deny
the petition.
                 FACTUAL AND PROCEDURAL BACKGROUND
Prehearing Events
       A detention report filed February 7, 2013,2 filed by the Stanislaus County
Community Services Agency (agency) states the following: Naomi was born in
November 2012. On January 10, she was brought by ambulance to Emanuel Hospital,
“because she had stopped breathing.” Mother and M.S. (father), Naomi’s father, were
directed to take Naomi to Madera Children’s Hospital (MCH), and the child was
“discharged with a diagnosis of reflux and was provided with medication.”
       On January 28, Naomi was again transported to Emanuel Hospital by ambulance
“for not breathing.” Following a CT scan, which showed “new and old bleeding on the
brain,” she was taken to MCH where she underwent surgery. The postoperative
diagnosis was “large subacute subdural hematomas bilaterally,” and further evaluation
revealed that Naomi had also suffered “bilateral retinal hemorrhages.” The physician
who performed the operation “reported that Naomi is a victim of shaken baby syndrome,”
and informed mother and father that Naomi had suffered a “traumatic injury” caused by
“someone.”
       As of February 7, neither mother nor father “ha[d] been able to provide an
explanation” as to how Naomi suffered her injuries. On February 5, mother told a social


1     All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated. We refer to section 366.21, subdivision (e) as section 366.21(e).
2     Except as otherwise indicated, all further references to dates of events are to dates
in 2013.


                                             2
worker the following: On January 10, “the father was alone with the child and … had left
her in the swing with the bottle propped up. When he returned to the room soon after,
[Naomi] had stopped breathing and was beginning to turn purple.” On January 28,
Naomi “woke up crying as if she was in pain,” fell asleep again, awoke again, and “was
breathing very shallowly.”
       A report filed by the agency on April 3 (April 3 report), in advance of the
jurisdiction hearing, stated that the other members of the household—Naomi’s maternal
grandparents and maternal aunt and uncle—were interviewed, and “no other explanations
[of the cause of Naomi’s injuries] were produced.” On February 5, Naomi was taken into
protective custody. A section 300 petition was filed on February 7, and on February 8,
the court ordered Naomi detained in foster care.
       The April 3 report further stated the following: Father stated that in the January
10 incident, he “may have set [Naomi] down too hard onto the ground.” The physician
who treated Naomi at MCH on January 10, and was the “child abuse doctor on call”
when Naomi was brought back to MCH on January 29, opined that Naomi’s injuries were
“highly indicative of non-accidental trauma” and “had to have been” caused by “violent
shaking,” and that her “hematomas alone could not have been caused from setting the
child down too hard.”
       On February 8, the agency referred mother to Sierra Vista Child and Family
Services (Sierra Vista) for parenting classes, individual counseling, and a clinical
assessment. By April 3, mother had completed three parenting classes and had
undergone a clinical assessment. She completed her parenting classes on May 16.
       On March 4, it was learned that Naomi had also suffered a fractured tibia. The
examining physician “could not date” this injury, which “was healing.” Mother and
father “have been cooperative with the Agency, other than providing … a viable reason
to how [sic] the injuries [to Naomi] occurred ….” “[B]ecause of the severity of the




                                             3
injuries and the lack of an explanation as to the abuse of Naomi, the Agency …
recommend[ed] that the parents be denied reunification services ….”
       On May 21, an amended section 300 petition was filed.3 On June 11, at what was
apparently a combined jurisdiction and disposition hearing, the court found the
allegations of the amended petition true, adjudged Naomi a dependent child (§ 300),
ordered her removed from the custody of her parents, and ordered that the agency file a
case plan with the court within 10 days. The court’s written order stated that “[t]he
extent of progress which has been made toward alleviating or mitigating the causes
necessitating placement has been,” for both mother and father, “good.”
       On June 21, the agency filed a case plan, which included the following two service
objectives: (1) “The parents shall identify the perpetrator and be protective.” (2) “The
parents shall recognize the injuries to the child were not accidental and shall explain the
causes of the injuries consistent with the medical findings.” On July 9, the court ordered
the second of these objectives amended to delete the words “and shall explain the causes
of the injuries.” On July 31, the court filed the amended case plan, with the ordered
modification, so that the modified objective read: “The parents shall recognize the
injuries to the child were not accidental consistent with the medical findings.”4
       Clinical psychologist Edward A. Moles, Ph.D., conducted the psychological
evaluation, meeting with mother on July 30, August 14 and September 3. In his report,
which was faxed to the agency on September 6, he stated the following: Mother stated
that on January 10, she had left Naomi with father, who told mother later that he had left
Naomi on the swing and that when he returned she was turning blue. When Dr. Moles

3       A January 29 social worker’s case log note states that “[Naomi] was transported to
[MCH] due to a skull fracture,” and it was alleged in the initial petition that Naomi had
suffered a skull fracture. However, a January 29 physician’s note states there was “no
evidence of fracture on CT of the head.” The allegation of a fractured skull was deleted
in the amended petition.
4      We sometimes refer to this treatment plan objective as the recognition objective.


                                             4
asked mother if she thought father “had done something to Naomi,” mother “seemed
confused about [father’s] responsibility in this and seemed to want to believe that he did
nothing wrong.” Mother was “hesitant to accept” that father was responsible for Naomi’s
injuries. “Her need to maintain the relationship with her husband appeared to be a
primary concern.” Mother “has acknowledged that her husband must have done
something to injure their child” but “she has done nothing to engage in behavior
reflecting this concern and seems passively accepting of him and his story.” Mother
reported that in May she, father and Naomi moved out of her family’s home and into
their own home.
       Dr. Moles opined that the failure of mother and father to account for Naomi’s
serious injuries is “striking,” and stated that with such injuries and “no understanding of
causation[,] there is a significant concern that the injuries would continue if [Naomi] is
returned [home].” Dr. Moles recommended that Naomi not be returned to mother unless
mother “is in a stable independent living situation separate from [father],” and that she
“continue the parenting and individual counseling services at Sierra Vista.”
       In August, Maryanne Cose, mother’s counselor at Sierra Vista, in an email to
agency social worker Christine Shahbazian, stated that mother “feels that the injuries [to
Naomi] were a result of [father] performing CPR.”
       A status review report authored by Shahbazian and filed October 18, states the
following: Shahbazian met with mother on September 10. Mother had prepared a
written “general” plan for keeping Naomi safe. When asked how the plan was “specific
to Naomi’s injuries,” mother stated she was “leaving” father and moving back in with her
family. She requested “separate visits from [father].” She had not previously informed
her counselor at Sierra Vista of her plan to leave her husband “as this was a new
decision.” When asked “why she made this decision now,” mother responded “she had
been confused before.” Throughout this meeting mother “indicated she believed [father]
was responsible for Naomi’s injuries.”


                                             5
       Also on September 10, Naomi’s foster mother telephoned Shahbazian and told the
social worker that on the previous day, mother had stated “she was going to blame her
husband, move back with her parents and then get Naomi back,” and that thereafter “she
would move back with her husband and be a family again.”
       On September 24, Shahbazian spoke with mother by telephone. When the social
worker told mother that Naomi’s foster mother had reported mother’s professed intention
to move back in with father, mother “stated this was not true; those words never came out
of her mouth.” Mother also “indicated the injuries were nonaccidental and she believed
her husband was responsible but she didn’t know what happened as the injuries happened
while [Naomi] [was] in [father’s] care on [January 10].”
       On September 26, Shahbazian met with father, who stated that “he and his wife no
longer see each other or call each other.”
       Also on September 26, Shahbazian again met with mother. Mother stated the
following: “[S]he believed that on [January 10] [father] propped Naomi up with a bottle
and left her unattended causing Naomi to choke and stop breathing.” Father told mother
“he bounced [Naomi] [to] get her breathing again,” and mother believed “that is what
caused the injuries.” When asked about Naomi’s broken leg, mother “clarified it was a
fractured foot and indicated the doctor told her that Naomi’s foot could have easily hit
something and broke.” Mother also reported “she was moving out of her parents’ home
and obtaining her own residence.”
       At some point, apparently during the September 26 meeting, Shahbazian asked
mother if she could “appreciate the difference” between a person “shak[ing] a baby to
stop the baby from crying” and shaking a baby “out of … frustration.” Mother
responded, “there is no difference and that one should never shake a baby.”
       Shahbazian concluded: “The nature of the injuries to Naomi and [mother’s] belief
that her husband injured Naomi by bouncing her to get Naomi to start breathing are not




                                             6
consistent with medical findings, nor does [mother] understand the nature of the injuries
being nonaccidental.”
       Cose, in a letter to Shahbazian, dated October 9, indicated Cose’s last contact with
mother was a counseling session on October 8, and stated mother “had difficulty
acknowledging who injured her daughter and how the injuries occurred.” Cose reported
that mother had repeated father’s account that in the first incident he had “propped the
bottle up to feed Naomi when she began to choke and stop breathing.” As to the second
incident, mother stated she “noticed that [Naomi’s] breathing was ‘not right’ and yelled
for [father],” and she “believed that [father] attempted to startle Naomi by ‘bouncing’ her
to help her breath[e].” Cose further reported that mother stated, “as of September 10,
2013[,] she has separated from her husband” and that she is willing to seek a restraining
order and obtain a divorce “if this would help prove she is serious about the separation.”
Six-month Review Hearing
       The six-month review hearing was conducted over three days: December 9, 10
and 12.
       Naomi’s foster mother testified to the following: She is, and has been since June
2013, Naomi’s foster mother. In the latter part of September, she saw mother and father
together in a Walmart store in Patterson, walking next to each other as mother pushed a
shopping cart. In the early part of October, she saw mother and father together, traveling
in a car in Patterson; father was driving.
       The foster mother further testified that on September 9, she was with mother at a
doctor’s appointment, and that mother said “she [mother] needed to announce that
someone had done it, she had left [father] and was moving in with her parents.” While in
the examination room waiting for the doctor, mother telephoned father, and said to
Naomi, “‘Say hi to Daddy. Daddy it’s your baby.’”
       Cose testified to the following: The purpose of her counseling of mother was to
“address [the] objective” of the case plan that mother “identif[y] who the perpetrator was,


                                             7
acknowledg[e] that her baby was non-accidentally injured, com[e] to terms with safety
for herself and her child.” Cose’s most recent counseling session with mother was on
December 5.5 Since September 10, when mother told Cose she had “decided to dissolve
the relationship with [father],” mother was “making progress now” compared to the “the
beginning of services.” She is now “towards the end of the beginning, in the middle
[stage of that progress]. She’s coming along, but it’s just taken a little while.” Her
“progress” consisted of “a safety plan on how she will help keep her daughter safe,” but
because she does not have custody of Naomi she has not been able to “put [the safety
plan] into action.” Mother “reports that she believes [father] had shaken [Naomi].” On
December 5, mother showed Cose “actual paperwork” proving that she had filed for
dissolution of marriage. That mother said she was leaving father shortly after Dr. Moles
recommended that Naomi not be returned to mother unless she was living separately
from father “leaves [Cose] to question if [mother’s] decision was a result of the
psychological evaluation conducted by [Dr.] Moles or if it was her decision for herself
and her baby.” That mother “is saying … she has the intent of having no contact” with
father, but “then is seen out in the community with him” indicates mother “may be
confused [as to] what she wants.”
       On December 4, mother spoke with Cose on the telephone and told her about an
incident in Patterson that involved “shoving.” At their in-person discussion on December
5, mother stated she had gone to father’s home “to confront him about financial matters,”
at which time father “pushed” her and she “pepper-sprayed” him. Cose did not know
whether father pushed her before or after mother pepper-sprayed him. Thereafter, mother
stated, father “showed up with a golf club” at mother’s home and “attempted,”
unsuccessfully, “to break windows.” Also on December 5, mother stated that when she
was pregnant, father threw a “light” box “at her stomach.” This “really upset” mother.


5      Cose testified on December 9.


                                             8
        At some point prior to December 4, mother stated she would seek a restraining
order against father, “if she needed to.” At that time, Cose gave mother “information to
contact Haven.” Cose also contacted Haven while mother was in Cose’s office “so that
she could have an outside resource to help her if necessary.”
        “[A]s of yet,” Cose had not addressed with mother in counseling the question of
“how mother could safely interact with [father] if they needed to discuss any
[coparenting] issues.” In the event services were continued, that was “something [Cose]
would continue to work with mother on.”
        Mother “mentioned [to Cose] that she need[ed] help to stay away from [father],”
and Cose “explained to her that … she could benefit from having stronger boundaries.”
Mother “agreed … and said that she needed help in doing so.” When asked if she had
discussed with mother “[mother’s] judgment and appropriate boundaries,” Cose
responded: “Not to the degree that it needs to be. A majority of the focus has been on
[mother] dealing with her emotions and dealing with [father] regarding the separation and
the feelings that she’s been having around that.”
        On December 9, Shahbazian testified to the following: She is the “family
reunification worker” assigned to mother’s case. Prior to the previous Tuesday,
December 3, mother had consistently stated she believed that Naomi’s injuries occurred
when she had stopped breathing and father, in an effort to revive her, “bounced” her. But
on December 3, she reported for the first time that father “shook [Naomi] because he was
mad.”
        Mother stated, “she had no contact with [father].” However, later in the one hour
and 45 minute discussion, “when pressed,” she stated that “a couple of weeks” before,
she went to father’s home to discuss an overdraft on their joint bank account, at which
time he pushed her and “slam[med] the door on her, hitting her with the door,” and she
pepper-sprayed him. Later, father saw her driving around and “threatened to break a
window.”


                                             9
       Shahbazian did not provide mother with a domestic violence referral after mother
told her about this incident because, as mother recounted the incident, it was “more of
poor decision-making and mutual combat,” rather than a “domestic violence situation.”
Mother never told Shahbazian about the incident in which father threw the box at
mother’s stomach while she was pregnant. Prior to December 3, Shahbazian asked
mother “multiple times” if she had “any … concerns with regard to father’s propensity
for violence or anger,” and she “consistently responded that “she never saw any anger or
temper or issues with violence.”
       Mother testified to the following: “[S]ometime in September,” she “came to the
conclusion” that father caused Naomi’s injuries when he “shook [her] violently.” She
“wasn’t physically present to see” how Naomi was injured and initially “didn’t think
[father] actually caused these injuries.” Prior to the point in September when she reached
the conclusion she did, she “didn’t think that [father] actually caused these injuries,” and
she “wasn’t completely sure … if it was an accident or non-accident, and that’s what
[she] struggled with to understand.” It took her until September to reach the conclusion
she did because, she explained: “My daughter, I have to think about her. I have to be a
mother first. And it took me a long time, and it was a process. It wasn’t something easy
for me.”
       On September 10, mother moved out of the home she was sharing with father. On
September 9, when she told father she was moving out, he told her “basically to put [her]
foot up [her] ass,” that “he was going to do anything that was possible of him to keep
[her] away from [Naomi] and that he wasn’t going to let [mother] keep [Naomi].” Father
also told mother, “‘I know where your family lives ….’”
       At the conclusion of the hearing, the court stated: “[M]y real concern throughout
… this trial is that [mother] is really paying lip service to what she is supposed to say and
what she is supposed to believe, but I don’t believe her actions really support that belief.”
The court found it “troubling” that mother, who was separated from father at the time of


                                             10
the jurisdiction hearing, chose to move back in with him after the disposition hearing,
“when he very likely was the perpetrator of the injuries [Naomi suffered].” The court
was “also very concerned about mother’s protective capacity, because she seems to be
really lacking in good judgment,” as evidenced by going to father’s home in November,
after father had threatened her in September, and confronting him about a bank overdraft.
Mother’s behavior “makes [the court] believe that maybe the foster parents [sic] are
correct, that [mother] did say that I’m going to get Naomi back and we’re going to be
together in one big happy family.” The court “can’t help but feel that maybe [mother is]
playing a game on this Court and saying what she thinks everybody wants to hear, but not
really feeling that way truly in her heart.”
       The court found that mother had “participated regularly” but had “[not] made
substantive progress in the case plan.” The court also found “by clear and convincing
evidence that reasonable services were either provided or offered to the parents,” and
stated it was “not convinced that there is a substantial probability that Naomi could be
returned to [mother’s custody by the time of the 12-month review].”
                                       DISCUSSION
Substantive Progress
       Section 366.21(e) governs the proceedings at the six-month review hearing.
Section 366.21(e) provides that where, as here, the minor who is the subject of the section
300 proceeding is under three years of age on the date of the initial removal from the
home of the parent(s), a finding by clear and convincing evidence that the parent failed
“to make substantive progress in a court-ordered treatment plan” is a prerequisite to the
setting of a section 366.26 hearing. (§ 366.21(e), 3d par.)
       Here, as indicated above, the court set a section 366.26 hearing after making a
finding that mother had failed to make substantive progress in the treatment plan. Mother
argues, as best we can determine, that the evidence was insufficient to support this
finding. We disagree.


                                               11
       “We review the correctness of an order pursuant to section 366.21 to determine if
it is supported by substantial evidence.” (In re Shaundra L. (1995) 33 Cal.App.4th 303,
316.) “[T]he substantial evidence test applies to determine the existence of the clear and
convincing standard of proof ....” (In re Amos L. (1981) 124 Cal.App.3d 1031, 1038.) In
applying the substantial evidence test, we adhere to the following principles: “It is the
trial court’s role to assess the credibility of the various witnesses, to weigh the evidence
to resolve the conflicts in the evidence. We have no power to judge the effect or value of
the evidence, to weigh the evidence, to consider the credibility of witnesses or to resolve
conflicts in the evidence or the reasonable inferences which may be drawn from that
evidence. [Citation.] Under the substantial evidence rule, we must accept the evidence
most favorable to the order as true and discard the unfavorable evidence as not having
sufficient verity to be accepted by the trier of fact.” (In re Casey D. (1999) 70
Cal.App.4th 38, 52-53.)
       As also indicated above, one of the objectives of the court-ordered treatment plan
was the following: “The parents shall recognize the injuries to the child were not
accidental consistent with the medical findings.”
       From the evidence summarized earlier, the court reasonably could conclude that
from early February, when mother first spoke to a social worker about Naomi’s injuries,
to December 3, a few days prior to the six-month review hearing—when, according to
social worker Shahbazian’s testimony, mother for the first time ascribed Naomi’s injuries
to father’s act of violently shaking the child because he was angry—mother consistently
maintained—to her counselor at Sierra Vista, to the psychologist who conducted a
psychological evaluation of mother, and to Shahbazian—that she believed father
accidentally caused Naomi’s injuries. We recognize that mother’s December 3 statement
to Shahbazian and her testimony that she accepted that Naomi’s injuries were caused in a
nonaccidental manner support her claim that she complied with the recognition objective.
However, it is apparent from the court’s remarks that the court did not credit mother’s


                                             12
testimony. And, under the principles of appellate review summarized above, we must
accept the court’s assessment of mother’s credibility.
       The record contains ample support for the court’s finding as to mother’s lack of
credibility. First, mother testified that in September she came to the conclusion that
Naomi’s injuries were not caused in the accidental manner father had described, viz., by
leaving her alone with a “propped up” bottle, but by his violently shaking her. Yet,
mother made no mention of this conclusion to Cose or Shahbazian until December and,
indeed, indicated to Shahbazian in late September and to Cose in October that she
accepted father’s account.
       Second, although the evidence is in conflict, the court reasonably could have
credited, and in fact apparently did credit, that, as the foster mother reported to
Shahbazian, mother told the foster mother on September 9 that she (mother) intended to
“blame” father for Naomi’s injuries, move out of the home she shared with father, regain
custody of Naomi, and then move back in with father.
       Third, as the court noted, on occasion, mother’s actions were at odds with her
words, casting doubt on her credibility. For example, although mother testified that she
left father on September 10, in part because he had threatened her family and because she
realized at that point he was “not the person … [she] thought he was,” there was also
evidence that later in September she and father were seen walking side by side in a
Walmart store and that in October she and father were seen driving together in Patterson.
       Mother argues that the record compels the finding that she recognized in
September that Naomi’s injuries were not accidentally caused when on September 24,
mother described the injuries to Shahbazian as “nonaccidental.” We disagree. As
indicated above, just two days later on September 26, mother told Shahbazian that Naomi
was injured as a result of father leaving her alone with a propped up bottle and in October
she made a similar statement to Cose and added that she believed Naomi was injured on
January 28, when father “bounced” the child in an effort to get her to breathe. Although


                                              13
on September 24, mother used the label “nonaccidental” in describing to Shahbazian the
infliction of Naomi’s injuries, when she explained how she believed the injuries actually
occurred, she described injuries inflicted in an accidental manner.
       Mother also devotes a large portion of the instant petition to challenging
Shahbazian’s reasoning and conclusions. However, it is the court’s finding that mother
did not make substantive progress in her treatment plan that we review, not the findings
of the social worker.
       Mother also challenges the sufficiency of the evidence supporting the court’s
finding of no substantive progress on the basis that various factors, she claims, show that
mother did in fact progress in meeting the recognition objective. For example, she points
to her professed understanding that one should never shake a baby, her development of a
safety plan, and her act of separating from father as recommended by Dr. Moles in the
psychological evaluation report. However, these and other factors which militate against
a finding of no substantive progress do no more than create a conflict in the evidence, and
as indicated above, in applying the substantial evidence test, we resolve such conflicts in
favor of the court’s order.
       To summarize, the court reasonably could conclude that from February, soon after
Naomi’s injuries were discovered, until the week prior to the hearing in December,
mother displayed no recognition that Naomi’s injuries were not inflicted accidentally.
Further, although mother claimed in December that she understood father had inflicted
Naomi’s injuries by violently shaking the child out of anger, and that she (mother) had
come to this conclusion in September, the court did not believe her, and it is beyond this
court’s power to review the trial court’s credibility determinations. On this record,
substantial evidence supports the conclusion that as of the time of the hearing, mother
had not recognized that Naomi’s injuries were not caused accidentally. Moreover, the
court could also reasonably conclude that mother’s failure to understand this aspect of the
cause of Naomi’s injuries would create a serious possibility of further injury to Naomi,


                                            14
should she be returned to mother, and thus the recognition objective was a crucial
component of mother’s case plan. We conclude therefore that because substantial
evidence supports the conclusion that mother failed to comply with the recognition
objective, substantial evidence also supports the court’s finding that mother did not make
substantive progress in the case plan.
Reasonable Services
       Under section 366.21(e), where, as here, the minor who is the subject of the
section 300 proceeding is under three years of age on the date of the initial removal from
the home of the parents, even if the juvenile court has a made a finding that the parent has
not made substantive progress in a court-ordered treatment plan, the court may not, at the
six-month review stage, set a section 366.26 hearing and terminate services if it finds
“reasonable services have not been provided” to the parent(s). (§ 366.21(e), 3d par.)
Here, as indicated above, the court found that reasonable services were provided to
mother. Mother contends the evidence was insufficient to support this finding. We
disagree.
       A finding that reasonable services were provided, like other findings under section
366.21, is reviewed under the substantial evidence test. (In re Alvin R. (2003) 108
Cal.App.4th 962, 971 (Alvin R.).)
       “‘In almost all cases it will be true that more services could have been provided
more frequently and that the services provided were imperfect. The standard is not
whether the services provided were the best that might be provided in an ideal world, but
whether the services were reasonable under the circumstances.’ [Citation.]” (In re Julie
M. (1999) 69 Cal.App.4th 41, 48 (Julie M.).) “Services will be found reasonable if the
Department has ‘identified the problems leading to the loss of custody, offered services
designed to remedy those problems, maintained reasonable contact with the parents
during the course of the service plan, and made reasonable efforts to assist the parents in
areas where compliance proved difficult….’” (Alvin R., supra, 108 Cal.App.4th at pp.


                                             15
972-973.) “The adequacy of a reunification plan and of the department’s efforts are
judged according to the circumstances of each case.” (In re Ronell A. (1996) 44
Cal.App.4th 1352, 1362 (Ronell A.).)
       The problem that led to the loss of custody was that Naomi suffered serious
injuries while in the care of her parents, neither of whom could offer anything
approaching a satisfactory explanation as to how those injuries occurred. In an effort to
address this problem, mother was offered and received services including a psychological
evaluation, parenting classes, and individual counseling, with the last of these services,
according to mother’s counselor, directed at “address[ing] [the] objective” of the case
plan that mother “identif[y] who the perpetrator was, acknowledg[e] that her baby was
non-accidentally injured, com[e] to terms with safety for herself and her child.” The
foregoing constitutes substantial evidence that mother was offered reasonable
reunification services.
       Mother faults the services offered and provided on a number of bases. She
complains she was not offered services relating to coparenting, codependency and
assisting victims of domestic violence. In this regard, mother notes that Shahbazian did
not provide her with a referral for services after Shahbazian learned of the incident in
which father pushed mother, and that Cose, although she was “willing and about to
embark on issues of boundaries and co-parenting[,] … had not gotten there yet.”
       However, it appears mother was offered domestic violence services. When
mother spoke to Cose about seeking a restraining order, Cose gave mother a referral to
Haven—apparently a shelter or some other kind of facility that provides assistance to
domestic violence victims—and called that facility for mother. Moreover, mother never
raised any concerns related to domestic violence until early December. Assuming for the
sake of argument that Shahbazian was remiss in not offering mother a domestic violence
services referral in December, and that Cose can be faulted for focusing on issues relating
to mother’s meeting the recognition objective to the exclusion of other issues, these


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factors suggest, at most, that mother did not receive the services she might have received
“in an ideal world.” (Julie M., supra, 69 Cal.App.4th at p. 48.)
       Mother also argues that the agency did not provide reasonable services because,
she suggests, the agency did not offer additional services in response to Dr. Moles’s
psychological evaluation. However, the only services Dr. Moles recommended were
continued “parenting and individual counseling services at Sierra Vista,” which mother,
in fact, continued to receive.
       Mother also challenges the court’s finding that reasonable services were provided
on the basis that Shahbazian imposed a requirement on mother not set forth in the
treatment plan by insisting that mother identify father as the perpetrator before she
(Shahbazian) would recommend continued services. The record does not support the
factual premise of mother’s claim, i.e., that Shahbazian imposed requirements on mother
not set forth in the treatment plan, and in any event this claim has no bearing on whether
the agency offered reasonable reunification services to mother.
       Finally, mother argues “it appears that [Shahbazian] … delivered incorrect
information about the child’s injuries to the service providers.” Mother provides no
explanation of this claim, although it may relate to an erroneous statement in an agency
report that Naomi had suffered a skull fracture. (See, ante, fn. 3.) In any event, this
claim also has no bearing on the services mother may or may not have been provided.
Substantial Probability of Return of Minor to Mother
       Mother, after discussing at some length M.V. v. Superior Court (2008) 167
Cal.App.4th 166 (M.V.), concludes her discussion of that case with the following
quotation: “‘[S]ervices may be terminated at the six-month stage 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.”’ [Citation.]” (Id. at pp. 182-183.) Mother argues: “The facts of this case


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do not support the aforementioned notion.” To address this contention, we must examine
the “notion” set forth in the statement from M.V. quoted above in the context of that case.
       Under section 366.21(e), where, as here, the minor who is the subject of the
section 300 proceeding is under three years of age on the date of the initial removal from
the home of the parent, even if the juvenile court has a made a finding that the parent has
not made substantive progress in a court-ordered treatment plan, the court may not, at the
six-month review stage, set a section 366.26 hearing and terminate services if it finds
“‘there is a substantial probability that the child … may be returned to his or her parent
… within six months … ’; or … ‘reasonable services have not been provided …’ to the
parent[s]. (§ 366.21, subd. (e).)” (M.V., supra, 167 Cal.App.4th at p. 176.)
       The M.V. court made the statement quoted above at the conclusion of its analysis
comparing the substantial probability of return standard set forth in section 366.21(e)
with a similar provision in the portion of section 366.21 that governs 12-month review
hearings, viz., section 366.21, subdivision (g)(1) (section 361.21(g)(1)). That portion of
the statute provides, in relevant part, that at the 12-month review, the court may continue
the case to the 18-month review “only if it finds that there is a substantial probability that
the child will be returned to the physical custody of his or her parent ….”
(§ 366.21(g)(1), italics added.)
       The court compared the two provisions: “subdivisions (e) and (g)(1) of section
366.21 present distinct legal standards: subdivision (e) asks whether there is a substantial
probability the child may be reunited with the parent by the 12-month review; subdivision
(g)(1) asks whether there is a substantial probability the child will be reunited with the
parent by the 18-month review.” (M.V., supra, 167 Cal.App.4th at p. 180.) This
comparison highlights a “crucial difference[] between the ‘substantial probability’
inquiry required at the six-month review and the inquiry required at the 12-month
review,” viz., the following: “the court is not charged by section 366.21, subdivision (e),
with finding a substantial probability the child will be returned. The court is charged with


                                              18
finding a substantial probability the child may be returned. Literally, the statute
commands the court to determine whether there is a strong likelihood of a possibility of
return (not simply a strong likelihood the return will in fact occur). The word ‘may’
alters the typically high burden of ‘substantial probability.’” (Id. at pp. 180-181, fn.
omitted.)6 The statutory scheme is one of “‘escalating standards’”; under the “more
lenient standard” of section 366.21(e), the continuation of services is “presumed,”
whereas when one moves to the 12-month stage (§ 366.21(g)(1)), services are “possible.”
(M.V., supra, 167 Cal.App.4th at p. 179.)
       Mother suggests the record does not establish, in the words of the passage she
quotes, that “there is no longer ‘reason to believe’” that mother can provide “positive,
nurturing” parenting (M.V., supra, 167 Cal.App.4th at p. 183), and that therefore the
court was compelled to make the finding of substantial probability under section 366.21
that would have precluded the setting of a section 366.26 hearing. The court made, in
essence, the opposite finding, stating it was “not convinced that there is a substantial
probability that Naomi could be returned to [mother’s custody by the time of the 12-
month review].” But the statement from M.V. regarding the standard at the six-month
review quoted by mother must be read in the context of the statutory requirements for
such a finding. That is, the court must continue services unless “there is a strong
likelihood of a possibility of return….” (M.V., supra, 167 Cal.App.4th at p. 181, first
italics added.) The record, however, does not compel such a finding. There may be some
likelihood of such a possibility, but, given that the court, as demonstrated above,
reasonably could conclude that despite the passage of more than 10 months from the time
mother learned of the medical findings as to the causes of Naomi’s injuries, to the hearing
in December, she had not recognized, consistent with those findings, that father inflicted
those injuries nonaccidentally, and that as a result, return of the child to mother would put

6      The court noted: “Admittedly, the statute is unwieldy. But we must honor the law
as written by the Legislature.” (M.V., supra, 167 Cal.App.4th at p. 181.)


                                             19
the child in danger. From this conclusion, the court reasonably could have concluded
further that there was not a strong likelihood of the possibility of return. The court’s
finding that there did not exist a substantial probability that Naomi could be returned to
mother within the statutory time frame was supported by substantial evidence.
Accordingly, that finding cannot be disturbed on appeal.
                                      DISPOSITION
       The petition for extraordinary writ is denied. This opinion is final forthwith as to
this court.




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