Opinion
E072047
09-04-2019
In re A.W. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. C.W., Defendant and Appellant.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Svetlana Kauper, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. J271452, J271453, J271454 & J273456) OPINION APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Affirmed. Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Svetlana Kauper, Deputy County Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
C.W. (Mother) is the mother of four young girls: seven-year-old Am.W.T. (Am.), five-year-old S.W.T. (S.), three-year-old As.W.T. (As.), and one-year-old D.W.T. (D.) The children were removed from parental care due to allegations of severe physical abuse inflicted upon Am., medical neglect of As. and S., and unresolved substance abuse issues. Am. was declared a dependent of the court pursuant to Welfare and Institutions Code section 300, subdivisions (a), (b), and (e). Am.'s three sisters were also declared dependents of the court under section 300, subdivisions (b) and (j). Following a contested dispositional hearing, the juvenile court bypassed reunification services under section 361.5, subdivisions (b)(5), (6), and (7), and set a section 366.26 hearing.
The father of the children, D.T. (Father), is not a party to this appeal.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
Pending the section 366.26 hearing, Mother filed a section 388 petition asking the court to vacate the section 366.26 hearing and to grant her reunification services. The court denied Mother's section 388 petition without an evidentiary hearing, finding Mother had not met her burden of changed circumstances or that the change in order promoted the children's best interest. The court also reduced Mother's visits to twice a month with a 24-hour confirmation of the visit without ordering the agency to provide transportation assistance to Mother. Mother appeals from the juvenile court's orders denying her section 388 petition and the court's failure to order the agency to provide transportation assistance.
On appeal, Mother argues (1) the juvenile court abused its discretion and violated her due process rights when it denied her section 388 petition without an evidentiary hearing, and (2) the juvenile court violated her due process rights to visit her children when it allowed the agency to move her children six hours away without ordering the agency to provide transportation assistance. We find no error and affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
The family came to the attention of the San Bernardino County Children and Family Services (CFS) on June 12, 2017, after Am., then age four, was transported to Loma Linda Children's Hospital (Loma Linda) by Emergency Medical Services (EMS). Reportedly, Am. stopped breathing and turned blue when her neck got entangled in a seat belt while riding in the backseat of Mother's car. Mother was very uncooperative with hospital staff.
Am. was eventually examined by staff at Loma Linda. Am. presented with marks and bruises which appeared to be unrelated to the seat belt incident. When asked about the seat belt incident, Am. stated "'I put the seat belt around my neck on purpose.'" Am. did not provide any further explanation. When the social worker pointed to the numerous marks and bruises on her and asked her about the new and old marks on her arms, legs, and back, sometimes Am. responded "'papa' did it" and others "'my mom.'" Am. further asserted, "I was not supposed to say that." The marks and bruises appeared to be non-accidental injuries inflicted by an instrument such as a belt.
Mother refused to cooperate with and provide any information to the social worker. She also refused to give the hospital authorization to treat Am. and wanted to take the child home. Regarding the seat belt incident, Mother explained that she was on her way back from a grocery store with Am. and S. in the backseat while the maternal grandfather rode in the front passenger seat of the car. Mother was unaware of the developments in the backseat until the maternal grandfather jumped in the backseat trying to help Am. with the seat belt wrapped around Am.'s neck. Mother ultimately stopped the car and located a glass bottle. She gave the bottle to the maternal grandfather who broke the bottle and then used it to cut the seat belt. They called EMS when Am. started turning blue. Mother noted this was not the first time that Am. had placed something around her neck to harm herself. She also stated that the family became homeless in January 2017. Since then, Mother and her three children resided with the maternal grandparents and their 11-year-old son at a motel. Father was incarcerated for possession of cocaine for sale at the time.
When the social worker met with Am.'s sisters, S. and As., she noted that the two girls suffered from severe lymphedema in the lower extremities and feet. The children's feet were so swollen that they could not wear shoes or walk. The children did not receive medical treatment for the condition. The parents refused to allow any treatments in anticipation that the children would "grow out of it."
Based on Am.'s attempts to harm herself, the unexplained bruises and marks as well as the medical neglect of As.'s and S.'s lymphedema, CFS believed the children remained at risk of further harm, physical abuse, or neglect without removal. The children were taken into protective custody as Mother was arrested for child abuse.
On June 14, 2017, petitions were filed on behalf of As. and S. pursuant to section 300, subdivisions (b) (failure to protect), (g) (no provision for support), and (j) (abuse of sibling). On this same date, a petition was also filed on behalf of Am. pursuant to section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), and (g) (no provision for support) counts.
At the June 15, 2017 detention hearing, the children were formally removed from parental custody. Mother was provided with services pending the development of a case plan and the jurisdictional/dispositional hearing. Mother was also provided with supervised visits one time per week for two hours and ordered to drug test that day.
CFS recommended to dismiss the (g) (no provision for support) allegations and find true the remaining allegations. CFS also recommended reunification services for both parents. Mother reported that she had never known any of her children to have any marks and bruises on them or the origins of Am.'s older marks and bruises. She explained Am.'s marks and bruises were caused by her attempts to free the child from the seat belt. Later, Mother claimed her brother caused the bruising when he "stomped" on Am. She also asserted her brother was a gang member and she was scared for her life. Consequently, due to her fear, she did not report the origin of Am.'s injuries.
Mother's explanation for Am.'s marks and bruises, however, contradicted the medical findings made at Loma Linda. According to the June 12, 2017 Loma Linda medical report, Am. presented with "significant extensive numerous patterned bruising on her bilateral linear extremities, bilateral hips, buttocks," and upper left part of the back, which were "consistent with being struck with an implement." During the exam, Am. disclosed being struck with a belt by her mother, which was consistent with the noted injuries. Am. reported that "'momma hits belt'" and described the belt as "'black.'" Am. further explained that "'nana hits with a belt Papa hits with a shoe.'" Am. was talkative and was able to explain her bruises with "'Mommy hit everywhere with her belt.'" However, Am.'s facial petechiae and posterior neck bruising appeared to be consistent with the explanation of being trapped by the seat belt. The forensic medical report was marked for physical abuse.
Am. was also seen at the Children's Assessment Center (CAC) on June 12, 2017. A forensic pediatrician, Dr. Siccama, noted extensive marks and bruising on Am.'s body. Dr. Siccama marked an abnormal skeletal survey result on Am.'s CAL-EMA. The doctor also recorded a "healing left supracondylar fracture with periosteal bone formation in anatomical alignment." When asked about her injuries, Am. stated "'mommy hit everywhere with her belt.'" Dr. Siccama opined Am. was a victim of physical abuse.
On June 22, 2017, As. and S. also underwent forensic medical evaluations at the CAC. As.'s findings reflected "healed scattered scars on right lower leg and a healed linear scar on right upper arm." The finding was "non-specific" and required more information. A forensic interview of the older sibling was recommended. As. also had bilateral lower extremity edema with the right extremity being more prominent than the left one. S.'s CAC examination revealed a concern for the edema affecting the lower extremities, the right one more prominent than the left one. S. presented with healed scars on bilateral upper extremities, right thigh, and left part of groin. Although the findings were "non-specific" in nature, the evaluations showed the results as "suspicious for physical abuse."
On July 25, 2017, Am. and S. participated in a forensic interview at the CAC. Am. asked several times if the interviewer would disclose Am.'s statements to Mother. Am. was concerned that Mother would become "'angry'" with her if the interviewer disclosed what was discussed to Mother and that Mother would hit her. Am. eventually disclosed that Mother dispenses "'little hits'" on the child's hands and "'bigger hits when [she] be bad.'" Mother normally hit Am. with a belt, but sometimes she would hit with "Nana's shoe" on the nose. S. had trouble focusing and was difficult to understand as her speech was still developing.
Mother had a prior child welfare history with referrals for emotional abuse, general neglect, severe neglect, physical abuse, and caretaker absence dating back to 2012. These referrals were closed as inconclusive and/or unfounded. An October 2012 referral involved substance abuse, which caused CFS to be concerned about Mother's untreated history of substance abuse. Mother was ordered to drug test at the detention hearing. Her drug test result was negative for all substances. In addition, the October 2012 investigation revealed that Mother had been diagnosed as having mild mental retardation, and a history of bipolar disorder, oppositional defiant disorder, and a borderline personality disorder. Mother also had substantiated CFS history as a minor and had previously been a client of Inland Regional Center (IRC). At some point, Mother reported to the social worker her fears that CFS and the police department were trying to kill her, and she wanted the media to supervise her visits because she believed the social worker was going to "harm her" or "jump on her." Mother also believed the social worker was racist. Due to Mother's history of mental health concerns, CFS requested Mother to participate in a psychiatric evaluation.
CFS reported the prognosis for reunification was "very guarded." Mother appeared hostile throughout the investigative process. Additionally, she maintained that physical discipline was not practiced in the household and was unwilling to engage in services. By August 2017, Mother's aggressive behavior escalated to the point where As.'s and S.'s foster parents feared for their own safety and requested removal of the two girls. As. and S. were placed in a new foster home on August 1, 2017. Mother continued her aggression on the social workers, supervisors, and CFS staff in the children's presence during her visits. At one of the visits, Mother threatened to blow up the building. In response, CFS requested to suspend Mother's visits.
A hearing on CFS's request to suspend visits was held on September 14, 2017. Although the juvenile court acknowledged that Mother's behavior was inappropriate and CFS was within its rights to stop the visits out of concern for the safety of its employees when criminal threats were involved, the court instituted trial visits and ordered Mother and Father to visit separately. At Mother's request, the court granted gas cards to Mother.
On September 14, 2017, based on the injuries discovered at the CAC forensic evaluation, CFS amended Am.'s petition to include a severe physical abuse allegation pursuant to section 300, subdivision (e). CFS also recommended that the court deny reunification services to Mother and Father under section 361.5, subdivisions (b)(5) and (b)(6).
In October 2017, Mother gave birth to her fourth child, D. CFS was concerned about D.'s well-being given that the child's siblings had been detained for severe physical abuse and Mother had not fully engaged in her required services. Of concern was also the fact that Mother left with D., and her whereabouts were unknown. On October 23, 2017, CFS located Mother and D. and took the child into temporary protective custody pursuant to a detention warrant.
On October 25, 2017, a petition was filed on behalf of D. pursuant to section 300, subdivisions (b) and (j). D. was formally detained and removed from parental custody at the detention hearing held the following day. The parents were ordered to drug test that same day and advised that no reunification services may apply pursuant to section 361.5.
A pretrial settlement conference hearing was held on November 16, 2017. At that time, the parties reached an agreement. Mother agreed with the severe physical abuse and medical neglect allegations, and CFS agreed to dismiss the substance abuse allegations against Mother without prejudice and the no provision for support allegations. Mother executed a waiver and pleaded no contest to jurisdiction. The juvenile court found true the allegations in the petitions as amended and as agreed to by the parties. The court declared the children dependents of the court and continued the matter for a contested dispositional hearing.
By the contested dispositional hearing on November 30, 2017, CFS continued to recommend no reunification services for either parent and to set a section 366.26 hearing for adoption. The children were placed together with a non-related extended family member, Ms. S. The November 30, 2017 dispositional hearing was continued to February 5, 2018.
By January 31, 2018, Mother had completed several programs through Shields for Families and submitted certificates of competition. She had completed a parenting class; group counseling; an anger management class; a domestic violence class; family education; an alcohol and drug education class; a residential treatment program; a relapse prevention class; and a class dedicated to gender issues. CFS noted that the certificates did not provide information regarding the number of sessions attended for each service or Mother's level of benefit.
CFS spoke with Mother's counselor at Shields for Families. The counselor reported that the maternal grandmother was a "trigger" for Mother and contributed to Mother being impulsive. The counselor also stated that Mother had an unhealthy relationship with Father and that they had a history of domestic violence and substance abuse. Overall, the counselor reported that Mother was doing "very well in the program and ha[d] made a lot of progress within the last month." Mother had started a new job and participated in the inpatient program. Mother's counselor noted that Mother had realized and acknowledged that she needed to work on becoming less impulsive and having a "professional, respectful approach and interaction with other people."
The contested dispositional hearing was held on February 5, 2018. Mother testified at that hearing. In relevant part, Mother maintained that it was her brother who had caused the marks and bruises on Am. by stomping on her leg and hitting her with a closed fist. Mother explained that her brother was a "gang banger" and she was in fear for her life and the lives of her family members. Mother acknowledged that she had originally given a different statement as to how Am. sustained her injuries. Mother indicated she did not understand the "horrible" extent of Am.'s injuries caused by her brother until she viewed the pictures taken at the hospital. However, having participated in several programs through Shields for Families, she learned that "[CFS] is not here to harm us, but it's here to help us." The program was prepared to assist Mother with housing if the children were to be returned to her custody. She reported having enjoyable visits with the children wherein the children and her color, make food, and play together. She believed that she had a "strong bond" and "close relationship" with the children and that she would be able to protect the children and prevent harm to them in the future.
Mother admitted to having yelled and hitting the children with a belt, a flip-flop, a "choncla," and her hand. However, she denied seeing any scars or bruises following the disciplining. Mother continued to deny that the children had old and new bruises and claimed they were birthmarks. She also stated that her brother hit Am. with a belt, and when asked why she had not disclosed that information earlier during her testimony, she asserted that "Nobody asked me." When asked how Am. received her bruises, Mother stated, "I don't know." Mother also did not believe her mother was a trigger for her despite her therapist's opinion.
The children's caregiver also testified. She explained that the children were happy to see Mother at the beginning of visits and that the children cried when visits ended. She stated that the children asked about Mother in between visits and when they would be going home. She acknowledged that the children acted happy when they returned from the visits but noted that the children and Mother were mutually close to each other.
Following testimony, CFS's counsel argued the court should deny reunification services to the parents. Counsel questioned Mother's credibility when Mother claimed she had not seen any bruises on Am. despite the fact that Mother had bathed the child the day before the seat belt incident and the child went swimming with the family the day of the incident. Counsel also pointed out that it took Mother five months and several different social workers before Mother disclosed the new explanation on how the child sustained the marks and bruises, blaming the maternal uncle for the injuries despite the fact that the child clearly identified Mother and the maternal grandparents as the culprits of the injuries. While acknowledging Mother's progress in services, CFS's counsel pointed out that Mother's testimony was self-serving and lacked insight into the triggers of Mother's anger. Counsel also argued that providing services was not in the children's best interest. Minors' counsel argued that Mother did not appear to benefit from the services she was taking and that there was no indication whether she would be able to protect the children. Mother's counsel argued that reunification services were in the best interest of the children because she shared a bond with the children.
Following argument, the juvenile court acknowledged that it had been "tempted to give [Mother] services" because Mother's demeanor had changed demonstrating benefit in services. However, the court questioned Mother's truthfulness, and did not find Mother's testimony credible. The court nonetheless invited a section 388 petition from Mother explaining that it "need[s] some more honesty about what is going on." The court denied reunification services to the parents pursuant to section 361.5, subdivision (b)(5), (6), and (7), and set a section 366.26 hearing.
On February 9, 2018, Ms. S. requested the children to be removed from her care due to financial reasons. As a result, on June 5, 2018, CFS requested a continuance of the section 366.26 hearing to locate an adoptive home. The children were making progress medically and emotionally. Developmentally, IRC did not find As., S., and Am. qualified as disabled children. D., however, "failed in the personal-social, fine motor-adaptive, language, and gross motor areas." Therefore, she was referred to IRC for services. In regard to the visits, no visits took place in the month of March 2018 because of Mother's incarceration and transportation issues. When Mother did visit, the visits were appropriate.
On June 5, 2018, the court granted CFS 120 days to seek an adoptive placement for the children. A further section 366.26 hearing was set for October 3, 2018.
At the October 3, 2018 hearing, CFS requested another 180 days to identify an adoptive home for the four children. D. was diagnosed with a growth problem and developmental delays, and referred for services to IRC and the Screening, Assessment, Referral and Treatment program (SART). The other three children were referred to Children's Treatment Services at SART. Nonetheless, CFS found the children to be appropriate for adoption. Mother continued to visit the children frequently during this reporting period. The visits were appropriate with no reported concerns. On October 3, 2018, the court continued the matter and set a further section 366.26 hearing for April 3, 2019.
On October 30, 2018, Mother filed a 388 petition, requesting the court vacate the section 366.26 hearing and grant her reunification services. In support, in her written declaration, Mother relied on the certificate of completion presented at the contested dispositional hearing on February 5, 2018, which Mother "hoped would convince the court that she should be granted reunification services." Mother also asserted that she attended 12 sessions of individual counseling where she "address[ed] the problems in her life that lead [sic] to the removal of her children." Furthermore, Mother "[took] steps to firm up her sources of income" with her social security income and by attending training to become a security guard. Mother explained that the modification of the prior court order was in the children's best interest because "they [were] not in a concurrent home at this time" and it would give them "a chance to reunify with their Mother." Mother also referred to her frequent visits with the children that went well and were "appropriate for all concerned."
On November 1, 2018, the court set the matter for a prima facie hearing and ordered CFS to respond.
CFS recommended that the court deny Mother's section 388 petition. On November 14, 2018, the social worker spoke with Mother to discuss Mother's request. When asked about Am.'s severe physical abuse, Mother reported that she "'lied on the stand'" when she previously testified that it was her brother who had caused Am.'s injuries. She now claimed it was the maternal grandmother who had hit Am. with a belt and caused the child's injuries. Mother stated that the maternal grandmother hit the children prior to CFS involvement and when the children reported the abuse, Mother ignored them because she "'wanted to hang out with friends and go to the club.'" Mother also explained that maternal grandmother suffered from alcohol abuse which perpetuated the physical abuse when the maternal grandmother was drunk. Consequently, the maternal grandmother lost custody of Mother's younger brother. Mother further asserted that she distanced herself from the maternal grandmother.
The social worker also met with Am. on November 26, 2018, to discuss the child's thoughts on the permanent plan of adoption and the possibility of returning home. Am. was "swift and absolute" when declining the idea of returning to her mother. Instead, Am. wanted to return to a respite caregiver who provided temporary care to the child in September 2018. Am. also stated that she was comfortable in her current placement and that she did not feel safe with Mother. She reiterated that she wanted to stay with the respite caregiver. When the social worker attempted to explore with Am. the reason(s) why she did not want to return to her mother, Am.'s "mood shifted from excitement to quiet and reserved." On the other hand, S. reported feeling safe with Mother and expressed her interest in returning home to Mother. As. agreed with S.
CFS was concerned that despite Mother's acknowledgment that the maternal grandmother physically abused Am., Mother continued to rely on the maternal grandparents for support. In addition, Mother continued to advocate for the maternal grandmother to have regular visits with the children and to participate in special occasion gatherings with the children. While the social worker commended Mother for completing her services, the social worker believed the inconsistencies in Mother's actions and a new explanation of the children's injuries indicated Mother's failure to benefit from services. The social worker also noted that Mother had not addressed the severe physical abuse inflicted on Am. Additionally, the social worker indicated that an adoptive home had been located in San Joaquin County and CFS intended to transition the children into their new home. The prospective adoptive family was excited about welcoming all the girls into their home and were eagerly awaiting the placement to occur. CFS continued to recommend the setting of a section 366.26 hearing with a plan of adoption as it remained in the best interest of the children. CFS also recommended that the parents' visits be reduced to one time per month supervised for two hours due to the parents' inconsistent visits and the distance of the prospective adoptive home.
A prima facie hearing on Mother's section 388 petition was held on December 17, 2018. Mother's counsel commended the social worker's report as "a very well-written and informative response" and noted staff from IRC was at the hearing to offer Mother support. Counsel acknowledged that Am. had a different opinion regarding her return home from her other two siblings. However, counsel argued, the children were bonded to Mother and they were not in a concurrent planning home. Counsel also asserted that Mother loved the children, the children were bonded to Mother and to the family, and that an effort should be made to reunite the family before they are moved up North to San Joaquin Valley area. Counsel further noted that Mother laid the blame of "some of the [physical] abuse" on the maternal grandmother, however, she understood that she was ultimately responsible for the children's safety and wanted to keep the entire family together.
Minors' counsel stated he was "on the fence," and noted, "While Mother's done some things, . . . it's still unclear as to what really happened and Mother still hasn't taken complete responsibility for her actions." CFS's counsel pointed out that Mother's explanation of Am.'s injuries was "the third story the mother has given." Mother's first explanation was that no marks or bruises existed and Am. was not physically abused by either parent; the second explanation was Mother's brother abused the children and that they were scared of him and got a restraining order against him; and now the culprit of the abuse was the maternal grandmother. Counsel reminded the court that because the denial of the reunification services was based on severe physical abuse, Mother's burden of proof was heightened to clear and convincing evidence and the injuries were consistent with being hit with a belt. Counsel further argued that because an adoptive home had been identified for the sibling set of four, it was in the best interest of the children to be transitioned altogether, particularly because D. had never lived with Mother and the youngest sibling had been out of Mother's care for over a year. Counsel also asserted that the only two girls with a potential bond to Mother were Am. and S., and Am. was adamant on not wanting to return to Mother.
The juvenile court agreed that the focus was on the best interest and safety of the children. The court did not find a substantial change in circumstances or best interest of the children to justify a further hearing. The court encouraged Mother to "come clean and address" the reasons for the children's removal and present another section 388 petition to show the court "a substantial change and that somehow she's in the best interest of the children." The court, therefore, denied Mother's section 388 petition without an evidentiary hearing. In addition, because the focus shifted to permanency and the children were being transitioned into an adoptive placement home out-of-county, the court reduced the parents' visits to twice a month, "one of those times . . . halfway" with a 24-hour confirmation. The court also requested CFS to consider helping the parents financially with "one time halfway visit one time a month."
On January 25, 2019, Mother filed a timely notice of appeal challenging the denial of her section 388 petition without an evidentiary hearing.
III
DISCUSSION
A. Section 388 Petition
Mother argues the juvenile court abused its discretion and violated her due process rights when it denied her section 388 petition without a hearing because her petition with supporting documents showed a prima facie case for changed circumstances and best interest of the children.
Under section 388, a juvenile court order may be changed or set aside "if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child." (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) "[I]f the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition." (Ibid.; § 388, subd. (d) ["If it appears that the best interests of the child . . . may be promoted by the proposed change of order, . . . the court shall order that a hearing be held . . . ."].) If, for instance, the parent makes a prima facie showing of changed circumstances, the juvenile court can still deny the petition without an evidentiary hearing if the parent fails to make a prima facie showing the relief sought would promote the child's best interest. (In re Justice P. (2004) 123 Cal.App.4th 181, 188-190 (Justice P.); see In re Elizabeth M. (1997) 52 Cal.App.4th 318, 322-323.)
"'A "prima facie" showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited.'" (In re Josiah S. (2002) 102 Cal.App.4th 403, 418.) Consequently, section 388 petitions with general, conclusory allegations do not suffice. Otherwise, the decision to grant a hearing on a section 388 petition would be nothing more than a pointless formality. (In re Edward H. (1996) 43 Cal.App.4th 584, 593.) In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. (In re Jackson W. (2010) 184 Cal.App.4th 247, 258.)
We review the juvenile court's order denying a hearing for abuse of discretion. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) "'"When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court."'" (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.) The juvenile court's decision will not be disturbed unless the court "'"has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations]."' [Citations.]" (In re Stephanie M. (1994) 7 Cal.4th 295, 318 (Stephanie M.).) "It is rare that the denial of a section 388 motion merits reversal as an abuse of discretion . . . ." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 522.)
Mother contends the juvenile court should have held a hearing on her section 388 petitions because she established a prima facie showing of changed circumstances and that the proposed change would promote the best interest of the children. We need not decide whether the juvenile court erred in finding there was no prima facie showing of changed circumstances because Mother failed to make a prima facie showing that granting the section 388 petitions and providing reunification services was in the best interest of the children.
Parent and child share a fundamental interest in reuniting up to the point at which reunification efforts cease. (In re R.H. (2009) 170 Cal.App.4th 678, 697, disapproved on another ground in John v. Superior Court (2016) 63 Cal.4th 91, 98-100.) By the point of a section 366.26 hearing to select and implement a child's permanent plan, however, the interests of the parent and the child have diverged. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254.) Therefore, after reunification efforts have terminated or bypassed, the court's focus shifts from family reunification toward promoting the child's needs for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309 (Marilyn H.).) This is a difficult burden to meet when reunification services have been bypassed or terminated. This is because, "[a]fter the termination of reunification services [or bypass of services], a parent's interest in the care, custody and companionship of the child is no longer paramount. [Citation.]" (In re Angel B. (2002) 97 Cal.App.4th 454, 464 (Angel B.).) In fact, there is a rebuttable presumption continued foster care is in the child's best interest. (Ibid.) Such presumption applies with even greater strength when adoption is the permanent plan. (Ibid.) "A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child." (Stephanie M., supra, 7 Cal.4th at p. 317.)
Mother ignores this shift in focus. In her petition, she alleged that a change in the court's order would be in the best interest of the children because they should be given a chance to reunify with their mother and the siblings were not placed together in a concurrent home at that time. She further stated that she had visited the children frequently and the visits were appropriate without any reported concerns. However, in light of the court's focus on permanence and stability and not reunification, her allegation in the petition that it is in the children's best interest to offer her reunification services is conclusory. It does not make a prima facie case because it does not include any facts which would support a finding that the children would be better off with her than continuing in their current placement. In other words, she did not attempt to rebut the presumption that continued out-of-home placement was in the best interest of the children. (See Marilyn H., supra, 5 Cal.4th at p. 310.) Neither in the juvenile court nor on appeal has mother addressed the children's need for permanency and stability and how those interests would be advanced by offering her services. "The presumption favoring natural parents by itself does not satisfy the best interests prong of section 388." (Justice P., supra, 123 Cal.App.4th at p. 192.)
At the time Mother filed her section 388 petition, shortly before the section 366.26 hearing, the children's interest in stability was the juvenile court's foremost concern, outweighing any interest in reunification. The prospect of allowing Mother reunification services to see if Mother would and could do what she was required to do to regain custody would not have promoted stability for the children, and thus would not have promoted the children's best interest. (Angel B., supra, 97 Cal.App.4th at p. 464.) D. was removed from Mother when she was just a few days old. D. had only supervised weekly visits for two hours. By the time Mother filed her section 388 petition, D. had been out of Mother's care for over a year. In addition, there was no evidence to suggest Mother was aware of D.'s growth problem and her developmental delays or that Mother had inquired of D.'s progress while in IRC and SART services. As. was only a year and a half when she was removed from Mother's care and had spent approximately half of her young life out of Mother's care. S. was three years old, and Am. was four years old when they were removed from Mother's care in June 2017. While S. wanted to return to Mother's care, Am. was adamant in her wishes not to return home to Mother. In fact, by the section 388 hearing in December 2018, Am. continued to report that she did not feel safe with her parents. Although Mother's love for her daughters is unquestionable, granting reunification services to Mother would only postpone the children's adoption into a stable and loving home. A prospective adoptive family had been located that was willing to adopt all four girls, thereby preserving the sibling group and maintaining the sibling bond.
On the other hand, Mother had successfully completed numerous programs on her own but had failed to benefit from the services provided. Although it is commendable that she participated and completed services on her own and had shown she could complete services and be a loving mother to her children, she had also demonstrated her failure to address the severe physical abuse allegations. By the time of the section 388 hearing, Mother had provided three different explanations as to how Am. sustained her extensive bruises and marks. She continued to be in denial of the severe physical abuse allegations and placed blame on others. The juvenile court reasonably concluded that, under such circumstances, Mother had not made a prima facie showing that reinstating reunification services would have promoted stability for the children and be in their best interest. (Angel B., supra, 97 Cal.App.4th at p. 464.)
In Angel B., supra, 97 Cal.App.4th 454, the court rejected the mother's contention the juvenile court erred in denying her section 388 petition without holding a hearing. The mother in Angel B. had a long history of drug abuse, unsuccessful rehabilitation attempts, and failure to reunify with another child. After the mother was denied reunification services, she began to improve, enrolling in a treatment program, testing clean for four months, completing various classes, and obtaining employment. Regular visits with her child also went well. (Id. at p. 459.) Nevertheless, when she filed her section 388 petition for reunification services, the court summarily denied her petition without a hearing. The Court of Appeal affirmed, finding no abuse of discretion in the juvenile court refusing to hold a hearing. (Id. at p. 462.)
The appellate court in Angel B. acknowledged the petition showed the mother was doing well, "in the sense that she has remained sober, completed various classes, obtained employment, and visited regularly with [the child]." (Angel B., supra, 97 Cal.App.4th at pp. 464-465.) The court also assumed for purposes of the appeal "that this time her resolve is different, and that she will, in fact, be able to remain sober, remain employed, become self-supporting and obtain housing." (Id. at p. 465, italics omitted.) Nevertheless, the court concluded "such facts are not legally sufficient to require a hearing on her section 388 petition." (Ibid.) The court explained: "[T]here is a rebuttable presumption that, in the absence of continuing reunification services, stability in an existing placement is in the best interest of the child, particularly when such placement is leading to adoption by the long-term caretakers. [Citation.] To rebut that presumption, a parent must make some factual showing that the best interests of the child would be served by modification." (Ibid.) The mother in Angel B. did not make such a showing. Nor does Mother here.
Mother argues that the juvenile court violated her due process right and the Fifth Amendment right against self-incrimination when it "denied [her] a hearing . . . because she didn't admit causing the bruising and marks on Am." Relying on In re Mark A. (2007) 156 Cal.App.4th 1124 (Mark A.) and section 355.1, Mother suggests that the court's finding of failure to benefit impermissibly called for Mother to make self-incriminating statements. Mark A. and section 355.1 are inapplicable under the circumstances of this case.
Under the Fifth Amendment to the Constitution of the United States, no person "'shall be compelled in any criminal case to be a witness against himself.'" The right against self-incrimination can be asserted in any proceeding, civil or criminal. (Kastigar v. United States (1972) 406 U.S. 441, 448.) The privilege protects against disclosures which could reasonably be used in a criminal prosecution or could lead to other evidence that might be so used. (Id. at pp. 444-445.) Immunity from both use and derivative use is coextensive with the privilege and, if granted, is sufficient to compel testimony over a claim of privilege. (Id. at p. 453.)
Dependency proceedings are special proceedings, civil in nature and governed by the Welfare and Institutions Code for the purpose of protecting abused and neglected children. (In re Joshua G. (2005) 129 Cal.App.4th 189, 202; In re Chantal S. (1996) 13 Cal.4th 196, 200.) A witness may assert a privilege against self-incrimination in a dependency case. (Mark A., supra, 156 Cal.App.4th at pp. 1128-1129.) Moreover, to some extent, a parent's right against self-incrimination is protected by a statutory immunity. (§ 355.1, subd. (f).)
Section 355.1, subdivision (f), states: "Testimony by a parent . . . of the minor made the subject of a proceeding under Section 300 shall not be admissible as evidence in any other action or proceeding." This is clearly only a use immunity statute and does not provide protection coextensive with the Fifth Amendment privilege against self-incrimination. (Mark A., supra, 156 Cal.App.4th at p. 1134.) The statute is most useful in a situation where a parent voluntarily testifies.
In Mark A., supra, 156 Cal.App.4th 1124, the father invoked his Fifth Amendment privilege against self-incrimination at a contested jurisdictional/dispositional hearing. (Id. at p. 1132.) The juvenile court concluded that the father's Fifth Amendment privilege was precluded by the statutory immunity in dependency proceedings, and ordered the father to answer. (Ibid.) Upon refusal, the court imposed sanctions by striking the testimony of the father's two other witnesses and adjudicated the children dependents of the court. (Id. at pp. 1132-1133.) On appeal, the appellate court affirmed the jurisdictional finding, but reasoned that the father was entitled to assert his privilege against self-incrimination as section 355.1 did not allow the father the derivative use immunity in a possible future criminal prosecution. (Id. at pp. 1133-1134.) As a result, the court could not compel the father to testify, and by extension, could not impose sanctions by striking the testimony. (Id. at pp. 1142-1143.)
Here, procedurally the case was well past the jurisdictional/dispositional stage. Mother filed her section 388 petition on October 30, 2018, pending the section 366.26 hearing. Furthermore, unlike the father in Mark A., Mother never invoked her Fifth Amendment right against self-incrimination at any of the hearings. In fact, as she acknowledges in her brief, at the dispositional hearing, Mother specifically testified that she had yelled and hit the children but denied noticing any marks and bruises on the them. Moreover, at the jurisdictional hearing, Mother, who was represented by retained counsel, filed a waiver of rights, specifically waiving "[a]ny privilege against self-incrimination in this proceeding." In addition, unlike the juvenile court in Mark A., the court here did not compel Mother to testify nor did it contemplate sanctions for a failure to testify. Rather, the court asked Mother to "come clean" in addressing the reasons for the children's removal. This proviso was especially crucial not only because the court found Mother's testimony at the contested dispositional hearing not credible, but also because Mother informed the social worker she had "'lied on the stand'" under the penalty of perjury when she blamed her brother for Am.'s marks and bruises.
Paradoxically, the Mark A. court expressly acknowledged the existence of circumstances where "the law may legitimately require a parent to admit responsibility for wrongful acts as a condition to be fulfilled in therapy." (Mark A., supra, 156 Cal.App.4th p. 1142.) The Mark A. court explained, "and while the parent has some protection if he or she chooses to testify, the consequences of the parent's decision not to acknowledge his or her wrongdoing, or not to testify, must be limited to the usual consequences occasioned by the lack of cooperation in the reunification process, or by the failure to present evidence." (Ibid.)
A parent's failure to acknowledge a wrongdoing can lead to the prohibition of reunification services. (See In re A.M. (2013) 217 Cal.App.4th 1067, 1076-1077 [reunification services is inappropriate for a parent who professes ignorance about the cause of broken bones in an 11-week-old baby].) When reunification services are ordered, it is permissible to require a parent to admit to the wrongdoing and to seek treatment based on this admission. (See In re Candida S. (1992) 7 Cal.App.4th 1240, 1250.) Accordingly, here, the juvenile court could reasonably infer Mother's failure to benefit from services when (1) she devised three different stories regarding the cause of Am.'s extensive serious injuries; (2) her admission to lying about the cause of Am.'s injuries on the witness stand; and (3) her refusal to admit any wrongdoing, despite Am.'s repeated statements to the contrary.
Under the circumstances of this case, we conclude Mother had not made a prima facie showing that the children's best interest would be served by offering Mother reunification services. The juvenile court therefore did not abuse its discretion in denying Mother's section 388 petition without an evidentiary hearing.
B. Visitation Order
Mother also claims the juvenile court erred in failing to require CFS to provide transportation assistance for visitation with the children six hours away in Northern California. She argues this omission violated her due process rights to visit her children and made it impossible for her to prove the parental-beneficial relationship exception to adoption at the section 366.26 hearing.
A due process claim presents a question of law. Thus, we review Mother's allegation de novo. (In re H.K. (2013) 217 Cal.App.4th 1422, 1433.) To prevail on her due process claim, Mother must show she had a due process liberty interest in and "entitlement" to the requested transportation assistance. (In re Christina A. (1989) 213 Cal.App.3d 1073, 1078-1079.) She has not done so.
The timing of Mother's complaints is significant in that it relates only to the period after reunification services were bypassed and after the children were moved to an adoptive home. Before termination or bypass of reunification services, the state has an affirmative obligation to facilitate family reunification. (In re Julie M. (1999) 69 Cal.App.4th 41, 49.) Reunification services must include visitation between parent and child "as frequent as possible, consistent with the well-being of the child." (§ 362.1, subd. (a)(1)(A).) Accordingly, during the reunification period or prior to bypass of services, "[v]isitation between a dependent child and his or her parents is an essential component of a reunification plan . . . ." (In re Mark L. (2001) 94 Cal.App.4th 573, 580.)
In contrast, "[a]fter the termination of reunification services [or the bypass of services], the parents' interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point 'the focus shifts to the needs of the child for permanency and stability' [citation]. . . ." (Stephanie M., supra, 7 Cal.4th at p. 317; accord, Marilyn H., supra, 5 Cal.4th at p. 309.) Post-reunification, the juvenile court does not need to consider the possibility of family reunification unless the parent affirmatively demonstrates changed circumstances sufficient to revive the issue. (Marilyn H., at p. 309.) After reunification services are terminated or bypassed, the juvenile court must "permit the parent . . . to visit the child" unless visitation would be detrimental to the child (§ 366.21, subd. (h), italics added) so that the parent has a meaningful opportunity to demonstrate changed circumstances in support of a petition pursuant to section 388 (Marilyn H., at p. 309), or to establish the parental-relationship exception of section 366.26, subdivision (c)(1)(B)(i). (See In re Hunter S. (2006) 142 Cal.App.4th 1497, 1504-1505 (Hunter S.).) Here, Mother had visitation rights, but nothing in section 366.21, subdivision (h), imposes a mandatory duty on the juvenile court or the agency to facilitate post-reunification visitation to the extent required during the reunification period.
Mother relies on Hunter S., supra, 142 Cal.App.4th 1497 to support her claim that the court should have ordered CFS to provide her with transportation assistance to cover the cost of travel to visit the children at least half way. In Hunter S., "the court granted visitation in theory, [but] none was permitted in reality." (Id. at p. 1505.) There, the juvenile court ordered visitation "'as can be arranged,'" and the child ultimately was given virtually complete discretion to control his contact with his mother. (Ibid.) The mother spent more than two years asking the court to enforce the visitation order, but the court did nothing in response. (Ibid.) The juvenile court in Hunter S. "did not believe it had the power or duty to ensure visits actually took place." (Ibid.) Hunter S. is inapposite, however, because there is no evidence here of a failure to enforce a visitation order. In addition, after the court denied Mother's section 388 petition and pending the section 366.26 hearing, the juvenile court continued Mother's visitation, setting the parameters of frequency and duration. While visiting the children in Northern California six hours away may be financially, physically, and emotionally difficult for Mother, there is no indication in the record that visitation would not occur pursuant to the court's order or that any party would impose obstacles to visitation. Accordingly, Mother has not demonstrated that the juvenile court failed to enforce its visitation order as in Hunter S.
In conclusion, parents do "have the right of visitation from the fact of parenthood. [Citations.] 'The parental right to have children and to the custody of those children is included among the liberties protected by the due process clause.'" (In re Jennifer G. (1990) 221 Cal.App.3d 752, 756.) However, the time to take advantage of the due process "safeguards built into the dependency scheme" (Hunter S., supra, 142 Cal.App.4th at p. 1504), and the time to establish the factors contained in the exception to adoption of section 366.26, subdivision (c)(1)(A), occurred from the children's birth until reunification services were terminated or, in this case, bypassed. Mother has failed to establish a violation of her right to due process.
IV
DISPOSITION
The juvenile court's orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. SLOUGH
J.