Opinion
E072275
10-04-2019
In re N.O. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. S.L., Defendant and Appellant.
Monica Vogelmann, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J268690, J268691, J268692, 268693 & J274942) OPINION APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander, Judge. Affirmed. Monica Vogelmann, 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
S.L. (Mother) is the mother of five children: 13-year-old D.R., seven-year-old S.O., five-year-old J.O., four-year-old N.O., and one-year-old K.O.-L. The children were removed from parental custody due to ongoing domestic violence issues and the parents were offered reunification services. During the reunification period, Mother reconciled with Father and became pregnant with K.O.-L. Eventually, the juvenile court terminated reunification services for the four older children, denied the parents reunification services in K.O.-L.'s case, and set a Welfare and Institutions Code section 366.26 hearing. Pending the section 366.26 hearing, Mother filed a section 388 petition seeking return of her five children to her care. The juvenile court denied Mother's section 388 petition without an evidentiary hearing.
J.O. (Father) is the father of N.O., J.O., S.O., and K.O.-L. Father is not a party to this appeal. D.R.'s father is C.R., and he is also not a party to this appeal.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
On appeal, Mother contends the juvenile court abused its discretion in denying her section 388 petition without an evidentiary hearing because she had demonstrated her circumstances had changed and granting the petition was in the children's best interest. We find the court did not abuse its discretion and affirm the order denying Mother's section 388 petition. Mother failed to make a prima facie showing that the children's best interest would be served by returning the children to Mother's care.
II
FACTUAL AND PROCEDURAL BACKGROUND
The family came to the attention of the San Bernardino County Children and Family Services (CFS) when a referral was received alleging emotional abuse to the children after the children had witnessed Father physically assault Mother. Father was arrested and booked for felony spousal abuse. Mother acknowledged that Father had punched her in the face and pulled her hair. In discussing the protective steps with the social worker, Mother stated she would call law enforcement if Father were released from custody and obtain a restraining order. However, when the social worker followed up with the family some time later, the worker discovered that Father had been released from custody and had been having extended visits with the children. Mother confirmed that she had obtained a no negative contact restraining order. The social worker developed a safety plan with both Mother and Father. According to the plan, the parents agreed to participate in domestic violence services, including speaking with a domestic violence counselor.
When consulting the domestic violence counselor, the social worker learned that S.O. had disclosed "'mommy, daddy pow-pow,'" but the child could not elaborate. D.R. maintained that the parents "'don't throw things or hit each other.'" The parents denied additional episodes of domestic violence.
After the development and implementation of the safety plan, the social worker discovered another domestic violence incident. According to Mother, Father pushed Mother while she was holding N.O. However, the reporting party stated Father hit Mother with a stick and took N.O. from Mother's arms. Because of the ongoing domestic violence and a failure to benefit from preplacement preventive services, CFS placed the children into protective custody pursuant to a detention warrant.
On December 15, 2016, CFS filed petitions on behalf of all four children pursuant to section 300, subdivision (b) (failure to protect).
Once in protective custody, D.R. disclosed that Father punched Mother in the ear causing it to bleed, threw her on the floor, covered Mother's mouth to stifle her cries for help, and took away Mother's cell phone to prevent her from calling the police. Father eventually released Mother who ran outside to call the police. D.R. reported that although he had witnessed a lot of yelling and some throwing of objects in the past, this was the only incident he had observed where Father physically hit Mother. D.R. further disclosed that N.O. "'just cries and screams'" in response to Father's yelling, while J.O. stretches his arms with his palms out and says, "'no!'"
At the December 16, 2016 detention hearing, the juvenile court formally detained the children and offered the parents services pending the development of the case plan. The court also ordered supervised visits for the parents with visits to occur separately.
N.O. and D.R. were placed in the same foster home, while J.O. and S.O. were placed in another foster home. CFS was unable to find a home that would take all four children but intended to move the children together once a home was located. The foster parents were arranging sibling visits.
CFS recommended that the domestic violence allegations be found true and that services be offered to the parents. Mother readily acknowledged the issue of domestic violence in her relationship with Father and explained that she was no longer willing to remain in the abusive relationship. Mother stated that she and Father had been arguing with increasing frequency after they moved to the high desert area in March 2016 and that their arguments progressively turned physical. Specifically, on August 19, 2016, police responded to the parents' home in El Mirage for a domestic disturbance call. When Mother met the police at the residence, she was crying and there was "redness and scratches on the right side of her face." Mother explained that the altercation started with a verbal argument regarding finances. During the argument, Father grabbed Mother by her hair and pulled her to the floor in the hallway. "Once on the ground, [Father] punched [Mother] in the face with a closed fist 4 to 5 times and kicked [her] in the lower back approximately 5 times." Father also placed his boot on Mother's throat while D.R. and J.O. watched. N.O. and S.O. were reportedly asleep. Father threatened to kill Mother if she called the police. Mother feared he would harm her if he were released from custody but did not believe he would kill her. Mother's injuries included, among others, a two-inch scratch to the right side of her nose, an approximately three-inch scratch to her right temple, and a laceration inside her right ear which was bleeding. D.R. recalled seeing the blood coming out of his mother's ear and his brother, J.O., yelling at his father to stop hitting their mother. D.R. confirmed there was "a lot of fighting between his parents," and the fighting made him scared.
CFS recommended to dismiss the history of substance abuse allegation as to Father. However, the court found the allegation true based on Father's missed drug tests.
Following the August 19, 2016 domestic violence incident, Father was arrested and charged with spousal abuse. Mother obtained a restraining order against Father. Father was released from custody on September 9, 2016, and Father continued to periodically reside with Mother and the children. On November 9, 2016, police again responded to the home after the parents got into an altercation over a utility bill. Specifically, Father began to throw objects around the home. Fearing Father might assault her, Mother walked away from Father while carrying N.O. in her arms. Father then placed both hands on Mother's back and pushed her. Father left the residence before the police arrived.
Mother believed that the fighting did not affect the children or pose a risk of emotional or physical damage. However, she appeared to realize the detrimental effect at the time of her interview with the social worker. In addition, Mother was cooperative and willing to participate in services. The family lived in an isolated area and had limited resources and income. Both Mother and Father were Mexican Nationals and their ability to work in the United States was limited by their immigration status. Mother had no transportation or access to services, and her visa was set to expire in October 2017. Father left the home following the detention hearing, and D.R.'s father's whereabouts were unknown.
The family had three previous child welfare referrals in Los Angeles County in 2013, 2014, and 2015, and had received substance abuse services, counseling, parenting, transportation assistance, community resources referrals, crisis intervention, and risk assessment, and other case management services. The 2013 and 2014 referrals were unfounded; however, in 2015, N.O. tested positive for amphetamines at birth. Mother and Father agreed to participate in voluntary maintenance services. Mother successfully completed all components of her case plan, and the case was closed when the family relocated to San Bernardino County in March 2016.
The jurisdictional/dispositional hearing was held on January 6, 2017. Mother submitted a waiver of rights and submitted on the social worker's reports. Father was not present and the court proceeded on his default. The court found true the allegations in the petitions and declared the children dependents of the court. The parents were offered reunification services and ordered to participate in their case plan. Mother's case plan required her to participate in a domestic violence program, individual counseling, and a parenting program.
By the six-month review hearing, CFS recommended additional reunification services for Mother and that services for Father be terminated. Mother was one session short of completing her parenting program and had completed four sessions out of 12 in her domestic violence prevention classes. There were no new reports of domestic violence at Mother's residence. However, the social worker was concerned that Mother did not have a safety plan developed, which she was instructed to do in collaboration with her domestic violence prevention instructor. Mother was making moderate progress in therapy, and additional eight sessions of therapy were recommended. In addition, Mother had a full-time job at a nursery. Father had not complied with any portion of his case plan.
Mother also consistently visited her children twice a week for two hours and the children enjoyed their visits with Mother. The court liberalized Mother's visits by ordering "short unsupervised visits . . . in a neutral location" and no contact with Father during those visits. The court further granted CFS authority for overnight and weekend visits, as well as authority to return the children to Mother by approval packet.
On September 21, 2019, the juvenile court terminated Father's reunification services and granted an additional six months of services to Mother. The court also granted Mother unsupervised visits twice a week for two hours with discretion to CFS to liberalize the visits when appropriate.
By the 12-month review hearing, CFS recommended terminating Mother's services and setting a section 366.26 hearing. Although Mother had completed her case plan, she did not appear to benefit from the services provided to her. She had continued to associate with, and to engage in, a relationship with Father, and had not regularly visited the children. Father appeared at several of Mother's visits and frequently showed up at Mother's residence. Mother reported she was looking for another residence and had informed Father she did not want him showing up at her home. Father, however, became angry and refused to leave. On one occasion, Father took the battery out of Mother's car to prevent her from leaving. D.R. and S.O. confirmed that Father had appeared at several of their visits, and when Mother had asked him to leave, he refused to comply.
On December 6, 2017, Mother called the social worker crying and reported she had been beaten up by Father. She called the police and was waiting for their arrival. On December 7, 2017, Mother's visits reverted to supervised visits because of the safety concerns. On December 29, 2017, Mother obtained a temporary restraining order on behalf of all four children. In the section of "Recent Abuse," Mother detailed the December 6, 2017 incident explaining that Father "was angry because he thought I was going to have the kids, and [Father] grabbed my phone out of my hand, and I asked for him to give it back, and he threw it at me and hit my face on my forehead close to my eye."
The contested 12-month review hearing was held on January 5, 2018. At that time, Mother was called to testify. In pertinent part, Mother denied her prior statements in support of the temporary restraining order and denied being "beat up" by Father on December 6, 2017. Instead, she insisted that the police report was made because Father had refused to leave her residence. Mother did not believe she needed a restraining order, but rather, that the social worker had required one. She also did not move into a domestic violence shelter offered by the parent program. During her testimony, Mother disclosed that she was pregnant with her fifth child but did not believe Father was the father. Mother named another man as the father of the child. However, she conceded that during a 15-day period about six months ago, she had sexual relations with Father. Mother admitted that it was "'a little difficult'" with Father to take actions to prevent future incidents of domestic violence, but believed Father did not pose any risk to the children.
Following oral argument, the court terminated Mother's reunification services and set a section 366.26. The court ordered supervised visits for Mother twice a week for two hours with Mother to have no contact with Father during the visits.
On January 11, 2018, Mother filed a notice of intent to file a writ petition. On February 8, 2018, this court ordered Mother's petition to be dismissed pursuant to a non-issue letter dated February 5, 2018, from Mother's counsel.
Following the birth of Mother's fifth child, K.O.-L., on February 20, 2018, CFS filed a petition on behalf of K.O.-L. pursuant to section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), and (j) (abuse of sibling) based on the parents' history of domestic violence and their failure to reunify with K.O.-L.'s siblings. CFS recommended that reunification services for the parents be bypassed pursuant to section 361.5.
A paternity test confirmed that Father was the biological father of K.O.-L.
Mother informed the social worker that she had been residing in a domestic violence shelter since February 2018. Mother admitted that she was in a relationship with Father and acknowledged that there were domestic violence incidents in the relationship in the last two years. Mother had obtained a temporary restraining order for which she had a court date in March 2018. Father had been arrested for burglary and had been incarcerated with an unknown release date since December 28, 2017.
At the detention hearing held on February 21, 2018, Father was present in custody. K.O.-L. was formally detained, and Mother was provided with supervised visits once a week for two hours.
Mother disagreed with the allegations in K.O.-L.'s petition because she was living in a domestic violence shelter. She also stated that she did not have a history of domestic violence within the past year, but acknowledged that she should have changed her address so Father would not have been able to find her. She also did not believe K.O.-L. would be at risk of abuse and neglect if returned to her care, explaining that she was obtaining a restraining order against Father and taking classes in peer support, life skills, victim impact, and participating in individual therapy at the domestic violence shelter. She believed that obtaining the restraining order and taking the classes at the shelter would keep K.O.-L. safe in her care. When asked how she would protect K.O.-L., Mother appeared to struggle to come up with answers.
At a pretrial settlement hearing on April 24, 2018, the juvenile court indicated it was "open to services to the mother if she was still in her domestic violence [shelter]." Nonetheless, by the end of April 2018, Mother had left the domestic violence shelter and returned to her prior place of residence. In addition, she was not participating in any predispositional services.
On May 3, 2018, at the contested jurisdictional hearing in K.O.-L.'s case, the juvenile court found true the section 300, subdivisions (b) and (j) allegations. The court thereafter proceeded to the contested dispositional hearing. Mother was called to testify. Mother testified that in her efforts to remedy the issues that led to the removal of K.O.-L.'s four siblings, she had changed her address and "cut communications with the people that [she] ha[d] in common with [her] husband." She also entered a domestic violence shelter in February 2018, which she left on March 26, 2018. Prior to leaving the shelter, she had participated in a victim impact domestic violence program, a parenting program, and individual counseling. She continued to participate in the programs offered despite no longer residing at the shelter and was scheduled to complete the programs in one month. Mother explained that she left the domestic violence shelter because it had a rule prohibiting her from engaging in illegal employment and she did not have legal documents to work in the U.S. Mother denied being in a relationship with Father, but acknowledged that Father continued to pay her rent and came over to her residence "now and then." She also was unsure if she would reconcile with Father in the future. She admitted that she was not afraid of Father but obtained the temporary restraining order because otherwise she had "more difficulties in court." Mother failed to follow up in her pursuit of a permanent restraining order.
Following argument by the parties, the court found by clear and convincing evidence that the bypass provision under section 361.5, subdivision (b)(10), applied to both parents. The court explained that Mother's testimony was inconsistent with previous reports and did not find her to be "particularly" credible. The court also noted that Mother continued to minimize the issues that led to the siblings' removal despite receiving services and that the record showed Mother continued to have ongoing contact with Father. The court further stated: "The Court was very frank at the beginning of this case that I was open to giving mom additional services if she remained in the shelter and showed a benefit finding that that would show reasonable efforts to treat the issues. [¶] Subsequent to that mom left the shelter. I don't find it to be simply a coincidence that she left at or around the time that father was released. I find that to be consistent with the pattern of this case. She went back to the common address according to the information in the report and her testimony, the very address that she acknowledges in the report was a bad idea because it led to continued contact with the father." The court then denied services to the parents and set a section 366.26 hearing in K.O.-L.'s case. Mother was provided with supervised visits once a week for two hours and ordered to visit separately from Father.
CFS recommended to continue the section 366.26 hearing in N.O., S.O., and J.O.'s case for 120 days in order to find a concurrent planning home for all three children to be placed together. Similarly, CFS requested additional time to find an adoptive home in K.O.-L.'s case. The court noted that K.O.-L. should be included in the search for an adoptive placement for all four siblings. Mother continued to maintain regular contact with the children and the visits remained appropriate. The social worker opined that the children would benefit from continued visitation with Mother.
On June 13, 2018, CFS sought the court's permission to place K.O.-L., N.O., S.O., and J.O. on California Kids Connection, a state-sponsored electronic media recruitment program, and AdoptUSKids, a national adoption program, in order to find an adoptive home for the children. The social worker also sought to place the children on the Heart Gallery website. The request was granted on June 28, 2018.
As to D.R., the child continued in a permanent placement in a foster home, which remained appropriate. D.R.'s placement with his four half siblings was not considered appropriate as D.R. had previously made threats that he wanted to kill his younger brother J.O. D.R. was receiving individual counseling, psychotropic medication, and participated in "WRAPAROUND services." D.R. did not exhibit any behavioral or developmental concerns and was doing well in his foster home. D.R. had a positive attitude, was getting along with the other children in the home, and was happy where he was residing. D.R. visited his half siblings and Mother weekly for two hours. D.R., however, reported that Mother did not spend much time with him during the visits, but rather, seemed more interested in his half siblings. When asked if he wanted to attend separate visits with his Mother, D.R. stated "no."
On August 16, 2018, CFS conducted a match meeting with an out-of-state prospective adoptive family that was interested in adopting K.O.-L.
At the September 5, 2018, further section 366.26 hearing, CFS requested additional time to assess the prospective adoptive family in the state of Maryland. By that time, the family was also interested in adopting all four children. The court authorized the assessment under the Interstate Compact on the Placement of Children (ICPC). The court noted that "[a]t this time locating permanency where all the children can be placed together is the highest priority." The matter was continued to January 14, 2019, to complete the ICPC assessment.
By December 2018, CFS advised the court that the current foster parents desired to adopt all four children, N.O., J.O., S.O., and K.O.-L., and that CFS no longer sought to move the children to Maryland under the ICPC.
On December 11, 2018, Mother filed a section 388 petition on behalf of all five children. Mother sought the return of the children to her care and increased visitation to include unsupervised visits, overnights, and weekends. She contended that her circumstances had changed because she had participated in individual counseling which addressed the reasons for the children's removal. She further asserted that she "now [had] the tools to properly identify domestic violence, protect herself and her children from risky relationships and [was] no longer in an abusive relationship."
In support of her changed circumstances, Mother attached a progress report from individual counseling. In part, the progress report noted that Mother "referred herself to therapy to address events that led to the removal of her children" and that Mother was "willing to work diligently towards reunifying with her children." The progress report further stated that Mother had "made significant progress by addressing history of DV relationship, identifying the signs of a DV relationship and how to prevent it," that Mother had a "restraining order against her husband and plan[ned] to renew it," and that Mother had "dissolved the relationship, and ha[d] made no attempt to contact the Ex husband, as well as discontinue communication from any acquaintances of the ex husband." In Mother's therapist's opinion, Mother was actively engaged in therapy and "gain[ed] personal growth and self awareness through understanding the events that led to the removal of her children."
Reportedly, Mother recognized that she "was in an emotionally abusive relationship," and in her therapy sessions, she acknowledged that staying in an emotionally and physically abusive relationship was an error and exposed her children to an unhealthy environment. As to the skills developed, Mother developed a safety plan in which she included community resources and was planning to relocate with her children. Furthermore, Mother believed that it was in the children's best interest "to be together and grow up with a family unit."
On December 14, 2018, the court ordered CFS to prepare a response to Mother's section 388 petition and set the matter for a hearing.
On January 14, 2019, CFS recommended that the children's current foster parents adopt N.O., J.O., S.O., and K.O.-L. The foster family expressed their love of all four children and desired to adopt the children because it was in the children's best interest. N.O. and S.O. had resided in their home for almost two years, and J.O. for almost a year, while K.O.-L. had been placed in the home since birth in February 2018. The family was prepared to meet the children's needs with the help of their adult son, and the children appeared to be very bonded to their foster parents. The children were happy and stable in their foster home and the foster parents were committed to meeting the children's needs in a safe and supportive manner. Additionally, the foster parents ensured that the children visited their sibling, D.R. The social worker believed the five children would experience emotional trauma if the visits were to discontinue on account of the out-of-state placement. D.R. expressed his agreement with his four siblings being adopted by their current foster parents.
On January 30, 2019, CFS filed a response to Mother's section 388 petition. CFS recommended that the court deny Mother's section 388 petition because CFS believed Mother had not benefitted from her services, she did not have "a clear grasp" and understanding of what her domestic violence triggers were, she had unstable housing, and CFS was unable to assess her live-in boyfriend. In her interview with the social worker, Mother indicated that she had ended her relationship with Father and that she was currently involved in a new relationship and resided in her boyfriend's home. Mother reported no domestic violence in her current relationship and indicated that she had been in communication with Father because he wanted to visit the children. When the social worker made an unannounced visit to Mother's residence, the worker observed a dirty home cluttered with personal belongings. In addition, there were no working electrical lights in one bedroom; however, utilities were working in other parts of the home. Overall, the social worker believed the home was below community standards for cleanliness. Mother informed the social worker that she would be moving to the house next door, but her boyfriend had not consented to the social worker's inspection of the neighboring property as of January 22, 2019.
Mother was unable to identify domestic violence triggers that could impact her and the children's safety if Mother were involved in another relationship. She had full-time employment but did not have a plan as to who would care for the children while she was at work. Mother did not complete the Victim Impact and Peer Support Group which she started to attend in August 2018. Mother's safety plan included phone numbers to two domestic violence shelters and several people in her support system. Mother also produced a copy of the permanent restraining order against Father and continued to take parenting classes. Mother continued to regularly visit the children weekly for two hours. She also was spending more time with D.R. The visits went well and were appropriate. Mother reported that she liked the way her children were treated by the children's foster parents and had no concerns with the foster parents.
Father had been incarcerated since July 28, 2018. --------
The social worker opined that "[Mother] did not seem to have a clear grasp of what her domestic violence triggers were. She only identified [Father] as a trigger. She seems to lack the understanding as to what her triggers are that could possibly carry over in to any other relationship she may have. She did not explain what the cycle of violence was in her life." As to the best interest of the children, the social worker believed "it would be extremely traumatic" for S.O., N.O., J.O., and K.O.-L. to be removed from their foster parents "who want[ed] to adopt them."
At the section 388 prima facie hearing on February 5, 2019, Mother's counsel argued for an evidentiary hearing because "based on the therapist's update attached to the 388, mom does meet the first standard for the required hearing of changed circumstances in that she has delved into the domestic violence issues with the new therapist." Minors' counsel asked the court to deny Mother's request for an evidentiary hearing because Mother failed to show she had benefitted from services in that she was unable to identify triggers for domestic violence and had no definitive safety plan to keep herself safe from domestic violence. County counsel agreed with minors' counsel, adding that "the seven [counseling] sessions [do not show] a change of circumstances or best interest to the children."
The court denied Mother's request for an evidentiary hearing on her section 388 petition. The court also denied Mother's section 388 petition, finding the petition failed to state a change of circumstances and it was not in the children's best interest to grant the petition. In denying the evidentiary hearing, the court noted: "I am pleased to see that mother continues to access services, but I will note that throughout the life of the case she had participated in services, and the real issue is whether or not mom has shown benefit from those services. [¶] . . . [¶] I will also note that the conversation the social worker had with the mother is that despite an additional seven sessions of therapy regarding domestic violence, mother does not have a clear grasp of the cycle of violence, her responsibility in that violence, and what the triggers are or a clear safety plan." The court also pointed out that Mother continued to communicate with Father which was in direct violation of the restraining order.
As to best interest of the children, the court noted that the children were placed in a concurrent placement home which was prepared to provide permanency to the large sibling set and Mother herself admitted that she was impressed with the foster parents and their parenting techniques. Thereafter, a further section 366.26 hearing was set for May 14, 2019, for K.O.-L., N.O., S.O., and J.O. D.R.'s permanent plan of legal guardianship was set for August 5, 2019.
On March 6, 2019, Mother filed a timely notice of appeal challenging the juvenile court's denial of her section 388 petition without an evidentiary hearing.
III
DISCUSSION
Mother argues the juvenile court abused its discretion when it denied her section 388 petition without an evidentiary hearing because her petition with the supporting progress report from her therapist 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, 521.)
Mother contends the juvenile court should have held a hearing on her section 388 petition because she established a prima facie showing of changed circumstances and that the proposed change would promote the best interest of the children. Mother's arguments seemingly focus on the changed circumstances prong and the court's failure to allow her the opportunity to present evidence to rebut CFS's response to her section 388 petition. 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 petition and returning the children to her care 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 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 merely alleged that the children "deserve to be together and grow up with a family unit." In her briefs, she fails to address how granting her section 388 petition would advance the children's best interest. She simply asserts that she is "a good mother, whose children love her and enjoy her consistent visits" and that her situation is "complex" as she is a victim of domestic violence and "not a drug abuser, a child abuser, or a criminal." 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 return all five children to her care is conclusory. Mother's petition 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 placements. 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 returning the children to her care. "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 returning all five children to Mother's care without safety provisions and stable housing to see if Mother would and could do what she was required to do to maintain custody of the children 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.) By the February 5, 2019 hearing on Mother's section 388 petition, J.O., S.O., N.O., and K.O.-L. resided in the same concurrent planning home. N.O. and S.O. resided in the home for two years, and J.O. almost a year, while K.O.-L. had been placed in the home since birth in February 2018. Meanwhile, D.R. had been placed in his permanent planning home for almost four months. The foster parents were prepared to meet the children's needs, and the children were happy and very bonded to their foster parents. The foster parents were providing the children with stability and love. Mother admitted that she was impressed with the children's foster parents and their parenting skills. In addition, she liked how the foster mother interacted with the children, the boundaries she set, and the respect the children showed her. She also liked how the foster parents treated the children. Returning the children to Mother's care would only prolong the children's adoption and permanency into a stable and loving home.
On the other hand, Mother had received over 18 months of services and had failed to benefit from the services provided. Although she had shown she could complete services and be a loving mother to her children, she had also demonstrated instability by continuing to engage in the same behaviors that brought her to the attention of the juvenile court. As explained by the juvenile court, "despite an additional seven sessions of therapy regarding domestic violence," Mother did not have "a clear grasp of the cycle of violence, her responsibility in that violence, and what the triggers are or a clear safety plan."
In addition, Mother did not have stable housing, CFS was unable to assess Mother's live-in boyfriend, and Mother did not have a plan as to who would care for the children if they were returned to her care while she worked. Moreover, as noted by the juvenile court, the children were placed in a concurrent placement home which was prepared to provide permanency to the large sibling set and Mother herself admitted that she was impressed with the foster parents and their parenting techniques. The juvenile court reasonably concluded that, under such circumstances and in light of Mother's history with CFS, Mother had not made a prima facie showing that returning the children to her care 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 this showing. Mother in the instant action has also failed to do so.
We conclude Mother had not made a prima facie showing that the children's best interest would be served by returning the children to her care. The juvenile court therefore did not abuse its discretion in denying Mother's section 388 petition without an evidentiary hearing.
IV
DISPOSITION
The juvenile court's order denying Mother's section 388 petition without an evidentiary hearing is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: McKINSTER
Acting P. J. SLOUGH
J.