Filed 4/13/18 In re B.Z. CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

In re B.Z., a Person Coming Under the Juvenile Court Law.

STANISLAUS COUNTY COMMUNITY SERVICES AGENCY,

Plaintiff and Respondent,

v.

VICTORIA Z.,

Defendant and Appellant.

F076338

(Super. Ct. No. 517671)


OPINION

THE COURT*
APPEAL from an order of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge.
Gino de Solenni, under appointment by the Court of Appeal, for Defendant and Appellant.
John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
-ooOoo-

INTRODUCTION
Appellant Victoria Z. (mother) contends the juvenile court abused its discretion by not allowing an evidentiary hearing on her Welfare and Institutions Code section 388 petition. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
A section 300 petition was filed on behalf of B. on August 25, 2016, when he was approximately ten months old. Mother is the only party to this appeal, so we will focus on those facts and allegations pertaining to mother. The petition alleged there was a history of violence between mother and presumed father; mother had a history of methamphetamine use; there were indications mother had mental health issues that affected her ability to care for B; and mother previously had children removed from her care and failed to reunify.
It was alleged that B. has suffered, or was at risk of suffering, serious physical harm or illness because of the failure or inability of his parents to supervise and protect him; and inability to provide regular care due to mental illness and/or substance abuse. It also was alleged that B. was at substantial risk of suffering abuse or neglect because he had siblings who had been abused or neglected.
Mother had miscarried on August 19, 2016. As part of the grieving process, mother was placed in a room with the fetus. When the nurse returned to the room, mother was licking the fetus and had blood all over her mouth. Mother tested positive for amphetamines. Mother admitted regular methamphetamine use.
There was a record of 25 referrals to Child Protective Services (CPS), including referrals for physical abuse and general neglect. Mother had a criminal record, including inflicting injury on a child and child cruelty. Mother had other children removed and placed for adoption. Three of B.’s siblings had been removed from mother’s care and mother failed to reunify.
After the incident at the hospital on August 19, 2016, social workers from CPS visited the home on August 23. Mother asked who was responsible for waking her up, and when informed it was CPS, she became upset and remained upset. Mother stated she did not need the help of CPS. Mother acknowledged using methamphetamine, but refused to drug test.
On August 23, 2016, a protective custody warrant was issued for B. The social workers returned to the home that day with law enforcement to take B. into protective custody. They noticed mother had multiple new bruises that were not present that morning. Mother screamed at them, was uncooperative, and claimed her spine was broken and she was unable to stand.
At the August 26, 2016, detention hearing, B. was ordered detained. A jurisdictional and dispositional hearing was set.
The jurisdiction report detailed mother’s lengthy criminal history. The many crimes of which she was convicted included Penal Code section 288, subdivision (a), lewd and lascivious acts on a child under 14 years; multiple Penal Code section 242 convictions for battery; three convictions for violating Penal Code section 273d, willful infliction of cruel or inhuman corporal punishment on a child; Penal Code sections 148 for resisting arrest, 594 for vandalism, and 602 for trespassing; Penal Code section 602.5, unauthorized entry of noncommercial property; possession of controlled substances (Health & Saf. Code, § 11350) and possession of paraphernalia (Health & Saf. Code, § 11364); Penal Code section 417, subdivision (a), exhibiting a deadly weapon, not a firearm; and Penal Code section 273a, willful harm or injury to a child.
The jurisdiction report stated that mother had given birth to eight children, all of whom were no longer in her care. Mother’s eldest children, E. and G., were removed from her care due to physical abuse by mother. Mother failed to reunify with E. and G. and these children were adopted. Three of mother’s other children were placed under a legal guardianship with their maternal uncle. Mother’s sixth child, J., was removed from mother’s care when she tested positive for methamphetamine multiple times during her pregnancy. Mother also failed to reunify with J. and he was adopted. While pregnant with her seventh child, R., mother again tested positive for methamphetamine multiple times during her pregnancy. Mother failed to reunify with R. and he was adopted.
Given mother’s history with CPS, voluntary family maintenance services were extended to mother at B.’s birth in 2015. With the positive drug screen and mother’s behavior at the hospital in August 2016, CPS removed B. from mother’s care.
The jurisdiction report opined that mother had failed to remedy the issues that led to previous CPS involvement with her other seven children. Mother engaged in incidents of domestic violence in B.’s presence; continued to use methamphetamine; and failed to benefit from prior parenting classes. The report recommended that reunification services be denied mother pursuant to section 361.5, subdivision (b)(10).
In light of the recommendation of CPS to deny reunification services, mother requested a contested hearing. On December 1, 2016, CPS filed an amended petition, which included details about the prior dependency proceedings where mother had failed to reunify.
On January 12, 2017, CPS submitted case notes from December 20, 2016, through January 10, 2017. A mental health assessment had been recommended for mother, but mother was opposed to any assessment. Mother had been discharged from Redwoods treatment facility on January 7, 2017, after she grabbed a child by the arm and dragged him from the kitchen to the front reception area. The child was screaming and was left with a red mark on his arm where mother had grabbed him.
At the January 12, 2017 contested hearing, the juvenile court reviewed the case notes that had been submitted by CPS. In addition, CPS made an offer of proof that mother’s recent discharge from Redwoods was her second discharge from that program. Mother completed paperwork to be admitted to another program, but failed to attend the intake appointments. All counsel accepted the offer of proof.
Mother’s offer of proof was that she completed a parenting class on March 8, 2016. The parties accepted the offer of proof.
During argument, counsel for CPS noted that the parenting class was completed by mother five months before the filing of the section 300 petition on behalf of B. Counsel noted that mother had a lengthy history of CPS involvement, dating back several years; had lost custody of other children; and the problems that caused prior CPS involvement and loss of custody had not been ameliorated.
Counsel for mother argued that mother “is trying” and although “mistakes have been made,” mother wanted to reunify with B. Counsel argued that mother “would never harm a child.”
The juvenile court found the allegations of the first amended petition to be true. The juvenile court found that mother had a history of substance abuse with methamphetamine and that mother had several other children removed from her care and failed to reunify. Mother continued to use methamphetamine, was provided voluntary services for B., and all attempts to allow B. to remain in the care of mother were unsuccessful.
The juvenile court adjudged B. a dependent of the court and found there would be a substantial risk of detriment to B. if he were returned to his parents. The juvenile court found that mother had made limited progress and denied reunification services to mother pursuant to section 361.5, subdivision (b)(10). The juvenile court noted that mother resisted mental health treatment; had anger management issues; had previously physically abused her children; previously failed to reunify with several other children; and had failed to make reasonable efforts to address the problems that led to removal of the other children. The juvenile court found that providing reunification services to mother would not be in B.’s best interests.
Reunification services were ordered provided to presumed father, but the juvenile court warned they would be limited to six months. Mother would be allowed supervised visitation.
A six-month review report filed May 23, 2017, recommended termination of services to presumed father and the setting of a section 366.26 hearing. B. had been placed in the home where his half brother had been adopted. B. had bonded with his half brother and the social worker opined that B. appeared well cared for and there was “very much love in the home.”
On July 21, 2017, mother filed a section 388 petition. She claimed she was “maintaining a clean and sober lifestyle,” completed anger management and domestic violence programs, and had regularly and consistently visited B. Mother alleged that granting the section 388 petition was in B.’s best interest because it would give B. the “opportunity to reunify with a healthy and clean and sober mother.”
Attached to the section 388 petition were exhibits showing that mother had attended narcotics anonymous meetings between February 6, 2017, and May 24, 2017. Mother also attached information showing she had completed an anger management class and was enrolled in a domestic violence class.
The juvenile court scheduled the section 388 petition for a nonevidentiary hearing on July 28, 2017, at which time it would decide whether to grant an evidentiary hearing.
At the July 28, 2017, hearing, the matter of the section 388 petition was bifurcated from the six-month review. CPS opposed granting the section 388 petition.
Counsel for mother argued that the section 388 petition and attachments showed the “efforts” mother “has made in terms of changing her circumstances.” Counsel opined that it would be in B.’s “best interests to have [mother] receive a case plan so that she could possibly … reunify with him.”
Counsel for CPS argued that the section 388 petition did not show changed circumstances and did not demonstrate that reunification would be in B.’s best interests. Counsel reviewed mother’s history of CPS involvement with 25 referrals, including for physical abuse of children; mother’s prior failures to reunify with her children and the loss of parental rights to mother’s other children; and mother’s failure to parent B. adequately even after receiving voluntary maintenance services. Counsel also noted mother’s refusal to seek mental health services.
Counsel for CPS argued that mother failed to make “a prima facie showing” that circumstances had changed and granting reunification was in B.’s best interests. Counsel for B. opposed granting the section 388 petition.
The juvenile court noted that in order to grant an evidentiary hearing on the section 388 petition, there had to be a showing that granting the petition would be in B.’s best interests. The juvenile court then noted that B. had been in foster care for 11 months, almost half of his lifetime, and CPS was recommending termination of services to presumed father.
The juvenile court also noted that mother had “a very significant history” with CPS, which was “concerning.” Mother’s CPS history involved physical abuse of her children, mental health concerns, and substance abuse. The juvenile court opined that mother might have demonstrated “changing circumstances,” but not “changed circumstances,” and had made no showing that granting the section 388 petition was in B.’s best interests.
Mother filed her notice of appeal on September 25, 2017.
DISCUSSION
Mother claims the juvenile court abused its discretion when it denied her section 388 petition without an evidentiary hearing. We disagree.
A parent may petition the juvenile court to vacate or modify a previous order on grounds of changed circumstances or new evidence. (§ 388, subd. (a)(1).) The parent, however, must also show that the proposed change would promote the best interests of the child. (§ 388, subd. (d); In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).)
Section 388 allows a parent with an interest in a dependent child to petition the juvenile court to change, modify, or set aside any previous order. (§ 388, subd. (a).) “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 and shall give proper notice .…” (§ 388, subd. (d).) A court presented with a section 388 petition has two choices: (1) summarily deny the petition or (2) hold a hearing. (In re Lesly G. (2008) 162 Cal.App.4th 904, 912.) “In order to avoid summary denial, the petitioner must make a ‘prima facie’ showing of ‘facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited.’ [Citations.] ‘[I]f the petition fails to state a change of circumstances or new evidence that might require a change of order, the court may deny the application ex parte. [Citation.]’ [Citation.] On the other hand, ‘if the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing.’ ” (Ibid.)
We review the summary denial of a section 388 petition without an evidentiary hearing for abuse of discretion. (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1079; In re Angel B. (2002) 97 Cal.App.4th 454, 460; In re Anthony W. (2001) 87 Cal.App.4th 246, 250; In re Aljamie D. (2000) 84 Cal.App.4th 424, 431, 433.)
A court shall liberally construe a section 388 petition in favor of its sufficiency. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Nonetheless, section 388 contemplates that a petitioner must make a prima facie showing of both elements to trigger an evidentiary hearing on the petition. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) For instance, if a parent makes a prima facie showing of changed circumstances or new evidence sufficient to satisfy the first prong under section 388, a court may deny a section 388 petition without an evidentiary hearing if the parent does not make a prima facie showing that the relief sought would promote the child’s best interests. (In re Justice P. (2004) 123 Cal.App.4th 181, 189 (Justice P.).)
A prima facie showing refers to those facts that will sustain a favorable decision if the evidence submitted in support of the petitioner’s allegations is credited. 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.)
Mother’s petition failed to make a prima facie showing with respect to either changed circumstances or B.’s best interests. As to changed circumstances, mother had a 22-year history of child welfare involvement with virtually all of her other seven children being removed from her care because of substance abuse, mental health issues, and physical abuse. Mother had an 18-20 year history of using methamphetamine, but only began attending substance abuse classes about three months before filing the section 388 petition. She had one urine test that was negative. Three months of classes and one negative test is insufficient to assess mother’s long-term sobriety after decades of methamphetamine abuse.
Mother had a history of mental illness that affected her ability to care for her children. Mother opposed having a mental health assessment. There was no indication in mother’s section 388 petition that she was addressing, or even prepared to address, her mental health issues.
Mother had a long history of physical abuse of her children and violent behavior with her partners. Mother had completed one anger management program, but whether mother had benefited from the program was in question. Clearly, mother had received services on multiple occasions in the past with respect to her other children, and had received voluntary family maintenance services for B., yet failed to benefit from any of these services and any programs she attended as demonstrated by her continued behavior. Mother had repeatedly failed to learn how to parent a child adequately by the time of B.’s birth, her eighth child.
The juvenile court may consider the entire factual and procedural history of the case in determining whether the petition makes a prima facie showing. (Justice P., supra, 123 Cal.App.4th at p. 189.) Mother failed to make a prima facie showing of changed, as opposed to changing, circumstances. A petition only alleging changing circumstances, which would lead to a delay in the selection of a permanent home, to see if a parent could eventually reunify with a child at some future point, does not promote stability for the child or the child’s best interests. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)
Further, once the juvenile court terminates reunification services, the parent’s interest in the care, custody and companionship of the child are no longer paramount and the focus shifts to the need of the child for permanency and stability. 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 did not show it would be in B.’s best interest for the juvenile court to provide her with reunification services. That option would have delayed permanency and stability for B., who had not been in mother’s care for 11 months. B. was in a foster home with his half sibling, where he was loved and well cared for, and had bonded with his half sibling. Mother’s allegation that it was in B.’s best interest to reunify with her was conclusory, and a conclusory allegation is insufficient to establish this element. (In re Edward H., supra, 43 Cal.App.4th at p. 593.)
The juvenile court’s decision whether to change an order by granting a section 388 petition is “committed to the sound discretion of the juvenile court, and the trial court’s ruling should not be disturbed on appeal unless an abuse of discretion is clearly established.” (Stephanie M., supra, 7 Cal.4th at p. 318.) Consequently, the reviewing court will not disturb a trial court’s “ ‘ “decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination” ’ ” (ibid.) or, put another way, the trial court has exceeded the bounds of reason (id. at pp. 318-319). We find no abuse of discretion in this case.
DISPOSITION
The order denying mother’s section 388 petition is affirmed.