Filed 4/6/17 In re K.M. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



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

RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES,

Plaintiff and Respondent,

v.

S.M. et al.,

Defendants and Appellants.


E066505

(Super.Ct.No. RIJ1100622)

OPINION


APPEAL from the Superior Court of Riverside County. Jacqueline C. Jackson, Judge. Affirmed.
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant S.M.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant K.M.
Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Carole Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
S.M. (mother) and K.M. (father) appeal from orders denying their petitions for modification of existing orders in juvenile dependency proceedings concerning their son, Ke. We will affirm the orders.
PROCEDURAL AND FACTUAL HISTORY
This case has a very long history and has entailed multiple appeals. For purposes of this appeal, the following are the pertinent facts.
The Los Angeles County Department of Children and Family Services (DCFS) initiated this dependency in October 2009 after receiving a referral that then six-year-old Ki. and four-year-old Ke. were at risk for physical abuse by father. DCFS filed petitions pursuant to Welfare and Institutions Code section 300 with respect to both boys alleging that father abused the children by striking them and by grabbing Ki. around the neck, and threatening him by saying he would never see his family again if he told anyone about the abuse. As to mother, the petition alleged that she failed to protect her children from abuse by father. The trial court placed the children with mother. In September 2010, after father completed reunification services that included alcohol treatment, anger management, and parenting classes, the trial court allowed him to move back into the home with mother and the children.
In March 2011, DCFS received another referral of physical abuse after Ke. reported that father had spanked him with a stick and, as a result, the child was in so much pain he could not sit down. The reporter stated that Ke.’s buttocks were severely bruised and marked. Based on the referral, DCFS filed a section 387 petition, later superseded by an amended petition filed in April, alleging that both father and mother had physically abused the children by hitting them with belts, causing marks and bruises. The petition further alleged that father hit the children with a board, tied their hands and feet, and pinched them. This time the court removed the children from the parents’ custody, ordered reunification services and monitored visits.
Because mother and father were living in Riverside County, the case was transferred to that county in May 2011. The Riverside County Department of Public Social Services (DPSS) placed Ke. with a foster family in Moreno Valley. Although Ki. had initially been placed with a foster family in Los Angeles, in June 2011 DPSS placed him in the same foster home as Ke. DPSS referred Ke. to the county department of mental health after he was suspended from school for five days, apparently because he had pushed a student and then banged on the classroom window. When he was sent to the principal’s office, Ke. refused to go inside, and then flipped over a chair in the school office.
A psychologist diagnosed Ke. with ADHD combined with oppositional disorder and prescribed psychotropic drugs. By October 2011, DPSS recommended that the boys be returned to the care of mother and father with family maintenance services. At the pertinent review hearing, the trial court followed that recommendation.
On March 6, 2012, DPSS received an immediate response referral through the child abuse hotline after Ke. ran away from the family’s apartment to the leasing office of the apartment complex and reported that he was afraid to go home because he got “woopings” from mother and father, but mostly father. He had a number of small bruises on the inside of his left leg that he said were caused by mother hitting him with a belt. Ke. also had a large bruise on his buttocks and said that father had hit him with a wooden stick or paddle.
DPSS filed a supplemental petition on March 8, 2012, later superseded by an amended petition, with respect to both Ke. and Ki. Among other things, DPSS alleged that mother and father physically abused both children causing injury to each of them. The petition further alleged that Ke. refused to go home to his parents. According to the social worker’s detention hearing report, Ke. said his mother “whooped” him because he misbehaved at school. Mother admitted she “whooped” him with a belt. The social worker noted that the parents had both been advised many times not to use physical discipline on the children. The social worker also reported that the parents did not agree that Ke. had ADHD and did not believe in psychotropic medication. They apparently had taken Ke. off his medication and, as a result, Ke. engaged in very disruptive behavior at school.
Dr. Vivanco examined both children on March 8, 2012, at Riverside County Regional Medical Center. The doctor reported that Ki. and Ke. had suffered severe physical abuse. Both had scars on their necks the doctor believed had been caused by fingernails and which were consistent with strangulation. They both had other patterned scars on the neck, chest, back, arms, thighs, and legs. Those scars were consistent with having been inflicted by a belt. According to Dr. Vivanco, both Ki. and Ke. described severe and repetitively inflicted trauma.
At the detention hearing on March 9, 2012, the trial court ordered the children detained and removed them from the physical custody of both parents.
Dr. Klebel, a psychologist to whom the children had been referred, reported in a May 2012 progress report for Ke. that Ke. had drawn a picture of himself tied to a chair, and then lying face down on a bed, being beaten with a belt. Ke. drew many scars on his body. Dr. Klebel reported that both Ki. and Ke. had said that father told them “what happens in the family stays in the family.” Dr. Klebel was particularly bothered by the fact that Ke. apparently had been sexually abusing his older brother, Ki., for many years, including during the times the children lived with their parents. A Dr. Kozman evaluated Ke. and diagnosed PTSD, ADHD, conduct disorder, and depression. The doctor prescribed Clonidine and Vyvanse, which his caregiver reported resulted in a big improvement in Ke.’s behavior.
On July 18, 2012, the juvenile court found the allegations of the amended section 387 petition to be true as to both Ki. and Ke. The court found that although the parents had been provided services for nearly three years, they had made only minimal progress toward alleviating the cause of the dependency and had not benefitted from the services. The court also found that the parents had exceeded the statutory time limit for reunification services. The court denied further services and set a section 366.26 hearing to establish a permanent plan for the boys.
As noted above, Ki. was placed in a guardianship and the dependency was dismissed as to him. On March 12, 2013, the juvenile court established a legal guardianship for Ke., and ordered visits between Ke. and his parents to be “reasonable and as directed by the legal guardian.” The court then terminated dependency jurisdiction as to Ke. (In re K.M. (Oct. 21, 2015, E063023) [nonpub. opn.].)
On March 3, 2016, DPSS received a referral alleging that Ke.’s guardian had abused him emotionally and physically. It was alleged that the guardian had held him over the balcony of her home and threatened to kill him. It was also alleged that she had threatened to “put him out” if he agreed to visits with his parents. On March 4, 2016, DPSS received an immediate response referral alleging that Ke. had runaway that morning. Law enforcement located him and took him back to the guardian’s home. It was alleged that the guardian refused to take custody of Ke. and said that she wanted to rescind the guardianship. She said she was unable and unwilling to care for Ke. because of his extensive behavioral problems. Ke. was removed from the guardian’s home that day, and a petition pursuant to section 300, subdivision (g), was filed on his behalf. The guardian later stated that she was not interested in receiving services to reunify with Ke.
Ke. was placed in foster care, but the first foster mother gave a seven-day notice because of Ke.’s violent and oppositional behavior. A second foster placement also failed because of Ke.’s behavior. He was ultimately placed in a group home.
On May 10, 2016, the parents’ petition for modification of the visitation order was granted “as modified.” The court ordered visitation with Ke. a minimum of once a month in a therapy setting, once Ke.’s therapist indicated Ke. was ready. The court also granted DPSS’s request to dismiss the pending dependency petition based on section 300, subdivision (g), and reinstated the petition based on section 300, subdivision (b). The court terminated the guardianship and denied services to the parents. It found compelling reason not to set a permanency planning hearing in that Ke. was a not a proper subject for adoption, and there was no one willing to accept legal guardianship.
The section 388 petitions, which are the subjects of the current appeal, were filed on July 11 and August 8, 2016, respectively. Further facts concerning those petitions will be discussed below. The petitions were denied without hearing. The parents appealed separately.

LEGAL ANALYSIS
DENIAL OF THE SECTION 388 PETITIONS WITHOUT HEARING
WAS NOT AN ABUSE OF DISCRETION
Under section 388, a parent may petition to change or set aside a prior order “upon grounds of change of circumstance or new evidence.” (§ 388, subd. (a)(1).) The juvenile court shall order a hearing where “it appears that the best interests of the child . . . may be promoted” by the new order. (§ 388, subd. (d).) Thus, the parent must sufficiently allege both a change in circumstances or new evidence and the promotion of the child’s best interests. (In re G.B. (2014) 227 Cal.App.4th 1147, 1157.) A prima facie case requiring a hearing is made if the allegations demonstrate that these two elements are supported by probable cause. (Ibid.) It is not made if the allegations would fail to sustain a favorable decision even if they were found to be true at a hearing. (Ibid.) “While the petition must be liberally construed in favor of its sufficiency [citations], the allegations must nonetheless describe specifically how the petition will advance the child’s best interests.” (Ibid.) Mere conclusory statements as to either prong do not suffice: “If a petitioner could get by with general, conclusory allegations, there would be no need for an initial determination by the juvenile court about whether an evidentiary hearing was warranted. In such circumstances, 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.)
We review a juvenile court’s decision to deny a section 388 petition without a hearing for abuse of discretion. (In re G.B., supra, 227 Cal.App.4th at p. 1158.)
The July 11, 2016 Petition
Here, on July 11, 2016, the parents filed a petition for modification of the order for a minimum of one visit a month with Ke. in a therapeutic setting. They sought an order for a minimum of two visits a month in a therapeutic setting, to increase if things went well. The petition stated as changed circumstances that the parents and Ke. had had three visits, all of which went well, and that Ke. was asking for more visits. The petition stated that the proposed modification would benefit Ke. because he was asking for more visits. The court denied the petition without a hearing, finding that the petition failed to show how the proposed modification would benefit Ke. The court stated that there was a visitation order in place and indicated it would be reviewed at the next scheduled hearing.
Even if we assume that the petition made a prima facie showing, we cannot reverse the order unless the juvenile court exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) Here, the juvenile court did not act arbitrarily or capriciously, and it is not patently absurd to defer considering the subject matter of the

petition until the next scheduled hearing. The order for a minimum of one visit a month was entered on May 10, 2016, and the next hearing was scheduled for November 10, 2016. There is no indication in the petition that there was any urgency in obtaining an order increasing the minimum number of visits a month after only three visits. Furthermore, the existing order did not preclude additional visits: it provided for a minimum of one visit a month. If Ke.’s therapist had agreed that additional visits would benefit Ke., the therapist and the parents were free to make arrangements for additional visits.
Moreover, it was not an abuse of discretion to find that the petition failed to make a prima facie showing that the proposed modification was in Ke.’s best interests. As recently as April 2016, just three months before the section 388 petition was filed, Ke. told the social worker that he was terrified of his father because of the constant abuse he endured while living with his parents. He also stated that he knew that father had not changed, and he was certain that his father would beat him again if he were placed in his care. He had also said earlier that father had offered him “fun things” if he were to return home, but he really did not want to. And, as of April 2016, Ke.’s therapist had reported that more than one visit a month would not be beneficial because Ke. did not want to return to his parents’ care and reunification was not, in any event, the goal. Based on this information, the social worker reported that additional time was needed to determine whether the visits were productive and whether they were a positive or negative influence on Ke. Given this, the extensive history of abuse detailed throughout the history of this case, and the resulting severe mental health effects the abuse has had on Ke., it was not an abuse of discretion to conclude that three satisfactory visits was not sufficient to make a prima facie showing that more frequent visits would be in Ke.’s best interest.
The August 8, 2016 Petition
The August 8 petition stated that Ke. had been moved to a new group home and was sent to a new therapist. The parents stated that visitation supervised by the prior therapist was going very well, that they wanted to continue with her because she “took the therapeutic visits seriously,” and they felt they were making good progress in addressing the issues that led to the dependency. They asserted that in the single session they had had with the new therapist, all they did was play board games for two hours, and there was no therapeutic visit. The parents also expressed concern that Ke. had been moved many times and had seen many therapists. They argued that remaining with the prior therapist would be beneficial to Ke. The court denied the petition summarily, again stating that the proposed modification would not benefit Ke. and that “placements and progress will be reviewed at the next scheduled hearing.” Again, we see no abuse of discretion. A prima facie case requiring a hearing is not made if the allegations would fail to sustain a favorable decision even if they were found to be true at a hearing. (In re G.B., supra, 227 Cal.App.4th at p. 1157.) “While the petition must be liberally construed in favor of its sufficiency [citations], the allegations must nonetheless describe specifically how the petition will advance the child’s best interests.” (Ibid.) The parents could not possibly demonstrate, after a single visit with the new therapist, that her approach to therapy would not be beneficial to Ke. Although the parents complained that all they did was play board games, it is possible that this is a technique the therapist chose in order to assess how the parents interacted with Ke. Accordingly, it is not an abuse of discretion to conclude that more time and further visits with the new therapist were needed in order to determine whether the visits were beneficial to Ke.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
J.
We concur:



RAMIREZ
P. J.



MILLER
J.