Filed 4/18/18 In re R.C. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 R.C., et al., Persons Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

E.S.,

Defendant and Appellant.


E069143

(Super.Ct.Nos. J262241, J262242,
J262244, and J262245)

OPINION


APPEAL from the Superior Court of San Bernardino County. Christopher B. Marshall, Judge. Affirmed.
Melissa A. Chaitin, under appointment by the Court of Appeal, for Defendant and Appellant.
Michelle D. Blakemore, County Counsel, Adam E. Ebright, Deputy County Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
E.S. (Mother) is the mother of six children, who now range between the ages of four and 12 years old. The children were detained pursuant to Welfare and Institutions Code section 300, based on allegations of child abuse and torture, as well as the parents’ extensive substance abuse problems. Given the severe nature of the physical abuse, services were denied to Mother, and visitation was deemed detrimental to the children. The matter progressed to a section 366.26 hearing where a permanent plan was selected and implemented. Mother subsequently filed a section 388 petition seeking reinstatement of visitation. The juvenile court summarily denied the petition without a hearing. Mother challenges the juvenile court’s denial of her section 388 petition, arguing the court abused its discretion in denying her petition without an evidentiary hearing because, by the time of the petition, prima facie evidence showed her circumstances had changed and a change order was in the children’s best interest. We find no abuse of discretion and affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
R.C. and G.C., along with four of their half siblings, Ke.S., Ka.S., D.S., and S.S., came to the attention of the San Bernardino County Children and Family Services (CFS) on September 20, 2015, based on reports of severe physical abuse and neglect. The reporting party stated that S.S., who was 10 years old at the time, forced R.C. and G.C. to eat dog feces and attempted to drown Ke.S. in a bathtub by holding her underwater. S.S. was placed on a psychiatric hold pursuant to section 5150 and hospitalized for her own safety. At the time, Father was on a work-release program stemming from a domestic violence incident against Mother. He was convicted of corporal injury on a spouse, and was required to attend a 52-week batterer’s treatment program. The parents had a protracted history of abusing drugs and with child protective services.
When hospital staff interviewed S.S., she described a very abusive home environment, filled with acts of torture and cruelty. Mother had shaved S.S.’s head bald as punishment for S.S. not brushing her hair properly, which was causing other children at school to make fun of her. S.S. explained that when she got in trouble she was forced to eat unpalatable substances such as habanero hot peppers or raw fish. Once, S.S. vomited while trying to eat a hot pepper, and was forced to eat her own vomit as part of the punishment. Father and Mother also handcuffed the children’s hands behind their backs, forced them to stand against a wall, and beat them with a belt, sometimes with pants on, sometimes with pants off. While standing against the wall, the children had to keep their toes up in the air and balance on their heels for long periods of time.
Sometimes, the children were forced to stand against the wall in handcuffs and the parents shot them with a BB gun if they moved. Mother instructed the children to tell people at school that the injuries from the BB gun were bug bites. S.S. was also forced to eat “Old Spice” soap as a form of punishment, which would make her lips swell, and cause recurrent vomiting. She was forced to eat a whole bar, a half bar, and on one occasion, two whole bars of soap. Medical staff discovered several bruises on S.S.’s buttocks and a large red and gray bruise or hematoma on her thigh, indicative of abuse. The children witnessed the abuse perpetrated by the parents on their siblings. As a result of the parents’ acts of cruelty and torture, S.S. suffered serious emotional harm, had homicidal ideation and aggressive behaviors toward others.
The children were taken into protective custody on September 22, 2015. On September 24, 2015, CFS filed petitions on behalf of the children pursuant to section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling). The petitions were later amended to add allegations under section 300, subdivisions (a) (serious physical harm), (c) (serious emotional damage), (g) (no provision for support), and (i) (cruelty).
On September 25, 2015, the children were formally detained from the parents and placed in foster care. The parents were provided with weekly supervised visitation. CFS recommended that the allegations be found true and that the parents be denied reunification services. When the social worker interviewed Mother, Mother tried to shift blame to S.S., claiming that S.S. was lying about everything and speculating that “ ‘from all I know the bruises could be from them [kids] running around beating each other.’ ” Mother stated that she wanted to “ ‘beat’ ” S.S.’s ass, but claimed that she had not done so in over six months. Mother explained that S.S. was acting up because she is “ ‘pissed off her dad is in f---ing prison.’ ” Father claimed that when he initially heard that S.S. “ ‘fed the babies dog shit,’ ” he went for a walk to calm down, which is something he learned to do in his domestic violence class. When he got back home, he told S.S. that she needed to be punished and “ ‘whopped her ass six to seven times’ ” and told Mother to take her to the crisis center. Mother confirmed that she and Father made the children eat hot peppers and stated “ ‘they are real hot otherwise why give-em[?]’ ” and explained that “ ‘if they f---ing spit them out in our face they have to eat what they f---ing spit out,’ ” “ ‘what else is there to do[?]’ ”
Mother and Father admitted to engaging in domestic violence in the home, which had led to criminal proceedings against Father. Mother stated that the domestic violence was not anyone’s business and felt that people should just mind their own business. In 2013, R.C. had been born positive for methamphetamines, and Mother admitted that she and Father were still using methamphetamines. They had been using methamphetamines consistently for the past six years, but claimed that it was not causing any problems and that she felt they did not need any help. Father reported that he began using drugs at eight years old and progressed from marijuana to methamphetamines. Although Mother reported that she and Father used methamphetamines as recently as two weeks earlier, Father claimed that he had been clean and sober since 2013. The social worker asked Father to take a drug test on September 21, 2015, but he failed to complete the test. Mother’s drug test was negative.
S.S. had been diagnosed with a major depressive disorder and felt hopeless, but was making modest progress in her treatment. She reported that she felt better and her thought process had become progressively more future-oriented. By the time of her discharge from the hospital, S.S. had improved and she was looking forward to going to live in a new home. S.S. stated that when she gets out of her group home, she would like to go to a foster home with her siblings. She did not want to return to her parents’ house because she did not trust them. R.C. and G.C. were placed together in a foster home, and were adjusting adequately to the new home environment. Ke.S. had also been placed in a foster home, and the foster parents noticed that her body was covered in bruises from the parents’ cruel discipline practices. Ke.S. confirmed that she was forced to eat hot peppers as punishment and that she had been forced to stand against a wall, and if she moved too much, Father would shoot her with a BB gun. Ke.S. had two small red marks on her face where she had been hit with a BB.
The social worker concluded that due to the cruel ritualistic abuse inflicted upon the older half siblings, R.C. and G.C. were at substantial risk of similar harm. The social worker opined that the mental and emotional abuse endured by the children would outlast any bruises they had sustained. The children had all witnessed the physical abuse and cruel behavior in the home, and S.S. had begun taking her anger out on the younger children in the same manner.
Mother and Father still had not submitted to a drug test, and had missed their scheduled drug testing dates. Father, however, had signed up for an outpatient substance abuse program. R.C. and G.C. had received forensic medical exams and were noted to be underweight and thin. The San Bernardino County Sheriff’s Department interviewed S.S., D.S., and Ka.S. about the torture and punishment they endured in the home. The children generally gave consistent accounts of the torture, although D.S. and Ka.S. appeared guarded and tended to minimize the abuse, suggesting that they may have been coached not to talk about the abuse. S.S. stated that she liked the group home she was in because she does not “ ‘get beat,’ ” and that she does not want to return to Father’s care. S.S. described Mother cutting off her hair one day while she was “on the wall” and the times that she was forced to eat soap. The soap would cause her lips to swell and she would throw up every 10 minutes afterwards. Mother coached her to tell anyone who asked that her lips were swollen because her brother had punched her. D.S. talked about how his sisters got “ ‘butt whoopins’ ” and described how his ankles would hurt when he had to stand against the wall all day long. Ka.S. described the BB gun that Father used and stated that Ke.S. and S.S. “ ‘get shot the most cause they are like really bad.’ ” Ka.S. also identified the handcuffs and stated that Father puts them on Ke.S. when she is bad.
In December 2015, a criminal complaint was filed against Mother and Father, alleging several counts of willful cruelty to a child.
The contested jurisdictional/dispositional hearing was held on December 18, 2015. At that time, Father’s trial counsel requested the petitions be dismissed, arguing that Father believed he had a right to discipline his children and that the discipline used was warranted under the circumstances in this case. Father’s trial counsel also objected to the no reunification services recommendation, asserting that Father had enrolled in a substance abuse program and parenting classes and would benefit from services. Mother’s trial counsel joined in Father’s arguments as to inappropriate discipline and objected to the no reunification recommendation as well. CFS’s counsel stated it was “amazing” that Father would argue that he has a right to shoot a child with a BB gun, and noted that “no services can be put in place to change these people’s minds.” Minors’ counsel asked the court to find the allegations in the amended petition true, noting there was ample evidence in the record to show the children had been “subjected to horrific acts of cruelty on a regular basis contrary to how the parents feel about that.” Minors’ counsel also requested that no services and visitation be offered to the parents. Minors’ counsel argued that it was not in the children’s best interest to have contact with Father or Mother, noting, “it would be detrimental for that contact to occur based on the continued mindset and just the extent of the abuse that happened in this case to these children. [¶] And for the children that may have not been the direct targets of the abuse, the fact that they witnessed it. And it was going on daily in this home.”
Following argument, the court stated, “the fact that the parents would take the position that they had the ability and the right to discipline the children in the fashion that is indicated in the reports reflects to the Court that the parents do not understand the essential issue of the case, and that would go to disposition that providing services to the parents would not benefit the children because they don’t understand the real essential issue here that this is severe and inexcusable discipline that is used for the children.” The court thereafter found the allegations in the amended petition true and declared the children dependents of the court. The court denied reunification services for the parents and provided them with supervised visitation.
Approximately one month later on January 6, 2016, at a non-appearance review hearing, the court determined the parents’ visitation to be detrimental to the children, in light of the court’s jurisdictional findings and denial of reunification services, and suspended the parents’ visitation. The court’s minute order stated, in relevant part: “The court found that the children were severely abused and the court made a factual finding that it would not benefit the child to pursue reunification services with the offending parents. . . . Due to these acts of cruelty it is recommended that the parents visits be suspended.”
CFS recommended parental rights be terminated and requested a continuance to locate a concurrent plan home for the children. R.C. and G.C., along with two of their half siblings, D.S. and Ka.S., had been placed together in a foster home. R.C. and G.C., who were two and three years old at the time, were both within normal growth parameters for their age. The foster mother noted that R.C. was extremely dysregulated and hyperactive, and would throw numerous temper tantrums. The foster mother was working with R.C. to overcome these behaviors. G.C. was observed to be very quiet and withdrawn; however, she soon became more social, less withdrawn, and enjoyed playing with her younger brother, R.C. Both R.C. and G.C. were attached to their foster mother.
On August 8, 2016, the social worker informed the court that an adoptive home had not been located for the children and recommended that the case proceed under a planned permanent living arraignment. As noted ante, R.C., G.C., Ka.S., and D.S. had been placed together in a foster home.
On August 16, 2016, the court ordered the permanent plan of placement in the foster home with a specific goal of adoption. The court found that visitation with the parents continued to be detrimental to the children and ordered that visitation remain suspended.
The social worker recommended that R.C., G.C., Ka.S., and D.S. continue to receive services under a permanent plan living arrangement and that a section 366.26 hearing be set to establish a legal guardianship for all four children. The children remained together in their foster home and had adjusted well to the placement. The children were receiving counseling, and all four children had exhibited a decrease in negative behaviors. By this time, the children had been placed in their foster home for two years, and had formed a positive bond with their foster mother. The parents continued to have no contact or visitation with the children.
On August 8, 2017, Mother filed a section 388 petition, with supporting documents, requesting that visitation be reinstated for R.C., G.C., Ka.S., and D.S. Mother alleged that circumstances had changed since visitation was suspended because she had almost completed drug court, had maintained sobriety for over a year, and had completed various parenting and substance abuse programs. Mother also asserted that because she had been a caretaker prior to the dependency, she shared a bond with the children and felt that reinstating visitation would “allow them a connection with their family and will be beneficial.” On that same day, the court summarily denied Mother’s section 388 petition, finding that there was no change in circumstances and that it would not be in the children’s best interest to grant the section 388 petition. This appeal followed.
III
DISCUSSION
Mother argues the juvenile court abused its discretion in summarily denying her section 388 petition without a hearing because there was prima facie evidence circumstances were changed and granting the petition was in the children’s best interest. We disagree.
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 (Zachary G.) “[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 . . . .”].) The prima facie requirement is not met “unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition.” (Zachary G., at p. 806.) We review the court’s order denying a hearing for abuse of discretion. (Id. at p. 808.) “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 (Kimberly F.).)
Mother argues her circumstances had changed because she had completed a substance abuse program, a relapse prevention program, a domestic violence program, a parenting program, and was testing negative for controlled substances. 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 providing Mother with visitation was in the children’s best interest.
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.) 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.) “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.” (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).)
Mother failed to meet her burden of proving a prima facie showing that reinstating visitation was in the children’s best interest. (Kimberly F., supra, 56 Ca1.App.4th 519, 526.) “[B]est interests is a complex idea.” (Id. at pp. 530-531.) In determining whether the proposed modification is in the child’s best interest, the court considers a number of factors, including: “(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been. While this list is not meant to be exhaustive, it does provide a reasoned and principled basis on which to evaluate a section 388 motion.” (Id. at p. 532, italics omitted.) A review of these factors supports the juvenile court’s order denying Mother’s petition seeking reinstatement of visitation.
Mother’s long-term substance abuse and use of severe physical abuse problems that led to the dependency and the termination of visitation cannot be easily removed or ameliorated. “Like alcoholism [citation] chronic drug abuse presents a lifelong challenge and may put children of such drug abusers in danger.” (In re Ernesto R. (2014) 230 Cal.App.4th 219, 225; Kimberly F., supra, 56 Ca1.App.4th at p. 531, fn. 9 [“It is the nature of addiction that one must be ‘clean’ for a much longer period than 120 days to show real reform”].) Mother had used methamphetamines consistently for years, and she claimed that her drug use was not causing any problems. Furthermore, Mother did not appear to acknowledge that the physical abuse was a problem. The physical abuse of the children was horrific, ranging from forcing the children to eat their own vomit, toxic soap, and habanero peppers to beating and shooting a six-year-old child in the face repeatedly with a BB gun. Mother would instruct the children to lie to others as to how they had sustained the injuries. Despite the horrific nature of the physical abuse, Mother was unable to comprehend the physical abuse was severe, and referred to the torture as “inappropriate physical discipline.”
Moreover, Mother failed to provide evidence showing there was a bond between herself and the children. R.C. and G.C. were removed at age one and two respectively on September 20, 2015. And, Ka.S. and D.S. were seven and eight years old, respectively, when they were removed from parental custody on September 20, 2015. Since that time, they have had little to no contact with Mother. Throughout the dependency, Mother had not occupied the role of a parental figure to the children. Instead, Mother tried to shift blame to S.S., claiming that S.S. was lying about everything and speculating that “ ‘from all I know the bruises could be from them [kids] running around beating each other.’ ” Mother offers no evidence of a nurturing bond with the children or evidence that the children wanted to resume visitation. In contrast, the four children were adjusting to their foster home, and they were attached to their foster mother. The foster mother was working very hard to ensure that the four children’s needs were met and was working with the children to overcome the children’s behavioral issues. The children were receiving counseling, and all four children had exhibited a decrease in negative behaviors. They had been placed in the home for two years, and the children had formed a positive bond with their foster mother.
Furthermore, Mother did not provide any evidence to show the degree to which her problems might be ameliorated and the degree to which she actually removed her problems. As stated above, the physical abuse in the home was horrific, and at the time of the jurisdictional/dispositional hearing, Mother had not accepted that she had done anything wrong. CFS’s counsel found it “amazing” that Mother would argue that she has a right to shoot a child with a BB gun, and noted that “no services can be put in place to change these people’s minds.” The children had all witnessed extreme physical abuse and cruel behavior in the home, and S.S. had started copying Mother and Father’s behaviors and had begun hurting her younger siblings. The social worker found that the mental and emotional abuse endured by the children would outlast any bruises they had sustained. Under the circumstances of this case, the prospect of allowing Mother visitation would be detrimental to the children and thus would not have promoted the children’s best interest.
Here, as previously noted, the primary consideration in determining the children’s best interest is the goal of assuring stability and continuity. (Stephanie M., supra, 7 Ca1.4th at p. 317; Angel B., supra, 97 Ca1.App.4th at p. 464.) This is a difficult burden to meet when reunification services have not been provided or terminated. (Angel B., at p. 464.) At the time Mother filed her section 388 petition, the children’s interest in stability was the court’s foremost concern, outweighing any interest in reunification or reinstating visitation in a therapeutic setting. Under the circumstances of this case, the prospect of allowing Mother visitation would be detrimental to the children, and thus would not have promoted their best interest. (Angel B., at p. 464.) Mother had failed to provide evidence showing reinstating visitation with the children would not be detrimental in light of the physical abuse witnessed by the children. The juvenile court reasonably concluded that, under such circumstances, Mother had not made a prima facie showing that reinstating visitation would have promoted stability for the children and been in their best interest. (Ibid.)
Angel B., supra, 97 Ca1.App.4th 454 is instructive. In that case, 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 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 Ca1.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 did Mother here.
Mother’s section 388 petition stated only that she believed granting her section 388 petition was in the children’s best interest because “Mother was the primary caretaker for her children” and “they share a meaningful bond.” Mother also believed that “reinstating visits will allow [the children] a connection with their family and will be beneficial.” Mother’s allegations are conclusory, not a factual showing that reinstating visitation would promote the children’s best interest. (In re Ramone R. (2005) 132 Cal.App.4th 1339, 1348, 1349 [“allegations of her [section 388] petition were to be liberally construed, but conclusory claims are insufficient to require a hearing”].) Mother’s petition offered no evidence of the nature of her own bond or that the children wanted to visit with her (see Angel B., supra, 97 Ca1.App.4th at p. 465 [the mother’s petition, denied without a hearing, stated that she had bonded with the child, who was happy to see her and reached for her on their visits]). We conclude Mother made no prima facie showing that the children’s best interest would be served by reinstating visitation with the children.
Based on the foregoing, the juvenile court did not abuse its discretion in summarily denying Mother’s section 388 petition without a hearing.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON
J.
We concur:



MILLER
Acting P. J.



SLOUGH
J.