Filed 2/2/18 In re A.B. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 A.B., a Person Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

K.B. et al.,

Defendants and Appellants.


E068800

(Super.Ct.No. J263679)

OPINION


APPEAL from the Superior Court of San Bernardino County. Christopher B. Marshall, Judge. Affirmed.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant K.B.
Jacques Alexander Love, under appointment by the Court of Appeal, for Defendant and Appellant D.M.
Jean-Rene Basle, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
K.B. (Mother) and D.M. (Father) are the parents of four-year-old A.B. Due to the parents’ history with substance abuse and mental health issues, A.B. was removed from parental custody by the San Bernardino County Children and Family Services (CFS). Mother was provided with family maintenance and reunification services but failed to reunify with the child. Father was not provided with services as he was found to be a biological father, not entitled to service. Both parents subsequently filed petitions pursuant to Welfare and Institutions Code section 388 to modify the court’s prior orders. The juvenile court summarily denied Mother and Father’s respective petitions and set a section 366.26 hearing. Both Mother and Father challenge the juvenile court’s summary denial of their section 388 petitions, arguing the court abused its discretion in summarily denying their petitions. For the reasons explained below, we find the juvenile court did not abuse its discretion in summarily denying Mother and Father’s respective section 388 petitions, and affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
On January 7, 2016, CFS received a referral alleging Mother was regressing in her mental instability and abusing her psychotropic medication. Mother was diagnosed with borderline personality disorder and schizoaffective disorder with bipolar tendencies and substance abuse. Mother had been in and out of several behavioral programs. In addition, the maternal grandmother (MGM) had taken Mother to the hospital for having suicidal thoughts. MGM reported that she believed Mother was using methamphetamine and was on the verge of a breakdown.
Mother admitted she had relapsed and claimed she had made a mistake by abusing alcohol and prescription drugs. Mother had a history with CFS and had received family maintenance services from July 2014 to April 2015 as a result of her mental health and substance abuse issues. Mother admitted she had regressed and demonstrated the same behaviors and negligence that occurred in 2014 when CFS intervened. Mother reported Father was incarcerated, and he had last seen the child during the Christmas holidays in 2015. Father had an extensive criminal history and a history of abusing methamphetamine and alcohol. Mother also stated that she met Father at a treatment program center through the Department of Behavioral Health (DBH) and that Father was diagnosed with bipolar disorder. Mother became pregnant with the child while in the program, and moved in with MGM once she found out she was pregnant. Father was incarcerated throughout Mother’s pregnancy.
Due to Mother’s prior dependency history, mental health deterioration and admission to abusing alcohol and psychotropic medication, the child was taken into protective custody on January 12, 2016. On January 14, 2016, a petition was filed on behalf of the child pursuant to section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). The child was formally detained at the January 15, 2016 detention hearing and Mother was ordered to drug test. The parents were advised that no reunification services may be offered pursuant to section 361.5, subdivisions (b) or (e). The child was placed with MGM, and the parents were offered supervised visits once a week for two hours.
CFS recommended that the allegations in the petition be found true and that reunification services be provided to Mother and no reunification services to Father. Father had been released from jail and was living at a probation home. The social worker left messages for him to schedule visitation, but Father had not responded. Father was found to be only a biological father in the prior CFS case dated July 11, 2014 to April 13, 2015, and was not offered services. Father had not been involved in the child’s life and had no relationship with the child.
Mother’s drug test was positive for amphetamines. Mother had participated in several outpatient programs and had completed inpatient treatment two times prior to CFS’s current involvement. Mother did well in controlling her mental health with assistance and when she was held accountable. However, due to Mother’s regression, it was reported Mother had hallucinations, heard voices, and was paranoid. Mother informed the social worker that she wanted MGM to be a concurrent placement for the child, since the child had always lived with MGM and was attached to her. Mother had two supervised visits with the child. Mother was appropriate with the child. However, the child was resistant to visiting with Mother at first, repeating “ ‘home’ ” and “ ‘gramma’ ” throughout the visit.
At the February 5, 2016 jurisdictional/dispositional hearing, the juvenile court found the allegations in the petition true and declared the child a dependent of the court. Mother was provided with reunification services and ordered to participate. Father was found to be the biological father of the child, and denied services, as services were not in the best interest of the child.
By the six-month review hearing in August 2016, CFS recommended the child be returned to Mother’s care. Mother had been actively participating in her case plan, and had made significant progress. She had completed an inpatient substance abuse program, was enrolled in an outpatient program, and continued to test negative for drugs. She was also attending counseling and taking her medication. She had recently obtained employment and intended to move back into MGM’s home.
Mother’s visits with the child had increased in frequency, with MGM supervising the visits. MGM reported that Mother was doing a lot more during visits, such as feeding the child and getting her ready for bed, and that the child had started to have tantrums when Mother was not there because she was calling for her and missed her. Father also visited the child and the visits were described as appropriate. However, the visits usually ended early because the child left the visitation room to go to MGM.
At the August 5, 2016 six-month review hearing, the juvenile court returned the child to Mother’s custody with family maintenance services. The juvenile court continued weekly supervised visits with Father. Minor’s counsel noted the child was having trouble during visits with Father, and “[s]he’s screaming bloody murder.” The court requested the social worker to investigate the matter and report the findings to the court via packet.
On September 22, 2016, Father filed a section 388 petition, requesting reunification services be ordered and he be found to be the child’s presumed father. Father also requested that CFS be authorized to liberalize his visits to unsupervised. The juvenile court summarily denied his petition, noting the child had been returned to Mother’s custody.
On October 5, 2016, CFS filed a section 387 supplemental petition to remove the child from Mother’s custody due to Mother’s relapse and instability. Mother had been hospitalized twice for overdosing on Benadryl. MGM reported that she found an almost empty bottle of Benadryl and there were 80 pills missing. After granting authority to CFS to remove the child from her care and place her with MGM, Mother told the social worker, “ ‘well since I lost my daughter I’m going back on the streets to use.’ ” The social worker encouraged Mother to get sober.
At the October 6, 2016 detention hearing, the juvenile court detained the child and placed her in MGM’s care. Additionally, minor’s counsel noted that Father had threatened and harassed the SART service providers for the child, and the providers were no longer able to provide the services at MGM’s home. Father was ordered not to have any contact with the child’s service providers.
CFS recommended no family reunification services for either parent and setting a section 366.26 hearing. Mother repeatedly denied she was attempting to kill herself or that she took 80 Benadryl pills. She claimed she took the pills to try to sleep and believed MGM was exaggerating. However, Mother admitted that she was abusing her prescription drugs even while she was participating in an inpatient substance abuse program. CFS noted Mother had previously completed the services she was offered, and yet continued to be unstable and unpredictable. Mother had support from her mother and DBH, and had participated in and completed inpatient and outpatient substance abuse programs and counseling services. In addition, from April 2015 through July 2016, Mother had participated in family maintenance services for the same allegations of substance abuse and mental health issues, and the child was removed from Mother’s care nine months later when the subject juvenile dependency case was initiated.
CFS also reported that Father continued to struggle with anger management. Father had requested the child’s medical/mental health information and upon receiving that information, he had contacted the SART providers, harassed them about obtaining the child’s information, and threatened them by stating “ ‘don’t make me have to come down there.’ ” SART contacted law enforcement and was hesitant to continue to provide services for the child. Father was diagnosed with bipolar disorder and had a history of substance abuse. On October 19, 2016, he had a black eye and stated he got in a fight. Father reported that it was “normal for people to fight when they are upset.” CFS opined Father’s instability and anger problems placed the child at risk of detriment. Father was also ordered to drug test, but he claimed he had a “ ‘shy bladder’ ” and could not test.
Mother had not visited the child since October 6, 2016, but she requested visits on October 24, 2016. Meanwhile, the child continued to be placed with MGM. The child was acclimated to MGM’s home “as it is the only home she has known in her life.” The child was clearly bonded to MGM and looked to her when upset or happy, and to meet her everyday needs. MGM had provided for all of the child’s needs and had done so for most, if not all, of the child’s life. MGM was willing and ready to adopt the child, and Mother did not want the child with anyone other than MGM if the child was not returned to her care.
Father was not present for the December 8, 2016 contested jurisdictional/ dispositional hearing on the supplemental petition. The juvenile court found the allegations in the section 387 petition true, terminated reunification services for Mother, and set a section 366.26 hearing.
In April 2017, CFS recommended terminating parental rights and implementing a permanent plan of adoption for the child. The child had resided with MGM most of her life and looked to MGM as her parental figure. MGM’s home had been the only stable home the child had known. MGM desired to adopt the child and provide her with stability and permanency. The child reported that she wanted to live with MGM when asked where she would want to live if she could live with anyone.
Father had not visited the child since October 26, 2016, despite having authorized supervised visits. Mother continued to visit the child, but the child became very agitated and aggressive after visits with Mother. The child’s SART provider reported that she was working with the child and MGM to address the child’s behaviors.
On June 7, 2017, Mother filed a section 388 petition with supporting exhibits, requesting that reunification services be reinstated. Mother believed she had addressed her issues by completing an inpatient drug treatment program, being enrolled in an outpatient treatment program, attending 12-step meetings regularly, being compliant with her medication, and having a stable home and source of income. Mother also stated that the child was strongly bonded to her and that it would be in the child’s best interest to preserve their relationship and have the child in her care and custody. The juvenile court summarily denied Mother’s section 388 petition on June 7, 2017, finding the petition did not state new evidence or a change of circumstances and the proposed change of order did not promote the child’s best interest.
On June 26, 2017, Father filed a section 388 petition with supporting exhibits, requesting the court to consider placing the child in his care, or, alternatively, grant him presumed father status and reunification services. Father claimed he had engaged in services of his own volition by completing a substance abuse treatment program, attending Alcoholics Anonymous/Narcotics Anonymous (AA/NA) meetings, and participating in counseling sessions. He also contended that he had visited the child as much as his incarceration and homelessness allowed, and he was willing to fulfill his parental responsibilities to her. The juvenile court summarily denied Father’s section 388 petition on June 27, 2017, finding the petition did not state new evidence or a change of circumstances and the proposed change of order did not promote the child’s best interest.
At the July 21, 2017 section 366.26 hearing, after hearing arguments, the juvenile court found the child adoptable and no exceptions to adoption applied, and terminated parental rights. This appeal followed.
III
DISCUSSION
Mother argues the juvenile court abused its discretion when it summarily denied her section 388 petition, because she had made a prima facie showing her circumstances had changed and the modification she sought may have promoted the child’s best interest. Father contends the juvenile court abused its discretion by denying his section 388 petition without setting it for a full and fair hearing.
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 juvenile 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.)
Mother and Father contend the juvenile court should have held a hearing on their section 388 petitions because they established a prima facie showing of changed circumstances and that the proposed change would promote the best interest of the child. Mother alleged her changed circumstances consisted of successful completion of an inpatient drug treatment program, being enrolled in an outpatient treatment program, regularly attending 12-step meetings, being compliant with her medication, and having a stable home and source of income. Father alleged his changed circumstances consisted of participating in services on his own volition by completing a substance abuse treatment program, attending AA/NA meetings, and participating in counseling services.
We need not decide whether the juvenile court erred in finding there was no prima facie showing of changed circumstances because Mother and Father failed to make a prima facie showing that granting the section 388 petitions and providing reunification services was in the best interest of the child.
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 time of the 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 bypassing 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.” (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
At the time the parents filed their respective section 388 petitions, approximately six months after services were terminated or denied and shortly before the section 366.26 hearing, the child’s interest in stability was the juvenile court’s foremost concern, outweighing any interest in reunification. The prospect of granting the parents reunification services to see if Mother and Father would and could do what they were required to do to regain custody would not have promoted stability for the child, and thus would not have promoted the child’s best interest. (Angel B., supra, 97 Cal.App.4th at p. 464.) The child was two years old when she was removed from Mother’s care in January 2016. Prior to that, Mother had a family maintenance case with CFS from July 2014 to April 2015, based on the same issues that brought the child into the dependency court as in January 2016. Mother admitted she had regressed, and she received additional services. Six months after receiving reunification services in this case, the child was returned to Mother’s care in August 2016. However, three months later, the child was detained once again because Mother had another relapse. The child had resided with MGM, the prospective adoptive parent, for most of her young life, and a far greater amount of time than she had resided with Mother. The child looked to MGM as her parental figure and was bonded to MGM. When the child was initially detained, the child was resistant at visits and repeated “ ‘home’ ” and “ ‘gramma.’ ” Later, the child enjoyed her visits with Mother and would throw tantrums because she missed Mother. However, after being removed from Mother’s care a second time, the child became agitated and aggressive after her visits with Mother.
Regarding Father, the record demonstrates that the child never lived with Father and had no relationship with him. Father was incarcerated when the child was initially detained in January 2016. After his release, he visited the child. However, the visits usually ended early because the child would leave the visitation room to go to MGM. Minor’s counsel later reported that the child was having trouble during visits with Father and would scream “bloody murder.” Furthermore, in October 2016, Father was observed to have a black eye, and informed the social worker he got in a fight. CFS believed his instability and anger problems placed the child at risk of detriment. Moreover, Father did not visit the child towards the end of the juvenile dependency proceedings from October 2016 through April 2017.
Furthermore, the parents had a long history of abusing drugs and mental illness issues. Mother met Father while in a treatment facility through DBH and became pregnant with the child. It appears Mother did well with her substance abuse and mental health issues while in structured settings and with assistance. Yet she completed numerous inpatient and outpatient services in an effort to be stable and combat her ongoing issues, only to regress and relapse again and again. The record clearly shows the child required stability and permanency.
Granting reunification services to Mother and Father would only delay the child’s adoption in a stable and loving home. The social worker noted that the child and MGM were bonded to each other, and that MGM was meeting the child’s needs. The juvenile court reasonably concluded that, under such circumstances and in light of the parents’ history of mental illness and abusing drugs, Mother and Father had not made a prima facie showing that reinstating reunification services would have promoted stability for the child and be in her 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 by 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 interest of the child would be served by modification.” (Ibid.) The mother in Angel B. did not make such a showing. Nor do Mother and Father here.
Mother’s section 388 petition stated only that she believed granting her section 388 petition was in the child’s best interest, because she “feels” the child was “strongly bonded to her” and “it would be in her best interests to preserve their relationship and have [the child] in the care and custody of her biological mother.”
Father’s section 388 petition asserted that he believed granting his section 388 petition was in the child’s best interest, because he had visited the child as much as his incarceration and homelessness allowed, he believed the child knew him as her father, and he was “willing to fulfill [his] parental duties and responsibilities for her.”
Other than the statement Father visited the child, the parents’ allegations are conclusory, not a factual showing that granting reunification services would promote the child’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”].)
The parents’ petitions offered no evidence of the nature of their own bond or that the child wanted to live with either parent. (See Angel B., supra, 97 Cal.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 neither Mother nor Father made a prima facie showing that the child’s best interest would be served by offering either parent reunification services or placing the child with either parent.
Based on the foregoing, the juvenile court did not abuse its discretion in summarily denying the parents’ section 388 petitions without a hearing.
IV
DISPOSITION
The juvenile court’s orders summarily denying the parents’ section 388 petitions are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON
J.
We concur:



RAMIREZ
P. J.



SLOUGH
J.