Opinion
E067792
11-03-2017
In re R.C. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. R.C., Defendant and Appellant.
Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Adam E. Ebright, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J262241 & J262242) OPINION APPEAL from the Superior Court of San Bernardino County. Christopher B. Marshall, Judge. Affirmed. Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Adam E. Ebright, Deputy County Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant R.C. (Father) is the father of four-year-old G.C. and three-year-old R.C. The children were removed from parental custody due to the parents' extensive substance abuse problems and cruel physical abuse of the children. Due to the severe nature of the physical abuse, services were denied to Father, and visitation was deemed detrimental to the children. Father later filed a Welfare and Institutions Code section 388 petition seeking reinstatement of visitation. The juvenile court denied the petition without a hearing. Father challenges the juvenile court's denial of his section 388 petition, arguing the court abused its discretion in denying the petition without a hearing because prima facie evidence showed his circumstances had changed and it was in the children's best interest. We find no abuse of discretion, and affirm the judgment.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
E.S. (Mother) is not a party to this appeal.
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 history of abusing drugs and a history 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 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 and had homicidal ideation and aggressive behaviors towards 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.
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. 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.
S.S. and Ke.S. had been placed with a relative who was willing and able to adopt these two girls but was unable to take the other four siblings. On April 18, 2016, parental rights were terminated as to S.S. and Ke.S. --------
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.
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.
On February 7, 2017, Father filed a section 388 petition with supporting evidence. Father alleged his circumstances had changed because he had been released from custody and he had completed a substance abuse program, a domestic violence program, a parenting program, and a relapse prevention program. Father claimed that he was ready to be a loving caregiver and requested that the court reinstate visitation with R.C. and G.C. in a therapeutic setting.
On February 8, 2017, the court summarily denied the motion, finding that there was no change in circumstances and that it would not be in the children's best interest to grant the 388 petition. This appeal followed.
III
DISCUSSION
Father argues the juvenile court abused its discretion in summarily denying his section 388 petition without a hearing because there was prima facie evidence circumstances were changed and granting the petition was in R.C. and G.C.'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.)
Father argues his circumstances had changed because he had been released from custody and he had completed a substance abuse program, a domestic violence program, a parenting program, and a relapse prevention program. At the time of the jurisdictional/dispositional hearing, Father informed the court that he had enrolled in a substance abuse program and parenting classes. He had been required to attend a 52-week domestic violence program as part of his criminal conviction. However, Father failed to explain why this domestic violence program was any different from the one he had already completed before the dependency case. Father reported that he had employed a coping mechanism he had learned in his domestic violence class by taking a walk outside before returning home when he discovered S.S. had fed R.C. and G.C. dog feces. Nonetheless, when he returned home, Father beat S.S. with a belt. Father provided no evidence to counter the overwhelming evidence of physical abuse, or evidence to show that he had done anything to ameliorate the problem that led to the dependency. At the jurisdictional/dispositional hearing, Father's position was that he was justified in using cruel methods of disciplining the children. Rather than show remorse for his actions, he argued that he had a right to discipline the children and that the discipline used was warranted under the circumstances.
Additionally, Father did not demonstrate that he had dealt with his substance abuse problems. Although Father's participation in a 12-week outpatient substance abuse program is commendable, he did not provide the court with any drug tests or other evidence showing that he had stopped using methamphetamines or that he could maintain sobriety for any significant amount of time. Father had a lengthy substance abuse history lasting almost 23 years. At the time Father filed his section 388 petition, Father was almost 31 years old. Father reported that he began using drugs at eight years old and progressed from marijuana to methamphetamines. He denied drug use early on in the dependency but failed to submit to random drug testing. Mother admitted that she and Father were still using methamphetamines at the time of the jurisdictional/dispositional hearing. Mother reported that she and Father 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. Accordingly, Father's completion of an outpatient substance abuse program, while possibly evidence of changing circumstances, was simply not sufficient to establish a prima facie case that his circumstances had changed such that he was entitled to a hearing.
Moreover, Father failed to meet his burden of proving a prima facie showing that reinstating visitation was in R.C. and G.C.'s best interest. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526.) "Best 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 here.
Father'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; In re Kimberly F., supra, 56 Cal.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"].) Father denied a substance abuse problem and failed to test throughout the dependency. Furthermore, Father did not appear to acknowledge that the physical abuse was a problem. Father's physical abuse of the siblings 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. Despite having been required to attend a 52-week domestic violence class as part of his criminal conviction, Father continued to abuse the siblings and felt that the physical abuse was justified under the circumstances.
In addition, Father failed to provide evidence showing there was a bond between the children and Father. R.C. and G.C. were removed at age one and two respectively on September 20, 2015. Since that time, they have had little to no contact with Father. Throughout the dependency, Father had not occupied the role of a parental figure to the children. In contrast, R.C. and G.C. were finally adjusting to their foster home, and they were attached to their foster mother. The foster mother was working very hard to ensure that the children's needs were met. The foster mother was working with R.C. to overcome his behavioral issues and G.C. soon became more social and less withdrawn in her foster mother's care.
Moreover, Father did not provide any evidence to show the degree to which his problems might be ameliorated and the degree to which he actually removed his problems. As stated above, the physical abuse in the home was horrific, and at the time of the jurisdictional/dispositional hearing, Father had not accepted that he had done anything wrong. The children had all witnessed extreme physical abuse and cruel behavior in the home, and S.S. had started copying Father's behavior 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. Likewise, Father's completion of a short substance abuse program, without any clean drug tests accompanying the certificate, does not adequately show that he has overcome his lifelong substance abuse problem or that he will be able to maintain sobriety in the future.
Here, the primary consideration in determining the children's best interest is the goal of assuring stability and continuity. (In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Angel B. (2002) 97 Cal.App.4th 454, 464 (Angel B.).) This is a difficult burden to meet when reunification services have not been provided or terminated. This is because, "[a]fter the termination of reunification services, a parent's interest in the care, custody and companionship of the child is no longer paramount. [Citation.] Rather, at this point, the focus shifts to the needs of the child for permanency and stability. [Citation.]" (Angel B., supra, at p. 464.) There is a rebuttable presumption continued foster care is in the child's best interest. (Ibid.)
At the time Father filed his section 388 petition, Father had not shown he had changed and 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 Father visitation would be detrimental to the children, and thus would not have promoted their best interests. (Angel B., supra, 97 Cal.App.4th at p. 464.) Father had merely completed a 12-week substance abuse program, but failed to provide evidence of drug test results. In addition, Father had failed to provide evidence showing reinstating visitation with R.C. and G.C. would not be detrimental in light of the physical abuse witnessed by the children. The juvenile court reasonably concluded that, under such circumstances, Father had not made a prima facie showing of changed circumstances or that reinstating visitation would have promoted stability for the children and been in their best interest. (Angel B., at p. 464.)
Father argues that there was no evidence nor argument in the record as to the reason Father's visits were terminated in the first place. Father is mistaken. Minors' counsel argued at the contested jurisdictional/dispositional hearing that the court should not order visitation with the parents because it would be detrimental for that contact to occur based on the parents' denial and the extent of the abuse in this case. Counsel also pointed out that though R.C. and G.C. may have not been direct targets of the cruel abuse, they had witnessed the severe acts of cruelty in the home on a daily basis. The court here had ample evidence to suspend the parents' visitation as being detrimental to the children.
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 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 such a showing. Nor did Father here.
Father's section 388 petition stated only that he believed granting his section 388 petition was in the children's best interest because he had made the necessary changes to address the underlying issues that led to the children's removal and that the children had yet to find an adoptive home. Father also stated that he was committed to being "a safe, stable, and loving caregiver and parent for his children." Other than the statement the children had yet to find an adoptive home, his 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"].) Father's petition offered no evidence of the nature of his own bond or that the children wanted to live with parents (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 Father made no prima facie showing that the children's best interest would be served by reinstating visitation with R.C. and G.C. in a therapeutic setting.
Based on the foregoing, the juvenile court did not abuse its discretion in summarily denying Father'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.