In re J.M. CA4/1

Filed 5/9/14 In re J.M. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re J.M., a Person Coming Under the
Juvenile Court Law.
D065121
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. NJ14788C)
Plaintiff and Respondent,

v.

M.P.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Michael Imhoff,

Commissioner. Affirmed.

Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant

and Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy and Patrice

Plattner-Grainger, Deputy County Counsel, for Plaintiff and Respondent.
 M.P. (mother) contends the juvenile court erred in (i) denying her an evidentiary

hearing on her Welfare and Institutions Code1 section 388 petition after the court sustained,

under section 300, subdivision (j), the petition of respondent San Diego County Health and

Human Services Agency (Agency) on behalf of J.M.; (ii) denying her and Benjamin M.

(Benjamin),2 J.M.'s father and mother's live-in boyfriend, reunification services; and

(iii) setting a hearing under section 366.26 to select and implement a permanent plan for

J.M. Affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

In early March 2013, the Agency filed a petition under section 300, subdivision (j)

on behalf of then one-year-old J.M. The petition alleged J.M.'s then three-year-old

stepsister, J., had 38 rib fractures, a distended abdomen, bruising on multiple parts of her

body, and she appeared to be malnourished. The petition also alleged the injuries to J.

"would ordinarily not be sustained except as the result of the unreasonable or neglectful acts

or omissions of the parent," and thus J.M. was "at substantial risk of the same or similar

injuries/detrimental condition as the result of the unreasonable or neglectful acts or

omissions of the parent . . . ." The Agency also filed section 300 petitions on behalf of J.

and then seven-year-old J.A., J.M.'s stepbrother.

1 All further statutory references are to the Welfare and Institutions Code unless
otherwise noted.

2 Benjamin is not a party in this proceeding.

2
 The Agency's March 8, 2013 detention report stated that a few days earlier, J. was

taken to Rady's Children Hospital (Rady's) emergency room; that J. had "bruising all over

her body including small healed lacerations"; that she had "at least" 38 rib fractures, most of

which were in the process of healing; that she had a "distended abdomen (possibly caused

by trauma); and a possible injury to her liver due to trauma." The March 8 report stated that

mother noticed that on March 1, J.'s abdomen was "swollen" and that J. had been vomiting

and having diarrhea for the past one to two weeks. According to the report, mother worked

full time and Benjamin was the primary caretaker of all three children.

The March 8 report included an interview of mother by an Agency social worker.

Mother denied Benjamin had a temper or used physical means to discipline the children.

Instead, mother claimed they used "time outs." Mother also denied any knowledge of the

black eye and bump on J.'s head and how J. received these injuries, although mother stated

about two or three weeks earlier J. fell and hit her mouth on the bathtub.

The March 8 report also included an interview with Benjamin. He could not provide

any additional details regarding what happened to J., although he said J. tended to "fall and

bump into things." Benjamin stated he noticed J. had not been eating the past few days. In

response to the social worker's question about why J. had marks on her body and inner

thigh, Benjamin stated J. scratched herself a lot because she has "itchy skin like eczema."

Benjamin also told the social worker he heard J. fall three or four times recently, making a

"thump, thump" sound but never saw what happened. He also denied any knowledge how J.

got the black eye or the bump on her head.

3
 The March 8 detention report noted J. had been admitted to the intensive care unit at

Rady's and that J.M. and J.A. had been detained in a confidential licensed foster home.

Attached to the detention report was a statement by Kathleen Dully, M.D., a child

abuse expert. Dr. Dully opined that there was "no logical, severe and forceful series of

injury events to explain all [J.'s] injuries. The superimposed weight loss reported by

[mother] over time, and gradual increasing abdominal distention with postponed medical

intervention for the lip as well as for the abdomen, appears to be neglectful, especially when

the original apparent extent and severity of the internal injuries is recognized. This appears

to be Battered Child with facial, chest, abdominal and nutritional [sic] injuries. There does

not appear to be any other logical explanation. This is severe child physical abuse."

The Agency's March 28, 2013 jurisdiction/disposition report noted that J. was still

hospitalized at Rady's and her discharge date was then unknown. That report also noted an

Agency social worker met with mother at Las Colinas Jail in mid-March 2013 and mother

stated she blamed herself for J.'s injuries because she did not stand up to Benjamin, but

instead sent J.M. into the room when the abuse of J. or J.A. was occurring in hopes

Benjamin would stop. Mother told the social worker that as a child she suffered over the

course of many years substantial physical and verbal abuse from her own mother and

physical and sexual abuse from her stepfather. Mother admitted she noticed bruising on J.

at the end of November or early December 2012, when J. began staying home with

Benjamin.

4
 Mother also admitted that she knew Benjamin had spanked J. with a belt because she

saw bruising on J.'s bottom and legs; that in December of 2012, she noticed J.'s feet were

swollen and said it was likely because Benjamin "probably had [J.] standing all day"; that

she also saw bruising on J.'s inner thigh, which mother determined likely occurred when

Benjamin grabbed J., held her leg up and "forced [J.] to stand on one leg for discipline"; that

mother also saw bruising and scars on J.'s back; that Benjamin made J. take "cold showers"

each time she had a toilet-training "accident"; that she was aware Benjamin also made J.M.

and J.A. stand in the shower, "sometimes all day, with wet or soiled clothes on"; that she

was aware that Benjamin made J. and J.A. at times "stand in the cold for hours"; and that

one time when she awakened at 2:00 a.m., she saw J. was still standing in the corner.

When asked by the Agency's social worker about what Benjamin was doing to J.

when he would take her into the bedroom and close the door, mother responded she could

hear "thuds" behind the closed door and one time when she entered the room she saw J. on

the floor crying. The social worker reported to mother that J.A. disclosed seeing Benjamin

hitting J. with a broom multiple times because she was not doing her time out correctly and

that this could have been one of the reasons J. sustained what the doctors believed was

"blunt force trauma" causing J. substantial internal injuries.

The jurisdiction/disposition report noted that Benjamin denied any knowledge of J.'s

injuries and instead claimed J. was a "very clumsy kid." That report further noted that Dr.

Dully found J.'s stomach condition was pancreatitis probably caused by trauma such as a

punch, kick or knee-type strike to the abdomen. J. also had a broken pelvis, which Dr.

5
Dully said was "very rare" and was an injury they might see on a child "once every ten

years."

Mother was arrested for willful harm or injury to a child under Penal Code section

273a. Benjamin was also arrested and charged with 21 counts for violation of this same

statute and was charged with torture under Penal Code section 206.

The jurisdiction/disposition report notes that shortly after J.A. was removed from the

home a medical examination revealed a linear bruise on his right leg consistent with a belt

mark and a round bruise on his right hip that could be accidental or nonaccidental. As for

J.M., the medical examination showed he had a torn frenulum and bruises over the fleshy

part of his face that were suspicious for inflicted trauma.

In speaking to police investigators, mother admitted that the day before she took J. to

the hospital, Benjamin took J.A. into J.A.'s bedroom, closed the door and she heard "five

whoops" that she said were consistent with J.A. being hit by a belt. Mother estimated that

Benjamin had hit J.A. with a belt several times, including perhaps more than 10 times.

After the beating, mother said she would rub J.A.'s injuries with ointment.

As also reflected in the jurisdiction/disposition report, mother also admitted to the

investigators that one time when she came home from work she saw Benjamin punish J. by

holding J.'s leg out to one side while J. stood on her other leg. Mother noticed then J. had

bruising on her inner calf.

Mother said she also was aware that Benjamin was giving the children cold showers

as a form of punishment. She noted the number of cold showers the children received

depended on how many accidents they had in a given day. She further noted the showers

6
were always cold and most often the children had their clothes on while in the shower.

Mother said if the children screamed when they received a cold shower, Benjamin would

spray them in the face with additional cold water until they stopped.

Mother recalled an incident involving J.A. when Benjamin made J.A. kneel down on

the tile floor in the kitchen, put towels around him and then poured cold water over his

head. Mother said this occurred at about 1 or 2 a.m. Mother also said Benjamin opened the

sliding glass door in the room to make it cooler and more uncomfortable for J.A., who was

shivering. According to mother, Benjamin kept J.A. up for 24 hours as punishment.

Mother admitted to police investigators that she was aware of all the injuries to J.

because she "was the one healing her wounds." Mother also said she "knew the abuse was

going on and was afraid to get her children treatment because she didn't want to be in the

situation she is in now." Mother tried to "fix it but didn't know how and was afraid and

embarrassed to ask for help and didn't know how to protect her children from this man."

In late March 2013, the Agency filed amended petitions on behalf of J.M., J.A. and J.

As relevant here, the petition on behalf of J.M. added three additional counts. Count 2

alleged that between November 2012 and early March 2013 (until J.M. was removed from

the home), that there was a substantial risk J.M. would suffer serious physical abuse by

Benjamin as provided in section 300, subdivision (e) based on the serious and substantial

injuries his half-sister J. sustained. Count 2 also alleged J.M. was at substantial risk of

being abused or neglected as provided in subdivision (j) of section 300.

7
 Count 3 alleged that mother knew, or reasonably should have known, that Benjamin

was physically abusing J.M.'s siblings, which placed J.M. at substantial risk of physical

abuse as provided under subdivision (e) of section 300. Count 3, like count 2, also included

an allegation under subdivision (j) of section 300.

Finally, count 4 alleged J.M.'s sibling, J., had been subjected to acts of cruelty by

Benjamin, including requiring her to stand in a cold shower for extended periods of time, up

to and including all day, while fully clothed. As such, count 4 alleged J.M. was also at

substantial risk that he too would be subject to such acts of cruelty by Benjamin, his father,

pursuant to subdivision (j) of section 300.

In early June 2013, the court sustained all four counts of the section 300 petition on

behalf of J.M., finding the allegations true by clear and convincing evidence. On

June 25, 2013, the court declared J.M. a dependent and removed him from parental custody;

it denied reunification services to mother and Benjamin, as recommended by the Agency,

and scheduled a hearing under section 366.26 to select and implement a permanent plan.

The court ordered no visitation for either parent, but set a special hearing for early

September 2013 to address visitation once mother was released from custody.

In its June 25, 2013 addendum report the Agency prepared in connection with the

contested disposition hearing, it noted J. displayed symptoms of posttraumatic stress related

to the abuse she endured while living with mother and Benjamin. During individual therapy

sessions, J. regularly played out themes having to do with safety, getting enough to eat and

spankings.

8
 In the Agency's September 5, 2013 addendum report prepared in connection with the

special visitation hearing for mother, the social worker noted she had met with J.M. and his

caregiver and had reviewed the Developmental Screening and Enhancement Program

(DSEP) report concerning J.M. The DSEP report expressed concerns regarding "J.M.'s

communication, fine motor and personal-social development" and his "emotional reactivity,

aggressive behavior and social emotional" behavior. These concerns were also expressed

by J.M.'s caregiver, who further reported J.M. was hard to discipline, was not using words

or pointing to things to express his wants or needs and was biting and scratching himself

and others.

In the September 5 addendum report the social worker recommended supervised

visitation between J.M. and mother, who had been released from custody in late August

2013, and was then residing at a residential treatment center. The record shows the court

ordered supervised visits between J.M. and mother.

The Agency's October 22, 2013 report prepared in connection with the selection and

implementation hearing under section 366.26 noted Benjamin had been sentenced to nine

years in state prison and noted mother had received four years formal probation, 365 days in

custody and ordered to complete a 52-week child abuse class and participate in any

psychiatric/counseling if directed by probation.

With regard to J.M., the October 22 report noted that he had a developmental

evaluation through Rady's and was found to have cognitive functioning at the "low end of

average, average fine motor skills, low average gross motor skills, concerns about speech

and language progression, and adjustment disorder, specified by emotional and behavioral

9
concerns directed toward self and others, secondary to past trauma and disruption in

attachment with primary caregivers and separation from sibling." It further noted J.M. was

undergoing DSEP services and was receiving weekly, in-home services from a behavior

specialist who found that J.M. was having a "hard time regulating" and that his tantrums

continue "the rest of the day."

J.M.'s caregiver reported he kicks the dog and other children, including his brother

J.A. who also lives with the caregiver, "does not like the bathtub, and will pinch his ear until

it bruises." The caregiver said J.M. will bite himself if the caregiver stops him from biting

others, and J.M. continues to go "very rigid and throw his head forward, or back, hurting

himself or others" when he has a tantrum. It was recommended, based on J.M.'s history and

behavior that he would benefit from treatment for posttraumatic stress disorder (PTSD).

The Agency social worker described in the October 22 report three visits between

J.M. and mother. The first visit took place at mother's residential treatment center in mid-

September 2013. The social worker noted J.M. cried when separated from his caregiver.

However, he let mother hug him and quieted when mother sang him a familiar song. J.M.

rarely made eye contact with mother. During some of the visit, he turned his back on her

and when she tried to engage him, he "would just be floppy." Following the visit, the

caregiver reported J.M. for a few hours was unusually quiet and withdrawn.

The second visit took place a week later, again at mother's treatment center. When

J.M. saw mother, he began to walk backwards and looked to be picked up by his caregiver.

J.M. then began to cry. Mother approached the caregiver, who encouraged J.M. to go to

10
mother. Mother took J.M., put his head against her shoulder and sang to him as she walked

away with him. J.M. was comforted.

During the visit, the social worker observed J.M. was sullen and clingy. Although

J.M. made eye contact with the social worker and those who approached him, he often did

not make eye contact with mother, although he did "snuggle his head into her shoulder."

J.M. remained mainly "limp" and "lethargic" for most of the visit and generally had no

interest in playing with any toys or mother. In fact, when mother tried to engage J.M. in

"physical play" by lifting him up above her as she lay on the ground, he "remained floppy as

a rag doll, and then came in close to her, to lay on her, when he could." The social worker

observed that J.M. smiled only once during the visit, when mother gave him a snack, that he

said no words during the entire visit, but that he did point and/or verbalize four times.

When the visit ended, J.M. ran to the caregiver with his arms outstretched. J.M. allowed

mother to hold him when they said goodbye.

The third visit took place in early October 2013, again at mother's treatment center.

J.M. cried when the caregiver handed him over to mother. J.M. quieted when mother sang

to, and snuggled, him. After eating a snack, J.M. pointed to a tetherball and verbalized, not

using words but instead with sounds. Mother took J.M. over to play.

According to the social worker, after mother finished singing a song to J.M., J.M.

"verbalized what sounded close enough to 'again' and [mother] responded by singing again."

They next went to a playroom, where J.M. let mother take his picture and then played with

blocks while sitting next to mother. J.M. smiled and for the first time moved off her lap. At

the end of the visit, J.M. "jumped into her arms with a smile," helped put the blocks away at

11
mother's encouragement and gave her "five." J.M. held out his hands to the caregiver, with

a big smile.

The October 22 report noted that mother was worried about J.M.'s assessments of

developmental delay and behavioral concerns; that she has been "anxious to comply with

any agency regulations, in order to visit with [J.M.]"; and that she has remained in "steady"

contact with the Agency and has attended various meetings to "discuss treatment options for

[J.M.], participating and providing information."

The Agency social worker involved in all three visits concluded that mother's role

with J.M. at that time was that of a "friendly visitor." J.M. seemed to remember his mother,

although the social worker observed that he "remains confused in her presence." J.M.

appeared to becoming more comfortable in her company. In addition, the social worker

noted that J.M. cries when separated from the caregiver and runs to the caregiver when the

visits end, but does not respond when separating from mother. The social worker concluded

"[J.M.] would not suffer detriment should [mother's] parental rights be terminated."

In the assessment/evaluation portion of the October 22 report, the Agency social

worker stated that although J.M. was in need of developmental and behavioral services, he

was adoptable. The report also noted J.M. had no contact with his mother for five months

while she was in custody; that to date her role (as noted) was that of a "friendly visitor"; that

in the three visits witnessed by the social worker, J.M. has shown "impaired attachment"

with mother and seems relieved when he is reunited with his caregiver; that J.M. lived in a

home where he was exposed to "very severe abuse" on his siblings by Benjamin, and thus it

12
was recommended he also receive treatment for PTSD; and that J.M. also might have been

physically abused while in the home.

The October 22 report recognized mother loved her children and was deeply regretful

for what had happened to them. It also noted mother had received a psychological

evaluation in May 2013 in which mother was advised to obtain individual therapy to

"resolve the conflicts relating to her years of abuse, both physical and sexual, rejection by

family, and maltreatment by others." The psychological evaluation noted that although

mother desired to pursue treatment, it was not certain that the "recommended therapy could

proceed quickly enough given the time demands of reunifying with children in the juvenile

dependency system."

The Agency's October 22 report pointed out that mother had not begun her 52-week

child abuse coursework and that her visitation with J.M. had not progressed beyond one

hour, supervised, per week. It concluded that J.M.'s need for a "permanent, stable home

where he can grow up safely and where he can belong, outweighs any detriment he would

suffer, should [mother's] parental rights be terminated." As such, the Agency recommended

the court terminate mother's parental rights and find adoption was in J.M.'s best interests.

The record shows the matter came before the court for a section 366.26 hearing in

late October 2013. The court continued the matter to November 21, 2013. Before the next

hearing, mother filed a section 388 petition, asking the court to change the order denying

her reunification services, to vacate the section 366.26 hearing and either to return J.M. to

her care or to order reunification services for her. Both the Agency and counsel for J.M.

opposed the petition.

13
 In support of mother's petition, mother noted that since her release from custody in

late August 2013, she had been enrolled in a residential treatment center; that her counselor

at the center stated mother had shown a "positive attitude toward treatment and [her] own

recovery"; that since undergoing treatment, she had participated in all "groups and meetings

available to her" and all drug tests have been negative; that she started basic parenting

classes the first week in October, 2013 and has remained an "active participant" in such

classes; and that she also attended individual therapy at the center, where she was diagnosed

with bipolar disorder for which she was receiving medication.

The Agency addendum report dated November 21, 2013 recognized mother had filed

a section 388 petition but nonetheless recommended adoption as the best permanent plan for

J.M. The November 21 report stated J.M. continued to struggle with certain behaviors

despite intervention, including "aggressive hitting, kicking, and biting of other children, and

if not allowed to do harm [to] others, he will then turn and harm himself, biting himself and

pinching his ear until it bruises."

The Agency in its November 21 report recognized mother's efforts to change her

behaviors, but noted her treatment had just begun and she had not yet demonstrated the

ability to "manage the stresses of day to day life without reverting to previous patterns." In

light of J.M.'s young age, his diagnosis of PTSD and his need for "day to day care and

therapeutic intervention," the Agency reiterated the "benefits of permanency outweigh the

detriment [J.M.] will suffer if parental rights are terminated." The Agency noted, however,

it would work to identify a home for J.M. "open to continued healthy contact with [mother],

and with J.M.'s maternal siblings."

14
 After considering the petition and its attachments and the Agency's November 21

addendum report, the juvenile court summarily denied without prejudice mother's section

388 petition, ruling she did not proffer sufficient evidence to overcome the "specific

findings" it made at disposition under section 361.5, subdivisions (b)(5) and (b)(6).3 The

court further ruled that under section 361.5, subdivision (c),4 once the court makes a finding

3 Subdivision (b) of section 361.5 provides: "Reunification services need not be
provided to a parent or guardian described in this subdivision when the court finds, by clear
and convincing evidence, any of the following: . . . (5) That the child was brought within the
jurisdiction of the court under subdivision (e) of Section 300 because of the conduct of that
parent or guardian. (6) That the child has been adjudicated a dependent pursuant to any
subdivision of Section 300 as a result of severe sexual abuse or the infliction of severe
physical harm to the child, a sibling, or a half sibling by a parent or guardian, as defined in
this subdivision, and the court makes a factual finding that it would not benefit the child to
pursue reunification services with the offending parent or guardian." (Italics added.)
Subdivision (b)(6) of section 361.5 states a "finding of the infliction of severe physical
harm, for the purposes of this subdivision, may be based on, but is not limited to, deliberate
and serious injury inflicted to or on a child's body or the body of a sibling or half sibling of
the child by an act or omission of the parent or guardian, or of another individual or animal
with the consent of the parent or guardian; deliberate and torturous confinement of the child,
sibling, or half sibling in a closed space; or any other torturous act or omission that would
be reasonably understood to cause serious emotional damage." Subdivision (e) of section
300, referenced in subdivision (b)(6) of section 361.5, provides in part a child is within the
jurisdiction of the juvenile court and is a dependent of the court if "(e) The child is under the
age of five years and has suffered severe physical abuse by a parent, or by any person
known by the parent, if the parent knew or reasonably should have known that the person
was physically abusing the child. For the purposes of this subdivision, 'severe physical
abuse' means any of the following: any single act of abuse which causes physical trauma of
sufficient severity that, if left untreated, would cause permanent physical disfigurement,
permanent physical disability, or death; any single act of sexual abuse which causes
significant bleeding, deep bruising, or significant external or internal swelling; or more than
one act of physical abuse, each of which causes bleeding, deep bruising, significant external
or internal swelling, bone fracture, or unconsciousness; or the willful, prolonged failure to
provide adequate food."

4 Subdivision (c) of section 361.5 states in part: "[T]he court shall not order
reunification in any situation described in paragraph (5) of subdivision (b) unless it finds
15
under subdivision (b)(5) of that same statute mother was required to present competent

evidence that reunification services are likely to prevent reabuse, which it noted mother had

not proffered.

As to the finding under subdivision (b)(6) of section 361.5 that the child was a

dependent based on the finding of severe physical harm to the child or to the child's sibling,

the juvenile court found that the "best interests for ordering services has to be assessed

within that context" and that for mother to make such a showing, it needed "information

with respect [to mother's] therapeutic progress, specifically on insight into how the children

have been injured, how they are reacting, and what type of parental strategy would be

provided to assist the children."

The court also found it would not be in J.M.'s best interests to grant the relief

requested "given the description of J.M.'s difficulties, his diagnosis of post traumatic stress

disorder, which in and of itself is a very tricky diagnosis . . . . And there needs to be a lot

of work and effort to put in to understanding what the triggers are in post traumatic stress

disorder diagnoses, and we need to have further input with respect to J.M.'s triggers. I don't

discount [mother's] interpretation of J.M.'s clinginess, but I would need much more expert

opinion to guide the court that it's primarily due to his issue of separation from his mother

rather than issues of protection and fear and things of that nature given his diagnosis."

that, based on competent testimony, those services are likely to prevent reabuse or
continued neglect of the child or that failure to try reunification will be detrimental to the
child because the child is closely and positively attached to that parent." (Italics added.)
16
 DISCUSSION

Mother contends the court erred when it summarily denied without prejudice her

section 388 petition. Any party may petition the juvenile court to modify or set aside a prior

dependency order pursuant to section 388. To trigger the right to a full evidentiary hearing,

the section 388 petition must include a prima facie showing of facts that if credited, will

sustain a favorable decision. (See also In re Marilyn H. (1993) 5 Cal.4th 295, 310; In re

Edward H. (1996) 43 Cal.App.4th 584, 592.) The petition is to be liberally construed,

which is to say it is "construed in favor of granting a hearing to consider the parent's

request." (In re Marilyn H., supra, at p. 309; In re Jeremy W. (1992) 3 Cal.App.4th 1407,

1413-1414.)

" 'There are two parts to the prima facie showing: The parent must demonstrate (1) a

genuine change of circumstances or new evidence, and that (2) revoking the previous order

would be in the best interests of the children.' " (In re C.J.W. (2007) 157 Cal.App.4th 1075,

1079.) "If 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." (In re Zachary G.

(1999) 77 Cal.App.4th 799, 806; C.J.W., supra, at p. 1079.)

We review the summary denial of a section 388 petition for an abuse of discretion.

(In re Marcos G. (2010) 182 Cal.App.4th 369, 382; see also In re Stephanie M. (1994) 7

Cal.4th 295, 317-318 [noting whether the juvenile court should modify a previously made

order rests within its discretion and " ' "a reviewing court will not disturb that decision

unless the trial court has exceeded the limits of legal discretion by making an arbitrary,

17
capricious or patently absurd determination . . . ." ' "].) If the liberally construed allegations

of the petition do not make the required prima facie showings of both changed

circumstances and best interests, the denial of the petition without a hearing does not violate

the petitioner's due process rights. (In re Angel B. (2002) 97 Cal.App.4th 454, 460-461.) In

ruling on a modification petition, the court may consider the entire factual and procedural

history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 189.)

Liberally construed, the petition showed that mother had been living in a residential

treatment center for only three months after she was released from custody in late August

2013 following her guilty plea to felony child abuse; that mother started basic parenting

classes at the treatment center the first week in October 2013, which was less than two

months before she filed her section 388 petition (which was heard in late November 2013);

and that mother was taking medication for depression and for a bipolar disorder and was

participating in therapy and parenting classes while living in the treatment center.

Although mother was making commendable efforts to address the multiple issues

that led to the severe physical abuse/harm of J. and J.A. by Benjamin as summarized ante

that was known to mother (she admitted treating the children's ongoing injuries and hearing

"thumps" when Benjamin would beat the children), we conclude on this record the juvenile

court's determination was not " ' "arbitrary, capricious or patently absurd" ' " (see Stephanie

M., supra, 7 Cal.4th at p. 318) when it summarily denied without prejudice mother's section

388 petition because she did not make a prima facie showing of a change of, as opposing to

changing, circumstances to warrant a full hearing. (See § 388, subd. (a); cf In re Aljamie D.

(2000) 84 Cal.App.4th 424, 427 [reversing juvenile court order denying a mother an

18
evidentiary hearing pursuant to her section 388 petition when the mother proffered evidence

showing that she had tested clean in weekly random drug tests for over two years, that she

had completed parenting classes and a drug rehabilitation plan, and that there was a close

bond between her and the children as evidence by the fact mother lived with the children

and their caretaker (i.e., the maternal aunt) and had "unmonitored" visitation with them].)

Moreover, as noted by the juvenile court, under subdivision (c) of section 361.5 a

court shall not order reunification if, as in the instant case, there has been a finding under

subdivision (b)(5) of that statute that the child was a dependent as provided in subdivision

(e) of section 300,5 "unless it finds that, based on competent testimony, those services are

likely to prevent reabuse or continued neglect of the child or that failure to try reunification

will be detrimental to the child because the child is closely and positively attached to that

parent."

Here, we separately conclude the juvenile court did not clearly abuse its discretion

when it found mother's section 388 petition did not meet the standard set forth in

subdivision (c) of section 361.5. Indeed, similar to the (tacit) finding mother's

circumstances were changing, here the record shows the services she was receiving from the

treatment center may prevent reabuse. However, it was not an abuse of discretion for the

juvenile court to find (tacitly) that those services were "likely" to prevent reabuse, as

5 As noted, subdivision (e) of section 300 generally provides a child is subject to the
jurisdiction of the juvenile court if "the child is under the age of five years and has suffered
severe physical abuse by a parent, or by any person known by the parent, if the parent knew
or reasonably should have known that the person was physically abusing the child." (Italics
added.)
19
required by subdivision (c) of section 361.5. This is so particularly given that mother had

only been a resident in the treatment center for three months and had just begun therapy and

parenting classes.

In addition, the record shows mother had only three visits with J.M. before the court

heard her section 388 petition. The record supports the finding of the Agency social worker

in the Agency's October 22 report, summarized ante, that mother's role with J.M. at that

time was that of a "friendly visitor." Indeed, the social worker noted that although J.M. was

becoming more comfortable around mother, he still appeared confused when with her. The

social worker also noted J.M. cried when separated from his caregiver and ran to his

caregiver when the visits with mother ended, but did not similarly respond when separating

from mother. Thus, although J.M. was becoming more comfortable with mother, the record

does not support the (tacit) finding he was "closely and positively attached" to her as

required by subdivision (c) of section 361.5.

Finally, even if we concluded the juvenile court clearly abused its discretion when it

found no change of circumstances in summarily denying mother's section 388 petition and

when it found mother did not proffer sufficient evidence to satisfy her burden under section

361.5, subdivision (c), we nonetheless would affirm the order because we also conclude

mother did not make a prima facie showing (required to obtain a full hearing) that revoking

the order denying her reunification services would be in J.M.'s best interest. (See § 388,

subds. (a) & (c); see also C.J.W., supra, 157 Cal.App.4th at p. 1079.)

20
 In In re Kimberly F. (1997) 56 Cal.App.4th 519, 532, the court identified three

principal factors relevant to the juvenile court's evaluation of best interests in the context of

a section 388 petition: (1) the seriousness of the problem that necessitated dependency and

the reason the problem continued; (2) the strength of relative bonds between the dependent

child and the parent and caretakers; and (3) the degree to which the problem may be easily

removed and the degree to which it actually has been.

Applying the Kimberly F. factors here, the record shows that J. and J.A. were

subjected to severe physical abuse and that J.M. also might have been subject to such abuse;

that although J.M. was only about a year old when the abuse began, he was aware of it

because mother admitted she would send J.M. into the room where Benjamin was abusing

J.M.'s siblings in an effort to get Benjamin to stop; and that mother knew Benjamin was

severely abusing the children because she was treating the children's injuries and because

she heard the abuse. It is clear from the record there was a "serious" problem in this case, as

perhaps best evidenced by the fact that J. had 38 fractures to her ribs when she was admitted

at Rady's, as well as serious other physical injuries, and the fact J.M. is suffering PTSD at

such a young age.

Moreover, as we have discussed the bond between mother and J.M. was similar to

that of a "friendly visitor," as noted by the Agency social worker who observed all three

visits between them leading up to the section 388 petition.

Finally, the third Kimberly F. factor also suggests it would not be in J.M.'s best

interest to order reunification services for mother (or to place J.M. with mother with

services). As noted ante, although the record shows mother was making commendable

21
strides in treatment, the record does not support a finding that mother had ameliorated the

problems that caused her to ignore the severe child abuse of J., which led Dr. Dully to

conclude J. was a battered child, and of J.A., and perhaps to a lesser extent, of J.M., by

Benjamin when she admitted knowing of the abuse and even hearing and witnessing it. We

thus conclude the juvenile court did not abuse its discretion when it summarily denied

without prejudice mother's section 388 petition because she did not make a prima facie

showing it would be in J.M.'s best interest to vacate the section 366.26 hearing and order

reunification services for her.

DISPOSITION

The order summarily denying without prejudice mother's section 388 petition is

affirmed.

BENKE, Acting P. J.

WE CONCUR:

HALLER, J.

McDONALD, J.

22