Filed 5/11/16 In re L.M. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

SIXTH APPELLATE DISTRICT

In re L.M., a Person Coming Under the 

Juvenile Court Law.

 H042693 & H042570

 (Santa Clara County

 Super. Ct. No. 112-JD21049)

SANTA CLARA COUNTY 

DEPARTMENT OF FAMILY AND 

CHILDREN'S SERVICES,

Plaintiff and Respondent,

 v.

A.M.,

Defendant and Appellant.

A.M. is the mother of L.M., who is five years old. This case consists of two 

consolidated appeals. In each appeal, Mother asserts that the juvenile court erred in 

summarily denying her two Welfare and Institutions Code section 3881petitions to 

expand her visitation with L.M. 

STATEMENT OF THE FACTS AND CASE

L.M. has been the subject of two separate dependency cases. The first occurred in 

February 2012, when L.M. was one-year old. Mother was referred to the Santa Clara 

County Department of Family and Children’s Services (Department) after she brought 

 

1

 All further statutory references are to the Welfare and Institutions Code.
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L.M. to a drug dealer’s house to use drugs. The Department’s investigation revealed that 

Mother had a significant drug abuse history that involved cocaine, marijuana, 

methamphetamines and heroin. As of February 2012, there had already been 10 prior 

referrals to the Department regarding Mother. As a result of voluntary services offered 

by the Department, Mother had already participated in two inpatient drug treatment 

programs. 

On March 7, 2012, L.M. was adjudged a dependent of the court and Mother was 

ordered to participate in family maintenance services that included substance abuse and 

mental health treatment as well as a domestic violence women’s support group. 

At the section 364 review hearing on June 12, 2013, the Department recommended 

that the case be dismissed. Mother had completed her case plan services. The court 

dismissed the dependency action, and awarded full legal and physical custody of L.M. to 

Mother. 

The second dependency petition was filed on July 24, 2014, alleging that Mother

had relapsed and was again using methamphetamines. The petition also alleged that there 

was domestic violence between Mother and her new husband, and that L.M. had been 

exposed to it. 

On September 17, 2014, the court sustained the petition, and ordered family 

reunification services for both parents. Mother’s plan included counseling, drug testing 

and substance abuse treatment. Mother was to have unsupervised visitation with L.M. a 

minimum of one day a week. 

Mother relapsed and began using drugs prior to her October 7, 2014 visit with 

L.M. After a number of positive drug tests, the Department filed a section 388 petition to 

change Mother’s visitation to supervised. The Department’s report prepared in support 

of the section 388 petition stated that although L.M. enjoyed visits with her Mother, the 

visits left L.M. emotionally drained and exhausted. 
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On December 9, 2014, the court granted the Department’s section 388 petition, 

ordering that Mother’s visitation be supervised, and occur a minimum of two times a 

week. The court also gave the social worker discretion to increase the frequency of the 

visitation, and allow unsupervised and overnight visits. 

Following the court’s December 2014 order, Mother’s visitation with L.M. was 

inconsistent. L.M. had emotional difficulty when her Mother would miss scheduled 

visits. In response to Mother’s inconsistency and L.M.’s emotional stress, with the 

agreement the social worker changed the visitation to once a week for two hours. When 

visits with Mother were reduced, and L.M. was not subjected to missed visits and 

inconsistency, she was less anxious and emotionally stressed.

On June 16, 2015, Mother filed a section 388 petition seeking to increase her

visitation with L.M. to a minimum of two times a week for two hours each visit, 

supervised or unsupervised. The petition alleged that the change in visitation would 

benefit L.M. because she would then have visitation with Mother for the same amount of 

time as she had with Father. The petition also included information that Mother was 

participating in her court-ordered treatment programs.

On June 26, 2015, the court summarily denied the petition on the ground that the 

petition did not make a prima facie showing that the requested change in the visitation 

schedule would benefit L.M. Mother filed a notice of appeal of this denial in H042570. 

On July 15, 2015, Mother filed a second section 388 petition, requesting visitation 

a minimum of three times per week for two hours each visit, supervised or unsupervised. 

The petition stated that the change in circumstances was that Mother had now been clean 

and sober for four months and was continuing to pursue her case plan services. With 

regard to benefit to L.M. as a result of the requested change, the petition stated that 

increased visitation with Mother would be “better” for L.M. and would “promote[] the 

likelihood of reunification”
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On July 27, 2015, the court held a hearing on Mother’s section 388 petition, and 

considered whether Mother had made a prima facie showing such that she was entitled to 

a full evidentiary hearing. The court found that Mother made a prima facie showing of 

changed circumstances, but had not shown that the requested change in visitation would 

be in the best interests of L.M. The court noted that L.M.’s experience in the 

dependency system had been destabilizing and that visitation with Mother had been 

emotionally challenging for L.M. The court summarily denied the section 388 petition. 

Mother filed a notice of appeal of this denial in H042693.

DISCUSSION

Mother argues on appeal that the juvenile court erred in summarily denying her 

section 388 petition.

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We review a juvenile court’s denial of a section 388 petition for abuse of 

discretion. We “may not disturb the decision of the trial court unless that court has 

exceeded the limits of judicial discretion by making an arbitrary, capricious, or patently 

absurd determination. [Citation.]” (In re E.S. (2011) 196 Cal.App.4th 1329, 1335; In re 

Daniel C. (2006) 141 Cal.App.4th 1438, 1445.)

The legal principles applicable when a section 388 petition is denied without an 

evidentiary hearing were recently set out in In re G.B. (2014) 227 Cal.App.4th 1147. 

“Under section 388, a parent may petition to change or set aside a prior order ‘upon 

grounds of change of circumstance or new evidence.’ (§ 388, subd. (a)(1); see also Cal. 

Rules of Court, rule 5.570(a).) The juvenile court shall order a hearing where ‘it appears 

 

2

 The Department argued in its brief that the appeal should be dismissed. The 

Department asserted that because L.M. was currently residing with Mother full-time, any 

error by the court in summarily denying Mother’s section 388 petition for a change in 

visitation was moot. Subsequent to the filing of the respondent’s brief, however, the 

Department filed an erratum in this court asking to withdraw its mootness argument, 

stating that L.M. was no longer residing with Mother, and the issue of L.M.’s permanent 

placement is currently pending trial.
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that the best interests of the child . . . may be promoted’ . . . by the new order. (§ 388, 

subd. (d).) Thus, the parent must sufficiently allege both a change in circumstances or 

new evidence and the promotion of the child’s best interests. [Citation.]” (Id. at p. 1157, 

original italics, fn. omitted.)

“A prima facie case is made if the allegations demonstrate that these two elements 

are supported by probable cause. [Citations.] It is not made, however, if the allegations 

would fail to sustain a favorable decision even if they were found to be true at a hearing. 

[Citations.] While the petition must be liberally construed in favor of its sufficiency 

[citations], the allegations must nonetheless describe specifically how the petition will 

advance the child’s best interests. [Citations.]” (In re G.B., supra, 227 Cal.App.4th at 

p. 1157.) The summary denial of a petition under section 388 is only appropriate if the 

petition “fails to state a change of circumstance or new evidence that even might require a 

change of order . . . .” (In re Angel B. (2002) 97 Cal.App.4th 454, 461.)

It is more difficult to show that granting a section 388 petition is in the child’s best 

interests when the changing circumstances come after reunification services have been 

terminated or have been denied, at which time the child’s need for a permanent, stable 

home is paramount. (See In re Jasmon O. (1994) 8 Cal.4th 398, 420; In re Casey D. 

(1999) 70 Cal.App.4th 38, 48.)

The change of circumstance alleged in the section 388 petition was the fact that 

Mother was four months sober and continued to access her case plan services. In 

addition to reviewing Mother’s change in circumstances, the court also considered the 

entirety of the case, including the fact that L.M. was in her second dependency. In 

particular, the court looked at the ongoing struggles and emotional difficulty L.M. had 

with Mother’s inconsistency in visitation. Moreover, the court’s prior order gave the 

social worker discretion to increase Mother’s visitation in the instance that it was 
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beneficial to L.M. The court did not abuse its discretion in finding that altering its prior 

order and increasing the minimum visitation for Mother was not in L.M.’s best interests. 

Accordingly, the court acted well within its discretion in denying Mother’s 

section 388 petition without holding an evidentiary hearing. The juvenile court properly 

found that while Mother made a prima facie showing that her circumstances had changed 

due to sustained sobriety, she did not make a sufficient showing that modification of the 

court’s prior visitation order would promote L.M.’s best interests. (See In re C.J.W.

(2007) 157 Cal.App.4th 1075, 1081 [summary denial of § 388 petition was proper where 

there was no showing of how the children’s best interests would be served by depriving 

them of a permanent stable home in exchange for an uncertain future].)

DISPOSITION

The order that is the subject of the appeal in case number H042570 is affirmed.

The order that is the subject of the appeal in case number H042693 is affirmed.
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______________________________________

RUSHING, P.J.

WE CONCUR:

____________________________________

MÁRQUEZ, J.

____________________________________

GROVER, J.

In re L.M.; D.F.C.S. v. A.M.

H042693 & H042570