Filed 5/11/16 In re L.M. CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). Th is opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 388 1 petitions to expand her visitation with L.M

. S TATEMENT OF THE F ACTS AN D C ASE L.M. has been the subject of two separate dependency cases. The first occurred in February 2 012, when L.M. was one

- year old. Mother was referred to t he Santa Clara County De partment of Family and Children’ s Services (Department) after she brough t

1 All further statutory references are to the Wel fare and Institutions Code.2

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
ref errals 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 wa s ordered to participate in f amily 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 recommende d
that th e case be dismissed. Mother had comp leted 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, t he 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 pri or 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.3

On December 9, 2014, t he court granted the Department’ s section 388 petiti on, ordering that Mother’s visitation be supervised, and occur a minimum of t wo 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 wer e 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 fo r two hours each vis it, 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 in formation that Mother was participating in her court

- ordered treatment programs. On June 26, 2015, the cour t summarily denied the petition on the ground that the petition did not make a prima facie showing that the requested change in the visitation
sched ule would benefit L.M. Mother filed a notice of appeal of this denial in H042570. On July 15, 2015, Mother filed a s econd section 388 petition, requesting visitation
a minimum of three times per week for two hours each vis it, 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 pur sue her case plan services. With regard to benefit to L.M. as a result of the requested change, the petition state d that
increased visitation with Mother would be “better” for L.M. and would “promote[] the
likelihood of reunification ”4

On July 27, 2015, the court held a hearing on Mother’s section 388 petition, and considered whether Mother had made a prima facie show ing such that she was entitled to a full evidentiary hearing. The court found that Mother made a prima facie showing of changed cir cumstances, but had not shown that the requested change in visitation would
be in the best interests of L.M. The court not ed 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 H04 2693.
D ISCUSSION Mother argues on appeal that the juvenile court erred in summarily denying her section 388 petition

. 2 We review a juvenile court’s denial of a section 388 petition for abuse of discretion. We “may not disturb t he decision of the trial co urt unless that court has
exceeded the limits of judicial discretion by making an arbitrary, capricious, or patently
absur d determination. [Citation.]” ( In re E.S. (2011) 196 Cal.App.4th 1329, 13 35; In re
Daniel C . (2006) 141 Cal.App.4th 1438, 1445.)
Th e legal principles applicable when a section 388 petition is denied without an evidentiary hearing were recentl y 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 o f Court, rule 5.570( a).) The juvenile court shall order a hear ing 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 38 8 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.5

that the best interests of the child . . . may be p romoted’ . . . by the new order

. (§ 388, subd. (d).) Thus, the parent m ust sufficiently allege both a change in circumstances or
new evidence an d 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 alle gations demonstrate that these two elements are supported by probable cause. [ Citations.] It is not made, however, if the allegations

wou ld fail to sustain a favorable decision even if they were found to be t rue at a hearing. [Citations.] Whil e the petition must be liberally construe d in favor of its sufficiency [ citations], the allegations must nonetheless describe specifically how the petition will
advance the child’s best int erests. [Citations.]” ( In re G.B., supra , 227 Cal.App.4th at

p. 1 157.) The summary denial of a petition under section 388 is only appropriate if the

pe tition “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 sh ow that granting a section 388 petition is in the child’s best interests when the changing cir cumstances come after reunification services have been

t erminated or have been denied, at which time the child’s need for a permane nt, stab le 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 emo tional 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 was6

beneficial to L.M. The court did not abuse its discretio n in finding that altering its prior order and increasing the minimum visitation for Mother was not in L.M.’s best interests. Accordingl y, the court acted well within its discretion in denying Mother ’s
section 388 petition without holding an evidentiary hearing. The juvenile court properly
fo und that while Mother mad e 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 or der would promo te 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
the m of a permanent stable home in exch ange for an uncertain future].)
D ISPOSITION 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.7 ______________________________________

RUSHING , P.J.

WE CONCUR:

____________________________________

MÁRQUEZ, J.

____________________________________

GROVER, J.

In re L.M.; D.F.C.S. v. A.M. H042693 & H042570