Filed 1/3/14 In re S.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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 S.M. et al., Persons Coming Under the 

Juvenile Court Law.

 H039570

 (Santa Clara County

 Super. Ct. Nos. JD18636, JD18637)

SANTA CLARA COUNTY 

DEPARTMENT OF FAMILY AND 

CHILDREN’S SERVICES,

Plaintiff and Respondent,

v.

S.P.,

Defendant and Appellant.

S.P. (mother) appeals from an order denying her Welfare and Institutions Code 

section 388 petition and terminating her parental rights.1 Mother’s section 388 petition 

sought the return of two of her children--J.O. and S.M.--or, alternatively, reunification 

services. The petition also requested that the court order J.O. to attend visitation with 

mother. The juvenile court denied mother’s section 388 petition following an evidentiary 

hearing. Immediately thereafter, the court held a section 366.26 hearing to determine 

permanent plans of care for the children, after which it terminated mother’s parental 

rights.

On appeal, mother contends the juvenile court abused its discretion by denying her 

 

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Further unspecified statutory references are to the Welfare and Institutions Code.
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section 388 petition because she carried her burden of proof to show that changed 

circumstances warranted her requests to promote the best interest of the children. We 

disagree and shall affirm the order.

I. FACTUAL AND PROCEDURAL BACKGROUND

Mother has five children and a history of drug addiction and drug-related 

convictions. This case, the fourth dependency case involving mother and one or more of 

her children, involves her two youngest children, J.O. and S.M. 

A. Prior Dependency Cases

In 1995, mother’s oldest child, D.S., was declared a dependent child at the age of 

one because of mother’s substance abuse and neglect. Mother reunified with D.S. in 

1998, after completing a court-ordered drug treatment program in connection with a 

misdemeanor drug conviction, and the dependency case was dismissed. 

In 2000, mother was again convicted of a drug offense and was ordered into a drug 

treatment program. Her three oldest children were declared dependents of the juvenile 

court at that time due to mother’s substance abuse and neglect. Following two years of 

court-ordered substance abuse services, mother reunified with the children and the second 

dependency case was dismissed. 

Shortly after the reunification in 2002, mother left the three oldest children in the 

care of their maternal grandmother, who used drugs and physically abused the children.

In 2007, the maternal grandmother was arrested on multiple drug charges. In 2008, all 

five of mother’s children were adjudicated dependents of the court. After mother 

successfully completed inpatient and outpatient drug treatment, the children were 

returned to her and the third dependency case was dismissed. 

B. Mother’s 2012 Arrest and Initiation of the Current Dependency Case

Mother was arrested on April 11, 2012, for probation violations related to drug 

convictions. At that time, mother left eight-year-old J.O. in the care of a maternal aunt 

and five-year-old S.M. in the care of his paternal grandparents. 
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Mother was released a few weeks later and was ordered to drug test regularly and 

enroll in an outpatient drug treatment program. Mother subsequently missed one drug 

test and tested positive for methamphetamines at another; she was remanded into custody 

on May 21, 2012. Mother remained incarcerated until June 28, 2012, when she was 

released to a drug treatment facility. Less than a month later, on July 24, mother was 

expelled from the drug treatment facility for threatening other residents. She was 

remanded into custody on August 1, 2012. 

In the meantime, the maternal aunt and paternal grandparents filed for probate 

guardianship of J.O. and S.M., respectively. The probate court referred both cases to the 

Santa Clara County Department of Family and Children’s Services (Department) for 

investigation. In the summer of 2012, the Department filed juvenile dependency petitions

on behalf of J.O. and S.M.

The children were detained by the juvenile court, and placed into the care of the 

maternal aunt and paternal grandparents. The court ordered weekly visitation with 

mother, with the caveat that the children should not be forced to visit mother against their 

will. Throughout the summer, both children refused to visit mother when they were 

asked each week.

During an interview in July 2012, J.O. told the social worker that he did not want 

to live with mother because she used drugs. He stated that mother sold his clothes and 

shoes for drugs and forced him and S.M. to sleep in a closet. He also reported that there 

was no food in mother’s home so he and his siblings go hungry. His maternal aunt, with 

whom he is living, told the social worker that mother sold her food stamps to get money 

for drugs.

In August of 2012, S.M. told the social worker that he did not want to live with

mother because he had seen her use drugs and do “nasty things” with his “fake dad.” He 

also said that she does “crazy things” like running around, hitting stuff, and grabbing a 

knife. S.M. said there was no food in mother’s house. He also said he did not feel safe 
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with mother. As noted above, S.M. declined weekly visits with mother in August and 

September, but beginning in October 2012, S.M. agreed to visit with mother. The weekly

visits reportedly went well. 

C. Order Removing J.O. and S.M. from Mother’s Custody and Denying

Reunification Services

On October 26, 2012, the juvenile court took jurisdiction over J.O. and S.M. and 

ordered that reunification services not be provided. The court found that such services 

would not be in the children’s best interest in view of mother’s “history of extensive, 

abusive and chronic use of drugs” and her resistance to court-ordered drug treatment. 

The court ordered weekly supervised therapeutic visitation between mother and the 

children, but again ordered that the children not be forced to visit. A section 366.26

hearing to select a permanent plan for the children was set for February 13, 2013. That 

hearing eventually was continued until April 25, 2013.

D. Mother’s Section 388 Petition

Mother filed a section 388 petition on March 27, 2013, requesting modification of 

the court’s October 26, 2012 orders. Specifically, she requested return of J.O. and S.M. 

or six months of reunification services, increased visitation and therapy with both 

children, and that visitation be made mandatory for J.O. The court set the section 388 

petition to be heard on April 25, 2013, immediately before the contested section 366.26 

hearing. 

E. Section 388 Petition and Section 366.26 Hearings

At the evidentiary hearing on mother’s section 388 petition, mother testified that 

she had been sober for 11 months, attended Narcotics Anonymous meetings daily, had a 

sponsor, and was serious about her recovery. She admitted that she had completed drug 

treatment programs on multiple prior occasions and had been clean for as long as three 

years in the past, but stated that she did not have a sponsor or attend Narcotics 

Anonymous meetings that time. 
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One of mother’s long-time friends and fellow Narcotics Anonymous members 

testified as to mother’s sobriety and frequent attendance of Narcotics Anonymous 

meetings. Mother’s sponsor testified that she had sponsored mother for four months and 

that mother was on the first of the 12 steps.

Following the evidentiary hearing, the juvenile court denied the petition. The 

court found that there were changed circumstances but concluded that reunification 

services were not in the children’s best interests in light of their ages, that they were in 

loving homes, and their need for permanency and consistency. 

The juvenile court admitted into evidence section 366.26 reports regarding J.O. 

and S.M., which recommended termination of mother’s parental rights and adoption by 

the maternal aunt and paternal grandparents, respectively. The reports indicated that the 

children’s respective relative caregivers were committed to adopting them. J.O.’s section

366.26 report indicated that he consistently refused visits with mother, said he did not 

want to live with her, teared up when he was asked about visiting mother, and suffered 

from anxiety related to the possibility of visiting mother. The report also stated that J.O.

viewed his aunt and uncle as his parents and that he wanted to live with them 

permanently. S.M.’s report stated that he viewed his grandparents as parental figures.

Following argument by counsel, the juvenile court terminated mother’s parental 

rights and freed the children for adoption. Judgment was entered on April 25, 2013. 

Mother timely appealed from the denial of her section 388 petition and the order 

terminating her parental rights on April 26, 2013. 

II. DISCUSSION

On appeal, mother contends the juvenile court erred by denying her section 388 

petition request for reunification services, arguing she demonstrated that such services 

were in the children’s best interests. In support of that argument, she points to evidence 

that she had been sober for 11 months, is caring for her three older children, and that her 

visits with S.M. have gone well. Mother also maintains that the court erred by not 
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ordering J.O. to attend therapeutic visits with her as requested in her section 388 petition. 

A. Standard of Review

Section 388 permits any person having an interest in the child to petition for a 

hearing to change, modify, or set aside any court order previously made on grounds of 

change of circumstance or new evidence. (In re Lesly G. (2008) 162 Cal.App.4th 904, 

912.) Such a motion requires the petitioner to demonstrate by a preponderance of the 

evidence that new or changed circumstances warrant a change in the prior order to 

promote the best interest of the child. (In re S.J. (2008) 167 Cal.App.4th 953, 959.) The 

key factors to be considered in assessing a child’s best interests are: “(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.” (In re Kimberly F. (1997) 56 

Cal.App.4th 519, 532.) “We review the grant or denial of a petition for modification 

under section 388 for an abuse of discretion.” (In re B.D. (2008) 159 Cal.App.4th 1218, 

1228.) “ ‘ “The appropriate test for abuse of discretion is whether the trial court 

exceeded the bounds of reason. When two or more inferences can reasonably be deduced 

from the facts, the reviewing court has no authority to substitute its decision for that of 

the trial court.” ’ ” (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)

B. The Denial of Reunification Services Was Not an Abuse of Discretion 

The juvenile court concluded that mother established changed circumstances but 

that reunification nevertheless was not in the children’s best interests. In view of the 

relevant factors and the evidence before the court, that conclusion cannot be said to 

exceed the bounds of reason.

First, the juvenile court reasonably could have concluded from mother’s history of 

drug abuse (including relapses flowing prior treatment programs) that the problem 

leading to the dependency was serious. Second, the evidence showed that both children
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had bonded with their relative caregivers. J.O. consistently refused to see mother, 

indicating his bond with his caregivers is stronger than that with his mother. And while

mother’s visits with S.M. went well, supporting an inference of a bond between the two, 

S.M. was also bonded with his grandparents, and not removing him from their care 

provides permanence and stability. Third, the court reasonably could have concluded 

from mother’s history of relapse that her drug problem could not be easily removed or 

ameliorated, even with the support of her sponsor and Narcotics Anonymous. 

C. The Refusal to Order Visitation is Appealable But Was Not an Abuse of 

Discretion 

The Department contends that the juvenile court’s refusal to order visitation is not 

appealable because the order originally was made at the dispositional hearing at which a 

section 366.26 hearing was also set. Accordingly, the Department argues, section 366.26, 

subdivision (l) required mother to challenge the order by writ. (See, e.g., In re Merrick V.

(2004) 122 Cal.App.4th 235, 247 [“All court orders, regardless of their nature, made at a 

hearing in which a section 366.26 permanency planning hearing is set must be challenged 

by a petition for extraordinary writ.”].) We disagree. Mother is not challenging the 

initial order, but the court’s later refusal to modify that order as requested in her section

388 petition. Because the court’s denial of mother’s section 388 petition postdates its 

order setting the section 366.26 hearing, that denial is not governed by section 366.26, 

subdivision (l). (See In re Julia U. (1998) 64 Cal.App.4th 532, 539 [where, as here, the 

“trial court ordered a section 366.26 hearing . . . long before it gave permission to 

appellant . . . to file a section 388 petition,” mother was not required to challenge denial 

of section 388 petition by extraordinary writ].)

Nevertheless, we conclude that the juvenile court did not abuse its discretion by

denying the section 388 petition with respect to the visitation request. J.O.’s section

366.26 report indicated that he consistently refused visits with mother, said he did not 

want to live with her, teared up when he was asked about visiting mother, and suffered 
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from anxiety related to the possibility of visiting mother. The court reasonably could 

have concluded from that evidence that forced visitation would not be in J.O.’s best 

interest. 

Mother notes that, under section 361.5, subdivision (f), where the juvenile court

does not order reunification services it “may continue to permit the parent to visit the 

child unless it finds that visitation would be detrimental to the child.” But the word 

“may” is permissive (Woodbury v. Brown-Dempsey (2003) 108 Cal.App.4th 421, 433),

indicating that the court is not required to permit visitation even absent a finding that 

visitation would be detrimental to the child. Moreover, here the court did permit

visitation, it just refused to mandate it. Thus, section 361.5, subdivision (f), does not 

undermine our conclusion that the court did not abuse its discretion here.

III. DISPOSITION

The judgment is affirmed. 
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Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.