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Filed 3/27/23 In re J.J. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re J.J., a Person Coming Under the 

Juvenile Court Law.

SAN BERNARDINO COUNTY 

CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

N.R.,

Defendant and Appellant.

E079900

(Super.Ct.No. J289592)

OPINION

APPEAL from the Superior Court of San Bernardino County. Lynn M. Poncin, 

Judge. Affirmed.

Liana Serobian, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Tom Bunton, County Counsel, and Tiffany Lok, Deputy County Counsel, for 

Plaintiff and Respondent. 
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N.R. (Mother) filed a petition under Welfare and Institutions Code1section 388 

asking the juvenile court either to return her daughter, J.J., to her custody with family 

maintenance services or to order reunification services for her. The juvenile court 

summarily denied the petition and subsequently terminated parental rights at the 

section 366.26 hearing. Mother appeals from the order denying her section 388 petition 

and the order terminating her parental rights. We affirm.

FACTUAL AND PROCEDURAL HISTORY

A. PAST CHILD WELFARE HISTORY

In 2008, San Bernardino County Children and Family Services (Department) 

investigated a referral that Mother was exhibiting impulsive and angry behaviors in the 

hospital before and after giving birth to J.J.’s older half sibling. It was reported that 

Mother had a learning disability with poor coping skills, had been living an itinerant 

lifestyle moving from place to place, had few provisions for the baby, and no definite 

home to go to upon discharge from the hospital. Mother agreed to a plan of voluntary 

family maintenance services under Department supervision. Mother was resistant with 

infant health workers, failed to follow up on a referral to obtain services from the Inland 

Regional Center, and did not comply with medical staff’s instructions on how to care for 

the baby. Mother failed to follow feeding instructions, mixing twice the amount of infant 

formula, making the mixture too thick and creating a choking hazard. Mother continued 

to allow the baby to sleep on its stomach, putting him at risk of sudden infant death 

1

 All further statutory references are to the Welfare and Institutions Code.
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syndrome, after being advised not to. The child was removed from Mother’s custody in 

2008, reunification services were terminated, and Mother’s parental rights were 

terminated in 2009.

In 2004, while the Department was investigating allegations that Mother was 

unable to care for her first child and had covered the baby with a pillow during feeding, 

Mother made arrangements for that child to reside with relatives who were subsequently 

granted legal guardianship. In 2010, Mother’s third child was removed from her care at 

birth and placed with the same relatives because Mother was incarcerated. Both of those 

children were removed from the relatives’ custody, and Mother’s parental rights were 

terminated as to them in 2011.

B. DETENTION

The present case began in May 2021. When J.J. was three days old, the 

Department received a referral alleging general neglect. She was born prematurely and 

weighed only three pounds six ounces, requiring respiratory support in the neonatal 

intensive care unit. The reporting party informed the Department that Mother has

“childlike” behavior and communication issues. Mother herself reported that she has a 

learning disability. It was also reported that J.J. (Father)2 was very aggressive and 

controlling, yelling at Mother, using profanity, and preventing Mother from speaking for 

herself. The reporting party expressed concern that Mother would be unable to care for 

J.J. given her reported history with her previous children, her lack of a support system, 

2 Father is not a party to this appeal.
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and the fact that she would frequently be left alone with J.J. because Father went to Los 

Angeles to work for several days at a time. 

To investigate Mother’s ability to care for J.J. and to identify any possible support 

network, the Department interviewed Mother, Father, and two collateral contacts who 

wished to remain anonymous. Mother reported that she has a learning disability for 

which she receives monthly benefits, and that she had three children previously removed 

from her care, but Mother stated the children were removed because of a false allegation 

that she had tried to suffocate her first baby while in the hospital. Mother admitted to 

using marijuana during the pregnancy and self-reported that she was diagnosed with 

bipolar disorder and depression but is not currently taking any medication for her mental 

illness. 

Throughout the interview, Father did most of the talking and was observed telling 

Mother what to say, frequently cutting her off, raising his voice, and telling Mother to 

stop talking. This was a particular concern because Department records showed that 

Mother had a long history of staying with people who took advantage of her and her 

monthly disability income, and who subjected her to abuse. When asked about their 

plans to care for J.J., both parents stated that Mother would take care of the infant on her 

own. Mother stated that she does not need any help caring for the infant.

The two collateral contacts were interviewed separately, and both were familiar 

with Mother’s developmental delays. Both reported that she needed a lot of guidance and 

support, but neither would be available to provide such ongoing support. They stated that 
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Mother would not be able to care for J.J. on her own, that the parents were not stable 

enough to care for an infant at that time, and one also expressed concerns about Father’s 

behavior toward Mother.

The Department had immediate concerns for J.J.’s safety given Mother’s child 

welfare history, her lack of a support network, and both parents’ minimizing or denying 

Mother’s need for ongoing assistance in order to care for an infant, as well as Father’s 

efforts to control Mother and silence her when she tries to speak for herself. J.J. was 

detained pursuant to a detention warrant on June 18, 2021.

On June 22, 2021, the Department filed the initial section 300 petition alleging 

that J.J. came within subdivisions (b)(1) (failure to protect) and (j) (abuse or neglect of 

sibling). Both parents appeared by telephone at the detention hearing held the following 

day and were appointed counsel. The juvenile court found a prima facie case had been 

established, detained J.J. in temporary foster care, and ordered weekly supervised 

visitation.

C. JURISDICTION/DISPOSITION

On July 14, 2021, the Department filed a first amended petition alleging that 

Mother’s parental rights as to J.J.’s three older half siblings had been terminated in 2009 

and 2011, that Mother was unable to provide adequate care and supervision to her 

previous child who was removed from her care in 2008, that Mother is involved in a 

domestic violence relationship with Father, that Mother has an untreated mental health 
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diagnosis, and that Father knew or should have known that J.J. would be at risk if left in 

Mother’s care. 

Both parents were interviewed again for the jurisdiction/disposition report. Father 

denied any domestic violence but admitted telling Mother that she did not have to tell the 

Department anything. He admitted being “a little aggressive” with Mother but stated this 

was for Mother’s protection to prevent others from taking advantage of her. Father 

acknowledged that Mother needs help with some tasks, such as cooking, and said: 

“ ‘She’s slow, . . . I do a lot of things for her[,] but she can take care of her own 

children.’ ” He reiterated that Mother’s child welfare history was based on lies and false 

allegations, and that J.J. would be “ ‘in good hands’ ” if left in Mother’s care.

Mother also denied domestic violence. She acknowledged that she previously

took medication for her psychiatric diagnoses and stopped without seeking medical 

advice but denied needing medication or other mental health treatment. Mother reported 

she had never been on an involuntary psychiatric hold, although Department records 

showed she had been hospitalized under section 5150 on May 9, 2009, requiring the court 

to continue a May 11, 2009, hearing. Mother acknowledged her learning disability, but 

denied that she was unable to meet the needs of her children: “ ‘I can read[,] but I can’t 

understand what I’m reading. But I can take care of my child.’ ” She stated that she had 

been enrolled in an infant health program that provided assistance with a previous child, 

“ ‘[b]ut because I didn’t need the help, I left it. I can do everything on my own. My 

learning disability doesn’t affect me.’ ” The Department attached to its 
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jurisdiction/disposition report documentation of the previous dependency proceedings 

involving J.J.’s older half siblings.

On July 15, 2021, Mother’s counsel requested the appointment of a guardian ad 

litem for Mother. After conducting an inquiry, the juvenile court determined that Mother 

was not capable of assisting her attorney and appointed a guardian ad litem. The court 

also granted Father’s request for paternity testing and continued the jurisdiction and 

disposition hearing to allow for receipt of the paternity testing results and for the guardian 

ad litem to prepare.

The Department filed an addendum report on August 13, 2021, recommending: 

(1) that Father be found J.J.’s presumed father based on the paternity testing results, 

(2) that the allegations in the amended petition be found true, (3) that J.J. be removed 

from the custody of both parents, (4) that Father be provided with family reunification 

services, and (5) that Mother be bypassed for reunification services under section 361.5, 

subdivisions (b)(10) and (b)(11). The addendum report noted several concerns with 

Mother’s feeding of the child during supervised visits. During one visit, Mother had 

refused to feed the baby because she did not “ ‘want to run out of formula.’ ” The social 

worker had to explain to Mother the importance of maintaining the baby’s feeding 

schedule and told her that she could be provided with more formula. On another visit, 

Mother had overfed the baby, which caused her to vomit and stay awake crying that 

night. On another visit, Mother wanted to feed the baby water instead of formula. The 

Department noted that these were the same concerns regarding Mother’s inability to feed 
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the child properly, among other issues, that had been documented with J.J.’s older half

sibling.

The report also noted that Father was refusing to participate in pre-disposition 

services, that he informed the social worker on August 12, 2021, that he was no longer 

living with Mother but refused to answer the social worker’s questions and screamed 

throughout the phone call. On that date, Mother reported that she had moved into a new 

home a month earlier but refused to provide the address to the social worker.

On November 16, 2021, the court held the further jurisdiction and disposition 

hearing, found Father to be J.J.’s presumed father, found all the allegations in the first 

amended petition true, declared J.J. a dependent child of the court, ordered her removed 

from the physical custody of both parents, and ordered reunification services for Father. 

Mother’s counsel argued that Mother had made a reasonable effort to address the 

problems that led to the removal of J.J.’s half siblings and the termination of Mother’s 

parental rights. The court found that the evidence showed Mother continuing to exhibit 

the same problems in being unable to meet the child’s basic needs that she had with J.J.’s 

half siblings, that Mother was still denying her parental rights had been terminated, and 

was refusing to cooperate with the Department, for instance refusing to provide her 

address to the social worker. The court denied reunification services for Mother under 

section 361.5, subdivisions (b)(10) and (b)(11), maintained weekly supervised visitation, 

and set a status review hearing for May 16, 2022.
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D. SIX-MONTH STATUS REVIEW

The Department’s status review report filed May 12, 2022, noted that J.J. was 

doing well in her current placement where she had been since July 2021, the current 

caregiver was meeting her needs and had expressed interest in adoption in the event 

Father failed to reunify. Father had completed his domestic violence program, his 

attendance in individual counseling was “ ‘somewhat erratic,’ ” he failed to participate 

and complete family education, and reported that he was homeless and unemployed. The 

report again noted problems during the parents’ visits with J.J. Mother had to be 

redirected to put away her phone as she “ ‘was always calling friends and family to 

FaceTime’ ” during visits. Mother tried to feed the baby Vienna sausage during one visit 

and had to be stopped because it posed a choking hazard to the baby. It was observed 

that Father has to remind Mother during visits of things she had previously been warned 

against, which leads to them bickering with each other, so separate visits for each parent 

had to be arranged. Father continued to exhibit angry and impulsive behavior, using 

expletives and hanging up on a social worker. The Department recommended that 

Father’s reunification services be terminated, and a section 366.26 hearing be set to 

establish a permanent plan of adoption for J.J.

The six-month status review hearing was continued to June 7, 2022, because 

Mother’s guardian ad litem was unavailable. At the June 7 hearing, the court terminated 

Father’s reunification services and set a section 366.26 hearing for October 5, 2022. 
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E. MOTHER’S SECTION 388 PETITION

Mother filed a section 388 petition on September 14, 2022, requesting that the 

court return J.J. to Mother’s custody under a family maintenance plan, order an extended 

visit, or, in the alternative, that family reunification services be granted to Mother. The 

petition stated that Mother had completed parenting and domestic violence programs and 

was seeing a psychiatrist. The petition stated that the requested order would be in the 

child’s best interest because Mother had “completed services, acknowledged her issues, 

and visits consistently.” Attached to the petition were certificates of completion for a 

program for domestic violence victims and a nurturing parenting program as well as a 

business card and appointment card showing that Mother had a September 20 

appointment scheduled with a psychiatric nurse practitioner.

On September 15, 2022, the court denied Mother’s petition because it failed to

state a change of circumstances and does not promote the best interest of the child. The 

court’s order explained: “At best, mother demonstrates changing circumstances, mother 

has not provided any progress reports to show she benefitted from services. Mother does 

not address what services she has participated in to overcome her learning disability that 

hinders her ability to care for the child. Additionally, it was reported in the 5-16-2022 

status review report that parents were always bickering with each other so visits were 

separated.” On September 29, 2022, Mother filed a notice of appeal from the court’s 

denial of her section 388 petition.
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F. SECTION 366.26 HEARING

On September 20, 2022, the Department filed a section 366.26 report 

recommending that parental rights be terminated, and a permanent plan of adoption be 

implemented. The report noted that J.J. shared a mutual bond and attachment with her 

caregiver and prospective adoptive parent with whom she had been placed since July 13, 

2021, when she was six weeks old. J.J. was having all of her needs met, had gained 

weight, was healthy, and had been found eligible for early start regional center services 

due to a 25 percent delay in the area of fine motor skills. The caregiver appeared to be 

dedicated to J.J. and committed to raising her to adulthood.

On October 5, 2022, the juvenile court held the section 366.26 hearing. Mother’s 

counsel objected to the Department’s recommendation to terminate Mother’s parental 

rights, offered no affirmative evidence, and declined the court’s offer to set the matter for 

contest so Mother could testify. Mother’s counsel read the following statement from 

Mother to the court: “ ‘I know I made a mistake, but I learned from my mistake. I’m 

trying to be a better mom and a better person. I’m not saying that I’m perfect, I’m not 

saying that I’m better than anyone, but I’d like a second chance in being a mom. I just 

want to be in my baby’s life. I did everything without the courts telling me to do it. I 

learned a lot from my classes.’ ” The juvenile court set adoption as the permanent plan, 

found by clear and convincing evidence that J.J. was generally and specifically adoptable, 

found the beneficial parental relationship exception did not apply, terminated parental 

rights, and set a post-permanency review hearing for April 5, 2023. On that same date, 
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Mother filed a notice of appeal from the juvenile court’s order terminating her parental 

rights.

DISCUSSION

A. APPELLATE JURISDICTION

Relying on this court’s decision in In re J.F. (2019) 39 Cal.App.5th 70 (J.F.), the 

Department argues that we lack jurisdiction to consider Mother’s appeal from the 

September 15, 2022, order denying her section 388 petition because Mother’s notice of 

appeal filed on October 5, 2022, designated only that day’s order terminating her parental 

rights as the order being appealed. The Department, however, overlooks that Mother also 

filed a separate notice of appeal on September 29, 2022, from the juvenile court’s denial 

of her section 388 petition. We accordingly have appellate jurisdiction to review both 

orders. (Cal. Rules of Court, rules 8.100(a)(2), 8.405(a)(3).) 

B. SECTION 388 PETITION

Mother contends that the juvenile court abused its discretion by denying her 

section 388 petition without an evidentiary hearing because she had demonstrated her 

circumstances had changed and that it was in the children’s best interest to be provided 

with services. She claims that she had made the requisite prima facie showing, and the 

court violated her due process rights by not affording her a hearing. She also claims the 

court erred by basing its denial in part on Mother’s learning disability. We disagree.
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“Under section 388, a parent may petition to change or set aside a prior order 

‘upon grounds of change of circumstance or new evidence.’ [Citations.] The juvenile 

court shall order a hearing where ‘it appears that the best interests of the child . . . may be 

promoted . . .’ by the new order. [Citation.] Thus, the parent must sufficiently allege 

both a change in circumstances or new evidence and the promotion of the child’s best 

interests.” (In re G.B. (2014) 227 Cal.App.4th 1147, 1157, fn. omitted (G.B.).) “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.” (Ibid.) 

We review the juvenile court’s denial of Mother’s section 388 petition without an 

evidentiary hearing for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 

317-318 (Stephanie M.).) The denial must be upheld unless we can determine from the 

record that the juvenile court’s decision exceeded the bounds of reason “by making an 

arbitrary, capricious or patently absurd determination.” (In re A.S. (2009) 180 

Cal.App.4th 351, 358; Stephanie M., at p. 318.) When two or more inferences can 

reasonably be deduced from the facts, we have no authority to substitute our decision for 

that of the juvenile court. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.)
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“ ‘A “prima facie” showing refers to those facts which will sustain a favorable 

decision if the evidence submitted in support of the allegations by the petitioner is 

credited.’ ” (In re Josiah S. (2002) 102 Cal.App.4th 403, 418.) Consequently, 

section 388 petitions with general, conclusory allegations do not suffice. Otherwise, the 

“decision to grant a hearing on a section 388 petition would be nothing more than a 

pointless formality.” (In re Edward H. (1996) 43 Cal.App.4th 584, 593 (Edward H.).) 

“In determining whether the petition makes the necessary showing, the court may 

consider the entire factual and procedural history of the case.” (In re Jackson W. (2010) 

184 Cal.App.4th 247, 258.) 

After reunification services are terminated, the focus in dependency proceedings 

shifts from family reunification to the child’s need for permanency and stability. 

(Stephanie M., supra, 7 Cal.4th at p. 317; G.B., supra, 227 Cal.App.4th at p. 1163.) A 

court entertaining a section 388 petition at this stage in the proceedings “must recognize 

this shift of focus in determining the ultimate question before it, that is, the best interests

of the child.” (Stephanie M., at p. 317.)

We conclude that the juvenile court did not abuse its discretion in denying 

Mother’s section 388 petition without an evidentiary hearing. In her petition, Mother

alleged that her circumstances had changed because she had completed some of the predisposition services she had been referred to, including a parenting class and domestic 

violence program, and she had an upcoming appointment with a psychiatric nurse 

practitioner. This does not show changed circumstances, only that her circumstances
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were changing. Moreover, while Mother had completed a parenting class in 

February 2022, the status review report filed three months later noted that during visits 

Mother continued to exhibit an inability to safely feed J.J.—the very same problem that 

had been documented by the Department with Mother’s previous children since 2004. In 

addition, Mother spent the visiting time on her phone talking to friends and family and 

had to be redirected to focus her attention on J.J. Furthermore, Father frequently had to 

prompt Mother to remind her of things she was previously warned against, which led to 

them bickering to the point that their visits had to be separated. 

“Not every change in circumstance can justify modification of a prior order. 

[Citation.] The change in circumstances must relate to the purpose of the order and be 

such that the modification of the prior order is appropriate. [Citation.]” (In re A.A.

(2012) 203 Cal.App.4th 597, 612.) “In other words, the problem that initially brought the 

child within the dependency system must be removed or ameliorated. [Citation.] The 

change in circumstances or new evidence must be of such significant nature that it 

requires a setting aside or modification of the challenged order. [Citation.]” (Ibid.)

Mother did not explain in her section 388 petition how she benefitted from the 

services that she completed, in other words, how these services related to her ability to 

provide safe and appropriate care for J.J. On the contrary, Mother’s continuing 

inappropriate behavior during visits established that the problems that brought J.J. into 

the dependency system clearly had not been eliminated. Mother had therefore failed to 

establish a change in circumstances that would warrant granting her section 388 petition. 
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Furthermore, Mother did not establish that the requested change of order would 

be in J.J.’s best interest. “At the point of these proceedings—on the eve of the 

section 366.26 permanency planning hearing—the children’s interest in stability was the 

court’s foremost concern and outweighed any interest in reunification. [Citation.]” 

(Edward H., supra, 43 Cal.App.4th at p. 594.) “[A]fter reunification services have 

terminated, a parent’s petition for either an order returning custody or reopening

reunification efforts must establish how such a change will advance the child’s need for 

permanency and stability.” (In re J.C. (2014) 226 Cal.App.4th 503, 527.) Mother’s 

request to have J.J. returned to her custody with family maintenance services would 

undermine J.J.’s interest in stability and permanency. J.J. had been in a stable, loving 

home where she had bonded with her caregiver who had met all of her needs since she 

was just six weeks old, and who wanted to adopt her. Putting that on hold in order to 

allow Mother six months of reunification services to see if she could do what she was 

required to do to regain custody would not have promoted stability for J.J., and thus 

would not have promoted the J.J.’s best interest. (In re Angel B. (2002) 97 Cal.App.4th 

454, 464.)

Finally, Mother claims her due process rights were violated by the juvenile court’s 

decision which denied her fair and meaningful access to the court simply because she had 

a learning disability. We disagree. In denying the petition, the juvenile court focused not 

on Mother’s learning disability, but rather on her inability to care for J.J. Specifically, 

the court noted that Mother’s petition had failed to address how she benefitted from 
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services to help her “overcome her learning disability that hinders her ability to care for 

the child.” (Italics added.) The primary concern that brought J.J. into the dependency 

system was Mother’s demonstrated inability to properly follow care instructions to safely 

meet J.J.’s most basic needs, such as feeding, without extensive and ongoing assistance 

and guidance. The juvenile court properly focused on the fact that Mother’s petition did 

not address how the services that she completed would ameliorate this concern. Because 

the evidence showed Mother continued to endanger J.J., for example by attempting to 

feed her a Vienna sausage without realizing it was a choking hazard to an infant, the 

court found that Mother’s circumstances had not changed. Thus, the court based its 

denial of Mother’s petition on Mother’s failure to address her difficulties providing care 

for her daughter, not on Mother’s learning disability.

In sum, the juvenile court properly summarily denied Mother’s section 388 

petition.

C. TERMINATION OF PARENTAL RIGHTS

Although Mother filed a notice of appeal from the juvenile court’s order 

terminating her parental rights as to J.J., Mother provides no argument whatsoever on the 

subject. Mother has accordingly forfeited any claim of error regarding the termination of 

her parental rights, and we therefore affirm the order. (J.F., supra, 39 Cal.App.5th at 

pp. 79-80.) 
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DISPOSITION

The juvenile court orders are affirmed. 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

McKINSTER

Acting P. J.

RAPHAEL

J.