Filed 8/11/23 In re M.C. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

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

Juvenile Court Law.

ORANGE COUNTY SOCIAL 

SERVICES AGENCY,

 Plaintiff and Respondent,

v.

A.C.,

 Defendant and Appellant.

 G062205

 (Super. Ct. No. 21DP0066)

 O P I N I O N

Appeal from an order of the Superior Court of Orange County, Robert 

Gerard, Judge. Affirmed in part, conditionally reversed in part, and remanded. 

Respondent’s motion to take additional evidence. DENIED.

Michelle D. Peña, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Leon J. Page, County Counsel, Karen L. Christensen and Deborah B. 

Morse, Deputy County Counsel, for Plaintiff and Respondent.
2

No appearance for Minor.

* * *

A.C. (Mother) appeals from the juvenile court’s order terminating her 

parental rights and placing M.C. (child or minor) for adoption. Mother contends the 

order should be reversed because the court abused its discretion in denying her Welfare 

and Institutions Code section 388 petition to modify or change the court’s order 

terminating reunification services.1 As discussed below, we conclude Mother failed to 

show changed circumstances or the best interests of the child supported her petition. 

Mother also contends the order should be reversed because respondent Orange County 

Social Services Agency (SSA) failed to complete its initial inquiry of all available 

extended family members pursuant to section 224.2, subdivision (b) of the California 

Indian Child Welfare Act (ICWA). SSA concedes that the initial duty to inquiry involves 

inquiring of these maternal relatives, and that it failed to do so. Based on those 

concessions, we will conditionally reverse and remand for compliance with ICWA

inquiry duties. Accordingly, we affirm the denial of Mother’s section 388 petition, 

conditionally reverse the order terminating parental rights, and remand for further 

proceedings.

2

FACTS

A. Dependency Petitions

On January 16, 2021, senior social worker (SSW) Maria Uyesugi filed an 

application for a protective custody warrant pursuant to section 340 to temporarily 

remove M.C., who was born a few days earlier, from Mother and unknown father

1

All further statutory references are to the Welfare and Institutions Code, 

unless otherwise stated.

2

Given the importance and need for finality at this stage in the proceedings, 

we encourage the parties to stipulate to the immediate issuance of the remittitur in this 

case. (See Cal. Rules of Court, rule 8.272(c)(1).)
3

because the child’s physical environment posed a threat to her safety or health. The 

application alleged that although Mother denied any current drug use, she did not agree to 

allow Uyesugi to obtain her medical records and was not forthcoming about her extensive 

drug and criminal history. Notably, Mother had a dependency case in Los Angeles 

County for the child’s half sibling, who was removed from Mother’s house after a 

criminal search of the home was completed by law enforcement “due to reported 

Mother’s drug use, drug sales, and gang affiliation with White Supremacists being 

conducted from the home.” The juvenile court granted the request the same day and the 

child was placed in a foster home.

On January 20, 2021, SSA filed a dependency petition, alleging Mother

failed to protect the minor and abuse of sibling. At the detention hearing, the juvenile 

court found SSA made a prima facie showing the minor came within section 319. It

granted Mother eight hours of supervised weekly visitation and ordered SSA to provide 

reunification services. It also noted that Mother denied any American Indian Heritage. 

Mother’s counsel identified Andrew C. (father or Andrew C.), who was not present, as a

possible father, so the court ordered ICWA and paternity findings deferred.

In the March 9, 2021 jurisdiction/disposition report, it was stated that 

Mother agreed to a case plan consisting of participation in therapy, parent education, drug 

testing, an outpatient substance abuse program, a 12-step program, and a parent 

mentorship program. The report noted that Mother regularly visited the child, and that 

the “prognosis for reunification is good.”

At the jurisdictional hearing, the juvenile court found true the allegations in 

the petition by a preponderance of the evidence, determined the minor came within the 

provisions of section 300, and declared the minor a dependent child of the juvenile court 

under section 360. The court approved the case plan detailed in the March 9, 2021 

report.
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A June 9, 2021 interim review report noted that Mother reported receiving 

services from Sober Life Recovery aka Sober Life USA (Sober Life), including 

counseling, outpatient substance abuse program, substance abuse testing and a 12-step 

program. SSW Crystal Sanchez stated she called Sober Life on April 29, 2021, to check 

on Mother’s case plan compliance, but had to leave a message. The following day, 

Victoria Moore from Sober Life contacted Sanchez and informed her that Mother was in 

their outpatient program, had a mental health counselor and an outpatient counselor, and 

was being drug tested. Sanchez called Sober Life on May 12 and 20 to request updates, 

but received no response. In the interim report, Sanchez recommended that all court 

orders should remain in full force and effect, and the court agreed in a June 9, 2021 

minute order. The court set the six-month review hearing for September 9, 2021.

On September 9, 2021, SSA filed a Status Review Report in which it 

recommended terminating reunification services for Mother and setting a section 366.26 

permanency hearing. SSW Sanchez explained that SSA concluded Mother was making 

minimal progress in her case plan, as “evidenced by no documentation being received 

regarding any of her services through Sober Life, the Mother not participating in her drug 

patch testing, and [Sanchez] being unable to confirm Mother’s participation in Olive 

Crest’s parenting education classes due to no release of information being on file.”

SSA was particularly concerned that Mother’s alleged service provider, 

Sober Life, was not legitimate based on Los Angeles County social worker Leanne 

Parada’s June 2021 investigation of the provider in the dependency case involving 

Mother’s other child. In a July 12, 2021 e-mail, Parada informed Sanchez that on June 

24, 2021 she had visited the location of Sober Life listed on Mother’s intake form, but 

found the office unlocked and seemingly “empty and abandoned.” Parada spoke to 

people at an adjacent business and was informed that “they had been working at the 

office for more than 5 years and had not heard of Sober Life USA being located next 

door nor had they seen any patients going in or out of the suite.” Parada then called 
5

Sober Life and spoke with Ms. Monroe, who, while laughing, informed Parada that Sober 

Life had another location in Lake Forest but could not provide the address. Ms. Monroe 

named several persons who were providing services to Mother but would not provide 

Parada with their contact information. Parada performed a search on the company, and 

the search results showed that Sober Life had been charged with insurance fraud in 2018 

and was shut down. In response to Parada’s e-mail, on July 16, 2021, Sanchez called 

Sober Life and was informed by Tory Barr that “we just closed our doors for good.” 

Sanchez requested all documentation relating to Mother, but, as of September 9, 2021, 

had received no response.

At the September 9, 2021 six-month review hearing, the court continued 

the matter to October 26, 2021 for a contested hearing because of the recommendations

to terminate Mother’s services and set a section 366.26 hearing. On October 5, 2021, 

Mother substituted the public defender with retained counsel Brian W. Baron.

In the October 26, 2021 Addendum Report #1, SSA continued to 

recommend termination of reunifications services, suitable placement for the minor, and 

scheduling a section 366.26 hearing. The report noted that although Mother had new 

service providers, SSA had not been successful in obtaining proof of participation, except 

for one counseling session. Additionally, SSA could not obtain any drug testing records 

because Mother had not signed a release of information.

At the October 26, 2021 contested six-month review hearing, the court

continued the matter to November 29, 2021. It ordered Mother to provide proof of 

services to SSA and to sign all releases of information.

In the November 29, 2021 Addendum Report #2, SSA continued to 

recommend termination of reunification services. It reported that the counseling provider 

advised that Mother was participating in meetings but would be getting a new therapist. 

SSA still could not obtain any drug testing results. One provider did not respond to calls, 

and the other provider stated that “he had not heard of nor had any record of the Mother.” 
6

As for Mother’s reported substance abuse program, on November 10, 2021, Mother

contradicted her prior statements by reporting she never enrolled in that program. 

Finally, as to the 12-step program, SSA could not contact the provider and Mother never 

provided any proof of attendance.

At the November 29, 2021 contested six-month review hearing, the court 

found that reasonable services had been offered to Mother and her progress was minimal. 

It terminated reunifications services and scheduled a section 366.26 hearing for March 

29, 2022. Over SSA’s objections, the court authorized drug patch testing and funding for 

Mother’s substance abuse program with Mariposa.

On March 15, 2022, SSA submitted a report in connection with the section 

366.26 hearing. It recommended the court find the minor adoptable and terminate 

parental rights. That same day, Mother filed a petition to change the court’s order

terminating reunification services pursuant to section 388. In the petition, Mother stated 

that “[s]ince my reunification services were terminated I have completed parenting 

classes at Olive Crest, enrolled in the Mariposa program and I am expected to graduate 

on 4/12/2022. I am stable and sober. I have been testing at Express Urgent Care. I have 

a sponsor. I have been sober for 378 days. I have been visiting [M.C.] four days per 

week for 12 hours. I completed counseling on 02/03/2022. I participated in 12 NA 

[Narcotics Anonymous] meetings per week.”

The court continued the hearing on Mother’s section 388 petition for 

further investigation. In an April 27, 2022 Addendum Report, SSA stated that it 

contacted Mother’s reported test provider, Xpress Urgent Care, to verify tests results. 

The provider informed SSA that Mother tested negative on April 5, 2022. Mother did not 

have any drug test for the other months.

On April 28, 2022, the court conducted the hearing on the section 388

petition. SSA opposed the petition on the basis that other than the single negative test, 

there was no evidence that Mother was sober. “Unfortunately, with no proof of sobriety, 
7

even with the completion of the Mariposa [substance abuse] program, . . . there is [no] 

prima facie evidence to justify return [of the child] at this time.” SSA also noted that the 

completion certificate for the Olive Crest parenting class was dated July 27, 2021, which 

was months before the court terminated services and thus would not support a prima facie 

case. Following the hearing, the court denied the petition, finding Mother had not made a 

prima facie case for relief. On May 3, 2022, Mother appealed the court’s denial of her 

section 388 petition. In an unpublished opinion, in July 11, 2022, involving another child 

of Mother’s (G061354, July 11, 2022) [nonpub. opn.], this court dismissed the appeal, 

finding “[n]o good cause has been shown that an arguable issue exists.”

At the May 12, 2022 section 366.26 meeting, the court found Andrew C. to 

be the alleged father. It relieved Baron as attorney and reappointed the public defender to 

represent Mother. The matter was continued several times until December 6, 2022.

On December 6, 2022, Mother filed another section 388 petition to change 

the court’s order terminating reunifications services and setting a permanent plan of 

adoption. In the petition, Mother submitted four exhibits showing: (1) her completion of 

Mariposa’s 16-week Substance Abuse and Alcohol Programs in April 2022; (2) 

completion of Olive Crest’s 12-hour Parenting Class in July 2021; (3) one negative drug 

test result from Xpress Urgent Care on April 5, 2022; and (4) dismissal of felony identity 

theft charges in Ventura County, entered on January 18, 2022. At the December 6, 2022

hearing on Mother’s section 388 petition, she also submitted evidence of her participation 

in a 12-Step program in January and February 2021.

At the hearing, Mother testified about her participation in various services 

and how the programs helped her gain insight into her drug and parenting problems. 

Mother also testified that at the beginning of the dependency case, she was drug testing 

twice a week. Later, she was offered drug patch testing, but she had an allergic reaction 

to the patch and stopped patch testing. She claimed to have been sober for 378 days, 

since February 14, 2021.
8

Following arguments, the court denied Mother’s section 388 petition. It 

explained that Mother failed to show substantial changed circumstances. After noting 

that Mother’s services were terminated 13 months ago, the court noted Mother produced 

no documentary evidence regarding AA or NA meetings and only one drug test in April 

2022. The court also found that it would not be in the best interest of the child to grant 

the section 388 petition because it would further delay the child’s permanent placement.

The court then heard argument on the section 366.26 petition. Following 

argument and consideration of the SSA reports, the court terminated the parental rights of 

Mother and father, and ordered the child placed for adoption.

B. ICWA Findings

On January 16, 2021, Mother denied Native American Indian heritage to 

SSW Uyesugi. On the ICWA-010 form, a worker indicated that Mother gave no reason 

to believe M.C. is or may be an Indian child.

At the detention hearing, Mother denied Native American Indian heritage to 

the court. Because Mother’s counsel stated that Andrew C. was a possible father and he

was not present, the court deferred ICWA and paternity findings.

In February 2021, Mother reported she was born in Colorado in 1983, but 

moved to California in 2002. She was estranged from her parents, who divorced when 

she was nine years old. Mother had two siblings, a brother and a sister.

On April 28, 2022, the juvenile court addressed ICWA, noting that “our 

various courts of appeal in this state have made it clear that both social services agencies 

and the court all need to collectively do better jobs of making sure that they have made 

state and federally required statutory inquiries into ICWA.” The court then asked Mother

about her Native American Indian heritage, she denied any without further elaboration.

SSW Sanchez then testified that Mother reported the child had no Native 

American Indian heritage to her knowledge. Sanchez also testified that Mother provided 

no names of any relatives for Sanchez to interview about the applicability of ICWA. 
9

Nevertheless, Sanchez was able to contact Mother’s sister, who reported the family did 

not have any Native American Indian heritage. Sanchez also learned that the maternal 

grandmother was deceased.

In the October 17, 2022 Addendum Report, Sanchez reported “no 

additional relatives have come forward or been presented by the [M]other to [Sanchez] in 

order to inquire of ICWA.” On December 6, 2022, Mother testified that she had been in 

contact with her sister, brother, and father to make amends as a part of her 12-step 

program.

As to Andrew C.’s Native American Indian heritage, Mother stated that he 

did not have any. The court, however, ordered Mother to provide his contact information 

to SSA for ICWA inquiry. Thereafter, SSW Sanchez attempted to contact him by phone 

without success. Sanchez drove to the physical address she was provided, but a resident 

informed her that no one by the alleged father’s name lived in the home.

On December 12, 2022, the court found the ICWA did not apply but that 

SSA had an “affirmative and continuing duty of inquiry.”

DISCUSSION

A. Section 388 Petition

Section 388, subdivision (a)(1) states in pertinent part: “Any parent or other 

person having an interest in a child who is a dependent child of the juvenile court . . . 

may, upon grounds of change of circumstance or new evidence, petition the court in the 

same action in which the child was found to be a dependent child of the juvenile court . . . 

for a hearing to change, modify, or set aside any order of court previously made or to 

terminate the jurisdiction of the court.” The petitioning party bears the burden of 

showing that there is new evidence or changed circumstances and that the proposed 

modification would be in the best interests of the child. (In re Stephanie M. (1994) 7 

Cal.4th 295, 317 (In re Stephanie M.).)
10

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

order.” (In re S.R. (2009) 173 Cal.App.4th 864, 870.) The change in circumstances 

supporting a section 388 petition must be material. (See In re Ernesto R. (2014) 

230 Cal.App.4th 219, 223 [requiring a “substantial change of circumstances”]; In re 

Mickel O. (2011) 197 Cal.App.4th 586, 615 [requiring the change in circumstances to be 

“‘significant’” in nature].) As to the best interests element, after the court has terminated 

reunification services and set the matter for a section 366.26 hearing, the focus of the 

case shifts from the parent’s interest in the care, custody, and companionship of the child 

to the needs of the child for permanency and stability. (In re Stephanie M., supra, 

7 Cal.4th at p. 317.) 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 interest of the child.” (Ibid.)

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

may consider the entire factual and procedural history of the case. (In re Jamika W. 

(1997) 54 Cal.App.4th 1446, 1450-1451.) “Whether the juvenile court should modify a 

previously made order rests within its discretion, and its determination may not be 

disturbed unless there has been a clear abuse of discretion.” (In re J.C. (2014) 226 

Cal.App.4th 503, 525.) “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., supra, 7 Cal.4th at pp. 318–319.)

Mother contends the juvenile court abused its discretion in denying her 

second section 388 petition after the December 2022 hearing. We disagree. Mother has 

not shown there was a substantial change of circumstances since the court terminated her 

services in November 2021. As detailed above, her petition was based on: (1) her 

participation in a 12-Step program in January and February 2021; (2) completion of a 

parenting class in July 2021; (3) dismissal of felony identity theft charges in January 
11

2022; (4) one negative drug test on April 5, 2022; (5) completion of a substance abuse

program in April 2022; and (6) her testimony that she has been sober for over one year. 

The 12-step program and parenting class cannot show changed circumstances because 

they occurred well before termination of services. The dismissal of felony identity theft 

charges is not relevant to her drug problem, which was the underlying issue leading to the 

removal of the minor. As for the remaining three facts, they are insufficient to show a 

substantial change in Mother’s drug problems. The court did not credit Mother’s 

testimony that she was sober for over a year because there was no proof, other than the 

one negative test in April 2022. The completion of the drug substance class also did not 

provide sufficient evidence that Mother had made significant progress in addressing her 

drug problem. Additionally, Mother has not shown it would be in the best interest of the 

child to resume reunification services. The petition was brought 13 months after 

termination of services. Granting the petition would delay the child’s permanent 

placement, and thus be contrary to the child’s need for permanency and stability.

Mother’s reliance on In re J.M. (2020) 50 Cal.App.5th 833, is misplaced. 

There, the child was removed because of domestic violence. (Id. at p. 836.) When the 

Mother filed her section 388 petition, she was in approved housing, no longer had contact 

with the father, and had been drug testing and receiving negative results. (Id. at pp. 842–

843.) The child’s counsel “argued strongly in favor of returning” the child to the 

Mother’s care. (Id. at p. 843) In contrast, here, Mother was not compliant with her drug 

testing and the child’s counsel advocated for termination of parental rights. In sum, the 

court did not abuse its discretion by denying Mother’s section 388 petition. Mother

failed to show materially changed circumstances or that the requested change would 

promote the child’s best interests.

B. ICWA

Mother contends SSA failed to complete the initial inquiry set forth in 

section 2242.2, subdivision (b), when it failed to ask her father and brother about ICWA.
12

She requests this court conditionally reverse the court’s order and remand for compliance 

with ICWA, noting that the inquiry of the maternal grandfather and uncle “could be done 

by [SSA] simultaneously with the occurrence of this appeal such that the findings could 

be addressed without further delay.” SSA concedes that the initial duty of inquiry 

involves inquiring of extended family members as to possible Indian heritage (see 

§ 224.2; Cal. Rules of Court, rule 5.481(a)), and that it did not contact the maternal 

grandfather and uncle.

3

This court has adopted a “clear rule of reversal” in all cases where ICWA 

inquiry rules were not followed. (See In re E.V. (2022) 80 Cal.App.5th 691, 698; In re 

A.R. (2022) 77 Cal.App.5th 197, 207.) Based on SSA’s concessions, we conclude SSA 

failed to comply with ICWA. Following our prior precedents, the judgment terminating 

parental rights must be conditionally reversed and the matter remanded for compliance 

with ICWA. (See In re E.V., supra, 80 Cal.App.5th at p. 701; In re A.R., supra, 77 

Cal.App.5th p. 208.) SSA argues we should conditionally affirm the judgment because 

“[w]ith a conditional affirmance, upon remand, the juvenile court can efficiently renew 

the ICWA finding, minimally frustrating the dependency proceeding.” However, as we 

previously observed when conditionally reversing, “SSA can likely complete its ICWA 

obligation before the briefing on appeal is complete, resulting in very little delay when 

the matter is remanded to the juvenile court.” (In re E.V., supra, 80 Cal.App.5th at p. 

700.) Thus, we are not persuaded that a conditional affirmance would result in any 

significant reduction in the impact on dependency matters as opposed to a conditional 

reversal, and thus decline to deviate from precedent here.

3 We deny SSA’s request to take additional evidence of postjudgment ICWA 

inquiry of the maternal grandfather and uncle pursuant to Code of Civil Procedure section 

909. (See In re E.V. (2022) 80 Cal.App.5th 691, 700 [denying motion to take additional 

evidence showing SSA belatedly fulfilling its ICWA obligation].) 
13

DISPOSITION

The juvenile court’s order denying Mother’s section 388 petition is 

affirmed. The order terminating parental rights over M.C. is conditionally reversed and 

remanded to the juvenile court for the limited purpose of allowing SSA to comply with 

the ICWA. After complying with applicable inquiry and notice requirements, if it is 

determined that ICWA does not apply, the court’s judgment shall be reinstated. 

DELANEY, J.

WE CONCUR:

GOETHALS, ACTING P. J.

MOTOIKE, J.