Filed 6/16/15 In re U.S. CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 U.S. et al., Persons Coming Under the Juvenile Court Law. H041803 (Santa Clara County Super. Ct. Nos. 110JD020029, 110JD020030)

SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN’S SERVICES, Plaintiff and Respondent,

v. J.S., Defendant and Appellant.

In March 2010, the Santa Clara County Department of Family and Children’s Services (Department) filed two separate petiti ons alleging the failure of the Mother, J.S., to protect and provide support for her son, U.S. (then 11), a nd her daughter, K.S. (then 5) (collectively, the minors), under Welfare and Institutions Code section 300, subdivision (b) (failure to protect). 1 The minors had been taken into protective custody after Mother

1 Further statutory references are to the Welfare and Institutions Code unless otherwise stated.2 was arrested at her home for being extremely intoxicated and incoherent, and because she was unable to explain a trail of blood leading from her house. Police had determined that Mother had struck a neighbor with a vase in K.S.’s presence. Neighbors had also reported to police that Mother was intoxicate d nearly daily and that she had permitted the
minors “to run around the streets.” The juvenile court sustained the Depart ment’s petitions and ordered reunification
services for Mother as well as for the minors’ father, R.S. (F ather). In February 2011, the minors were placed in the home of their pate rnal aunt in Reno, Nevada. The court terminated services for the pa rents at the 18-month review hearing in September 2011. On May 30, 2012, the court granted legal guar dianship of the minors to their paternal aunt and dismissed the two dependency proceedings. More than three years after the minors were placed in th e care and custody of their paternal aunt, in October 20 14, Mother filed a petition unde r section 388 to change the court’s prior orders. She requested that guar dianship of the minors be terminated and the
minors be returned to her care. In Decembe r 2014, the court deni ed her petition without an evidentiary hearing. On appeal, Mother contends the juvenile court erred by failing to set an evidentiary hearing. She asse rts she made a sufficient show ing in her petition to require the court to set and conduct a hearing. Alte rnatively, she argues that since it appears the court may have denied her petition ba sed upon its understanding that it was conducting an evidentiary hearing, Mother was denied due process because she was not afforded the opportunity to presen t evidence in support of her petition.
We conclude the court did not abuse its discretion in deny ing Mother’s petition
without an evid entiary hearing because Mother failed to make a prima facie showing that the relief she sought was in the minors’ best inte rests. We also reject Mother’s claim that the juvenile court in fact conducted an evid entiary hearing and ther eby denied Mother’s due process rights. Accordi ngly, we will affirm the orde r denying Mother’s petition.3 FACTS AND PROCEDURAL HISTORY
I. Initial March 2010 Petitions and Detention Orders On March 12, 2010, the Department filed two virtually identical petitions alleging the parents had failed to protect the minors. (§ 300, subd. (b).) The Department alleged, 2 among other things, that the minors were pla ced in protective custody after Mother was arrested for being under the influence of alcohol (blood alcohol content of .223). “[M]other was incoherent and unable to ade quately care for her children nor make other arrangements for their care.” Social Worker Vivian Sanchez had reported that four San José Police Officers had responded to a late-night neighborhood dist urbance call and were present at Mother’s home when Sanchez arrived. Officers repor ted that upon their arrival, Mother was extremely intoxicated, out of control, comba tive, and belligerent. Upon their inspection of the premises, the officers found a trail of blood leading from Mother’s apartment and
around the block. Mother had no recollection of what had happened. One of the officers interviewed two neighbors, who stated that Mother was intoxicated almost daily, and “there [were] different characters constantly coming in and out of the apartment.” The neighbors expressed concern about the minor s’ well-being and that “the children are observed to be running around the streets at all hours without any supervision.” K.S. reported to Social Worker Sanchez “that her mommy [had] hit her friend with a vase on the mouth and he was bleeding.” K.S. said she did not know why they had been fighting. K.S. also said Mother ha d sometimes left U.S. and her alone, but her brother took good care of her. K.S. also to ld Sanchez that Father was homeless and she
last saw him “after Christmas.”

2 To avoid repetition, we will sometim es dispense with the phrase “the Department alleged” to describe the allegations contained in the petitions.4 Sanchez interviewed Mother at the scene when she was arrested and found her to be slurring her words, incoherent, and “goi ng on about many stories which did not make sense.” Mother also could not explain wh y there was blood on he r apartment floor or
outside her front door. Sanchez inspected the apartm ent. It was “unkempt and filthy” and had clothes, food, and other items strewn around. There were roaches in many places. Mother had a longstanding substance abus e issue that included alcohol, crystal methamphetamine, and marijuana. She also ha d criminal convictions , which resulted in a
number of incarcerations that interfered with her ability to parent he r children. Mother
had two older children who we re made dependents of the court in 1995. She was provided reunification services in those proceedings, but her parental rights were ultimately terminated. The wh ereabouts of Father—who also had longstanding substance abuse issues and a significant criminal hist ory—were unknown. There had been 10 prior referrals concerning Mother’s and Father’s ge neral neglect, caretaker absence/incapacity, emotional abuse, and sexual abuse of their children. 3 In amended petitions, the Department allege d that Mother had struggled for years to maintain her mental health and had sp ent several weeks in 2006 in a psychiatric hospital. Her untreated mental health issues negatively affected her ability to parent the
minors. On March 12, 2010, the court ordered the mi nors detained pursuant to section 319, subdivision (a). It ordered th at Mother be permitted supervis ed visitation of the minors a minimum of one hour, one time per week.

3 In a report attached to bo th petitions, the social worker stated that there had been “22 known prior CPS referrals for this family in this co unty and other counties.”5 II. May 2010 Jurisdicti on/Disposition Reports A. Jurisdiction/Disposition Reports In its May 2010 jurisdiction/disposition reports, the Department reiterated the circumstances that led to the filing of th e petitions. Father told Social Worker Christopher Peck that he had been unaware of what had happe ned to the minors. Father said that when Mother was not drinking, she was a good parent. He told Peck he had been living on the streets or in emergency she lters for five years. Father acknowledged prior substance abuse issues, but stated he had been sober one to two years and he no longer used drugs.
Peck met with Mother on four occasions. Mother said her substance abuse issues started when she was 11 years old (30 years earlier). She had used alcohol, marijuana, and crystal methamphetamine “on an almost daily basis.” Mother admitted she had a substance abuse problem and had been in troubl e with the law. She also told Peck she had not been feeling menta lly healthy for some time and had been experiencing
hallucinations even without ha ving taken illegal drugs. She requested a psychiatric evaluation so she could possibly receive psychotropic drugs to feel better. In summarizing the prior child welfare referrals, the Department noted a referral from 2001 that involved Mother having passed out on the front lawn due to intoxication, resulting in her arrest. In 2004, at the time of K.S.’s birth, K.S. and Mother had both tested positive for opiates. In 2005, there was a substantiated referral that involved Mother’s general neglect of the minors. An d there were three referrals in 2008 involving Father’s general neglect of K.S., for whom Fa ther had cared before she turned five years
old. Mother’s criminal history consisted of approximately nine misdemeanor and two felony convictions, many relating to alcohol or drugs. Father’s criminal history involved approximately 15 and 6 misdemeanor and felony convictions, respectively.6 The Department indicated that the parent s’ substance abuse issues and Father’s chronic homelessness impeded th eir ability to safely parent the minors. It recommended, among other things, that Mother and Father be offered reunifica tion services and that they
be assessed for substance a buse treatment programs. B. Addendum Reports
Social Worker Peck indicated in an adde ndum report that Mother had told him she had obtained employment, but she had not provided any de tails. Mother had been previously referred to Alcoholics Anonymous (AA) meetings, but she had not supplied the Department with proof of attendance at a ny meetings. During th e two visits Mother had with the minors that Peck had supervised , she had been “very appropriate.” Mother
missed one visit due to her work. In another addendum repor t, the Department indica ted it had been exploring potential placement of the minors w ith relatives either in Calif ornia or in an out-of-state placement. Mother told Peck that under the terms of he r probation, she was required to “complete a 52-week Living without Violence program and an outpatient substance abuse treatment program.” Peck encouraged Moth er to engage in recommended services to
facilitate reunification with her children. It was reported that Mother and Father continued to have separate, weekly, two-hour supervised visits with the minors. The Department noted that Father’s visits appeared to have gone well, and that Mother’s visits had “[gone] well for the most part.”
III. May, July 2010 Jurisdic tional/Dispositional Hearings A contested jurisdictional hearing took pl ace on May 4, 2010. The court sustained the allegations of the petitions and found it had jurisdiction over the minors pursuant to section 300, subdivisions (b) (failure to protect). A dispositional hearing took place on July 8, 2010. The court adjudged the minors to be dependent children; determined by clear and convincing evidence that their welfare required they be taken from the custody of the Mother; determined by clear and7 convincing evidence that placem ent of the minors with the n oncustodial pare nt would be detrimental to the minor’s welfare; ordere d the minors under the continued care of the Department in an approved foster home; a nd ordered that Mother and Father receive
reunification services. IV. August 2010 Interim Report The Department noted in an August 2010 interim report that Mother had completed a parenting orientati on class during that month. She had also attended 29 AA meetings. The Department also noted that Mo ther told a social wo rker on July 28 that
she did “not think she is able to resume th e parental role with her children any time soon due to her own disability a nd personal issue[s].”
V. Report and January 2011 Six-Month Review Hearing At the six-month review hearing, the De partment reported that both minors were placed in the same foster home in Santa Cl ara County. They we re reported to have “adjust[ed] well in their placement and . . . [were] thriving.” The Department was considering placement of the mino rs with their paternal aunt in Reno, Nevada. Mother was on parole, was complying with her paro le conditions, and was working on her case plan services. 4 She was reported to have been ap propriate during her visits with the minors, but had missed some visits because she said she had been sick. On January 6, 2011, the court conducted a si x-month review hearing. It found that conditions still existed which justified the in itial assumption of juri sdiction under section 300, and it ordered the minors under the con tinued care, custody, and control of the Department in an approved foster home.

4 There are conflicts in the record as to whether Mother was on probation or parole during the de pendency proceedings.8 VI. January 2011 Placement Order On January 24, 2011, the Department s ubmitted an ex parte application seeking approval of a change of placem ent for the minors. The Department indicated that a paternal aunt in Reno, Neva da, was willing to provide a home for the minors and, if the minors could not return home, was willing to become their legal guardian or adoptive parent. The court granted the Department’s ex parte applica tion to change the placement of the minors on January 24, 2011. Moth er agreed to the placement change.
VII. Report and May 2011 12 -Month Review Hearing The Department submitted a 12-month review hearing re port in May 2011. It reported that the minors had been living with their aunt in Reno since February 5, 2011, and both were adjusting well to their new schools. Mother had successfully completed a dual-diagnosis outpatient treatment program relating to patients with both substance
abuse and mental health issues . Mother had indicated she wa s grateful to the aunt for caring for the minors, and she stated that sh e could “see that her children [were] very happy through the photos that were shared with her and [from] speak[ing] with them by telephone.” Since the time of the minors’ placement with their aunt, Mother had
“declined to travel to Reno for [] weekly visit[s] due to her current circumstances and personal health issue[s].” She instead request ed weekly telephone vi sits with them. The Department recommended that family reunification services for Mother and
Father continue to be offere d for an additional six months. On May 2, 2011, the court adopted the recommendations of the Department.
VIII. Report and September 2011 18-Month Review Hearing In its 18-month review hearing report in September 2011, the Department
observed that Mother had made “good progress in her case plan and had achieved a completion certificate fro m the substance abuse program a nd [had] drug test[ed] regularly with mostly negative results.” But Mother continued to dec line proposed visits with the minors “due to her own personal health an d mental health[-]related issues.” The9 Department recommended that reunification se rvices be terminated . On September 27, 2011, the court adopted the recommendations of the Department and terminated services for both parents. It also scheduled a selection and implem entation hearing under section 366.26 (the .26 hearing or permanency hearing).
IX. Report and May 2012 Permanency Hearing The Department in its repor t filed in anticipation of the .26 hearing recommended a permanent plan of long-term foster care. It suggested that formal legal guardianship of the minors in favor of their paternal aunt be explored, noting that such an arrangement
would have to be formalized in the state of Nevada where they resided. The Department also reported that since the minors had relo cated, weekly roundtrip bus tickets to Reno had been offered to both parents. Mother had declined to use those tickets and had instead called the minors twice per week. But she had nonethel ess arranged her own transportation to Reno to visit with th em on the July 4th (2011) weekend. In a further report, the Department r ecommended a permanent plan of legal guardianship for the minors and dismissal of th e dependency proceedings. The paternal aunt had indicated that legal guardianship, ra ther than adoption, was in the minors’ best interests because of their “healthy relationship with both of the parents.” The Department indicated the aunt was “supportive of the parent s and she [would] contin ue to foster such relationship for the children.” The court conducted the permanency hear ing on May 30, 2012. At the hearing, the court adopted the recommendations of the Department. It orde red legal guardianship to the paternal aunt as the permanent plan for the minors, and it dismissed the dependency proceedings. It also ordered that Mo ther and Father receive supervised
visitation with the minors a minimum of once a month for four hours, along with weekly telephone visits.10 X. October 2014 Petition to Change Court Order In October 2014, Mother filed a request to change court order (petition) in the dependency proceeding for U.S., pur suant to section 388. 5 She requested that the court issue an order terminating the guardianship and returning the minors to her care. The
court calendared the matter to determine wh ether to hold an ev identiary hearing on Mother’s petition. The Department opposed the petition. On Dece mber 11, 2014, the court denied Mother’s section 388 petition, finding that Mother had not shown that the relief sought in the petition was in the minors’ best interests. Mother filed a timely notice of appeal. The order from the denial of her section 388 petition is one from whic h an appeal lies. ( In re K.C. (2011) 52 Cal.4th 231, 235- 236, citing section 395.)
DISCUSSION
I. Applicable Law A. General Dependency Principles Section 300 et seq. provides “a compre hensive statutory scheme establishing procedures for the juvenile court to follow when and after a child is removed from the home for the child’s welfare. [Citations.]” ( In re Celine R. (2003) 31 Cal.4th 45, 52.) As our high court has explained, “The objective of the dependency scheme is to protect abused or neglected children and those at substantial risk ther eof and to provide permanent, stable homes if t hose children cannot be returned home within a prescribed period of time. [Citations.] Although a parent’s interest in the care, custody and companionship of a child is a liberty interest that may no t be interfered with in the

5 Mother apparently did not file a separate petition in K.S.’s dependency proceeding. But when the cour t considered whether to sche dule an evidentiary hearing on Mother’s petition, it expressly considered both dependency proc eedings. Thus, the court’s order denying the petition a pplies to both proceedings.11 absence of a compelling state in terest, the welfare of a child is a compelling state interest that a state has not only a right, but a duty, to protect. [Citations.] The Legislature has
declared that California has an interest in providing stable, permanent homes for children who have been removed from parental custod y and for whom reunification efforts with their parents have been unsuccessful. [Citati ons.] This interest is a compelling one. [Citation.]” ( In re Marilyn H. (1993) 5 Cal.4th 295, 307.) After it has been adjudicated that a child is a dependent of the juvenile court, the exclusive procedure for establishing the perman ent plan for the child is the permanency hearing as provided under section 366.26. Th e essential purpose of the hearing is for the court “to provide stable, permanent homes for th ese children.” (§ 3 66.26, subd. (b); see
In re Jose V. (1996) 50 Cal.App.4t h 1792, 1797.) There are si x statutory choices for the permanency plan. Although the preferred choice is an order that the child be placed for adoption, coupled with the termination of parental rights ( In re Celine R. , supra , 31 Cal.4th at p. 53), the court— as it did here—may “[a]ppoint a relative or relatives with whom the child is currently residing as le gal guardian or guardians for the child, and order that letters of guardianship issue.” (§ 366.26, subd. (b)(3).)
B. Section 388 Petitions to Change Orders At any time after the court has determined a child to be a dependent of the juvenile court, “[a]ny parent or other person having an interest in the child” may by verified petition request the court to change, modify or set aside a previous juvenile court order “upon grounds of change of circumstance or new evidence.” (§ 388, subd. (a)(1).) A petition under section 388 is a ppropriate to seek a change of a prior guardianship order and to change custody to have a child returned to the parent. ( In re Michael D. (1996) 51 Cal.App.4th 1074, 1090, 10 86-1087.) Likewise, a se ction 388 petition may be brought to seek the modification of a prior permanency order. ( In re Jasmon O. (1994) 8 Cal.4th 398, 414.)12 If the court determines from the petition that “it appears that the best interests of the child . . . may be promoted by the propo sed change of order,” it shall schedule a hearing on the matter. (§ 3 88, subd. (d) (hereafter, § 388(d)).) The petition is liberally construed in favor of its sufficiency. ( In re Jasmon O. , supra , 8 Cal.4th at p. 415; see also Cal. Rules of Court, rule, 5.570(a).) Thus, a parent seeking modification of a prior court order pursuant to a section 388 petition must “make a prima facie showing to trigger the right to proceed by way of a fu ll hearing. [Citation.]” ( In re Marilyn H. , supra , 5 Cal.4th at p. 310.) “There are two parts to th e prima facie showing: The parent must demonstrate (1) a genuine change of ci rcumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the ch ildren. [Citation.]” ( In re Anthony W. (2001) 87 Cal.App.4th 246 , 250; see also Cal. Rules of Court, rule 5.570(d) [petition may be denied ex parte if petitioner fails to state change of
circumstance or new evidence or “fails to show that the requested modification would promote the best interest of the child”].) If the petition’s allegations , liberally construed, do not show changed circumstan ces under which the child’s in terests would be promoted by changing a prior order, the court need not order a heari ng on the section 388 petition. ( In re Zachary G. (1999) 77 Cal.App.4th 799, 806; s ee generally Seiser & Kumli on Cal. Juvenile Courts Practice and Procedure (Matth ew Bender 2014) § 2.14 0[2], p. 2-468 [law is “clear that a hearing is not required if th e petition fails to make a sufficient showing to justify one”].) Such summary denial does not violate the due process rights of the petitioner. ( In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413-1414.) The parent’s burden of showing that cha nged circumstances are sufficient such that the child’s interests would be promoted by modifying a prior order “is a difficult [one] to meet in many cases, and particularly so when . . . reunification services have
been terminated or never ordered. After the termination of reunification services, a parent’s interest in the care, custody and companionship of the child is no longer paramount. [Citation.] Rather, at this point, the focus shifts to the needs of the child for13 permanency and stability. [Citation.]” ( In re Angel B. (2002) 97 Cal.App.4th 454, 464.) As such, any order made following a petitio n brought under section 388 modifying a prior order involving custody or visitation of a dependent child must be based upon the court’s “find[ing] by clear and convincing evid ence that the proposed change is in the best interests of the child.” (§ 388, subd. (a)(2).) A determination on whether to change an order by granting a section 388 petition “is ‘committed to the sound discretion of the j uvenile court, and [its] ruling should not be disturbed on appeal unless an abuse of discre tion is clearly established.’ [Citation.] An
abuse of discretion occurs when the juvenile court has exceeded the bounds of reason by making an arbitrary, capricious or patently absurd determination. [Citation.]” ( In re
Marcelo B. (2012) 209 Cal.App.4th 635, 642, quoting and citing In re Stephanie M. (1994) 7 Cal.4th 295, 318.) This abuse of discretion standard also applies where the
court denies a section 388 petition without an ev identiary hearing. ( In re G. B. (2014) 227 Cal.App.4th 1147, 1158.)
II. Evidentiary Hearing on Section 388 Petition Was Properly Denied A. Background Concer ning Section 388 Petition
1. Petition and Orde r Setting Hearing On October 8, 2014 6 —more than three years after the minors were placed in the care and custody of their paternal aunt—M other filed her petition. She requested a change to the court’s prior order appointi ng the aunt as guardian and dismissing the proceedings. She indicated she was now fr ee of alcohol and dr ug dependency, was recently married, and was prepared to complete her case plan. She also indicated that the changes in circumstances in her life were that she (1) had completed all court-ordered classes; (2) was completely free of alcohol and drugs; (3) had “moved away from [her]

6 All dates hereafter are 2014 unless otherwise specified.14 old environment”; and (4) was living in a new county with her husb and. She indicated that the requested modification of the order w ould be in the minors’ best interests because
it would allow them to be back in her life wi th a “new beginning”; would permit them to thrive, grow [ , ] learn how to get through life with a [b]iological parent”; and she would “direct them, nu[r]ture th em in a healthy, positive, stable home.” The court placed the matter on calendar fo r November 20 (later continued to December 11) to determine whether to hold an evidentiary hearing on Mother’s petition. 2. Department’s No vember 2014 Report The Department filed a report opposi ng Mother’s petition, contending that termination of the guardianship was not in th e minors’ best interests. It repeated the history of the proceed ings involving the minors and the child welfare history involving Mother, including prior proceedings in which Mother’s parental rights of her two older
children were terminated. Social Worker Susie Wong met with the minors’ legal guardian (the paternal aunt) on November 9. The paternal aunt and the minors had moved from Reno to Ripon, California, in August. The paternal aunt ha d recently started a new full-time job. She had moved to Ripon to be closer to her el derly mother and because she thought it would facilitate more frequent visits of the minors by their parents. The paternal aunt stated that Moth er had visited her children in Reno approximately three to four times a year. But Mother had also missed two scheduled visits with the minors, which had greatly di sappointed them. The paternal aunt had
indicated that she welcomed Mother’s visits but felt they disrupted the minors’ routine and structure, citing two examples from Moth er’s unsupervised visit of the minors in October. Mother had called to tell the paternal aunt that she would pick up the minors at
12:30 a.m. because she did not get off from work until 11:00 p.m. But Mother did not arrive until 3:00 a.m., after the minors had fallen asleep in the living room waiting for her. Then, although the paternal aunt had as ked Mother to return the minors by 6:00 p.m.15 on Sunday because th ey had school the next day, Moth er did not arrive until 9:30 p.m.
Mother cited a broken windshie ld wiper as the reason for be ing late; however, it had not rained that Sunday. The patern al aunt also reported that U.S. had told her that Mother
had let him drive a car on two occasions wh en he was only 14 and had no learner’s permit. Wong spoke by telephone with Mother on November 7. Mother said she had gotten married in September 20 13 and had been living in Fres no since early 2014. Wong
asked Mother for information about her husb and so a criminal background check could be performed. “[M]other gigg led and did not res pond to the question.” Wong explained the importance of knowing the background of people living in the home, but “[M]other giggled again [and] did not provide the inform ation.” Wong requested that Mother come to the San José office the following week to be interviewed, but Mother responded she could not. After Wong expl ained the importance of Moth er’s providing information showing she could care for the minors, Mother said she could not get a ride from Fresno. Wong “asked [M]other where she liv ed last year. [M]other said [ , ] ‘I told you three times. I’m in Fresno and that’s why I can’t come next week.’ [Wong] said, ‘I understand you live in Fresno. I’m asking where did you liv e last year?’ [M]other giggled again and said, ‘You’re so funny.’ ” Wong reported that Mother did not an swer Wong’s questions throughout the telephone call and did not enga ge in the conversation. Mother indicated she had been clean and sober for three years. In respon se to asking whether she had completed her case plan, Mother stated she ha d done so. Wong requested, and Mother agreed to mail, documentation confirming she had completed her case plan. Wong again requested that Mother schedule an interview, but Mother terminated the call, saying there was someone at the door. Mother agreed to call Wong on November 10, but Mother had not contacted Wong as of November 17.16 The Department reported that the minors ap peared to be happy and relaxed in the home environment with their gu ardian. The minors stated th ey were happy living with their aunt. U.S. (16) stated that he had a career goal planned after he finished high school
and that he wanted to live with his aunt until he was 20. He said he was very glad his aunt would emotionally and fina ncially support him in achieving his career goal. K.S. (10) had a close relationship with her brother and her pate rnal aunt. The Department indicated that the paternal aunt had been providing the minors with a structured environment, good care, and support for almo st four years. The Department concluded “it would be detrimental to remove [the minor s] from [that] current stable and nurturing
environment.” 3. Department’s December 2014 Report The Department filed a supplemental re port reiterating its recommendation that Mother’s petition be denied. Social Worker Wong met with Mother and her husband in
court on November 20. Mother —contrary to what she had said previously to Wong about having been clean and sober for three years— said she had been clean and sober since
2012. Neither she nor her hu sband was working. Mother told Wong: “ ‘I want my
children back becau se my life is empty without them.’ ” She said sh e had changed and
wanted to raise the mi nors as a family. On December 3, Wong met with Mother at her two- bedroom apartment obtained through Section 8 housing in Fresno. The hom e was clean and tidy. Mother stated that she spoke weekly with the minors by telephone. Sh e provided Wong with documentation concerning her work on her case plan, which c onsisted of a certificate of completion of a parent orientation course in 2010; a cert ificate of completion of a substance abuse treatment course in 2011; sign-up sheets show ing attendance at AA meetings in 2010 and 2011; and an undated (apparently February) dr ug testing laboratory re port. Mother also told Wong she had taken a parenting class a nd received counseling pr eviously, but did not recall the names of the providers.17 On December 7, Wong spoke with the patern al aunt by telephone. The aunt said
that Mother had taken the minors to lunch on November 29, and Mother had picked them up and dropped them off on time. Wong spoke with the minors on December 7, and they both said they were happy at home with their aunt. 4. Hearing Although the matter was origin ally set for November 20, the court, at the request of counsel for both Mother and the minors, continued the matter to December 11. On that date, the Department, through counsel, argued that Mother had not presented a prima facie case through her petition to warrant the scheduling of an eviden tiary hearing. The Department acknowledged that while Mother ’s statements about her life potentially indicated changed circumstances, she had not shown that termination of the guardianship
and return of the minors to her was in th e minors’ best interests. Counsel for the Department also argued that if the court were “to hear this matter,” the materials presented in the two reports showed that the minors’ best interests would be served by having them continue to remain in the care of their paternal a unt with visitation by
Mother. Counsel appointed to represent the minors joined in the Department’s position. Minors’ counsel argued that, even construi ng Mother’s petition liberally on the question of whether to grant a hearing, Mother had not made a prima facie showing that termination of the guardianship and a change of custody would be in the minors’ best
interests. Minors’ counsel also indicated she had met with the minors who said they
wanted their visits with Moth er to continue but were very comfortable living with their
aunt and did not want to have th eir living arrangements changed. Mother’s counsel argued that Mother had demonstrated a change of circumstances: she had moved away from San José where there had been influences that had led to the dependencies; had remarried and was in a hea lthy and happy relationship; had been going to church; and had been mainta ining her sobriety a nd had been working with a sponsor.18 On the question of the minors’ best interests, Mother’s counsel argu ed that Mother felt very strongly it was in K.S.’s best interests that she live with her mother. As to U.S.,
counsel indicated that Mother acknowledged that he was 16 years old, that he had a great deal of say concerning where he wanted to live, and that he had settled in with his aunt.
Counsel stated that Mother “w ould like the opportun ity to have a bigger hearing” on her section 388 petition. The court found there had been a showing of a change in circumstances presented in the petition, but concluded as to “the second prong, that bein g whether or not the requested change is in the best interest of the minors, it is the Court’s decision and finding that it would not be. Both of these yo ung people have been in a stable, permanent home with a guardian, who is a relative, a nd are thriving in that home.” The court indicated that “based on that,” it would “deny the 38 8 [petition].”
B. The Court Did Not Abuse It s Discretion Denying the Petition 1. No Error in Not Setting an Evidentiary Hearing
Mother contends the court abused its discretion by denying her petition without scheduling an evidentiary hearing pursuant to se ction 388(d). To require the court to set such a hearing, Mother was re quired to have shown in the petition, liberally construed, both “(1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best inte rests of the children. [Citation.]” ( In re Anthony
W. , supra , 87 Cal.App.4th at p. 250.) Stated co nversely, the court could have summarily denied Mother’s petition if she had “fail[ed] to state a cha nge of circumstance or new evidence that may require” the requested change of order or had “fail[ed] to show that the requested modification would promote the best interest of the child.” (Cal. Rules of Court, rule 5.570(d).) Although the court conc luded that Mother had made a prima facie showing of a change of circ umstances, it found she had not satisfied her burden of showing that the requested change would be in the best interests of the minors (the second prong).19 The court did not abuse its discretion by ma king these findings. Mother stated in her petition that modification of the prior gu ardianship order would allow the minors to
be back in her life with a “new beginning”; would pe rmit them to “thrive, grow [ , ] learn how to get through life with a [b]iological parent”; and she would “direct them, nu[r]ture them in a healthy, positive, st able home.” These conclusory statements were insufficient
to show that modification of the guardianship order was in the minors’ best interests. A petition filed under s ection 388 “may not be conclusory.” ( In re Anthony W. , supra , 87 Cal.App.4th at p. 250; see also In re Edward H. (1996) 43 Cal.App.4th 584, 593.) Notwithstanding the cour t’s obligation to liberally construe a petitioner’s filing, the allegations “must nonetheless describe speci fically how the petition [would] advance the child’s best interests. [Citation.]” ( In re G. B. , supra , 227 Cal.App.4th at p. 1157.) Thus,
in Anthony W. , the appellate court, in affirming the ju venile court’s denial of a section 388 petition without ordering an evidentiary heari ng, noted that “[s]uc cessful petitions have
included declarations or other attachments which dem onstrate the showing the petitioner will make at a hearing of the change in ci rcumstances or new evidence. [Citation.]” ( Anthony W. , at p. 250

. ) In Anthony W. , the petitioner had submitted a bare petition without any “specific information; she did not attach any docum ents in support of her petition or provide names or dates. ” ( Id. at p. 251, fn. 4, original italics.) Likewise, the petition in this case contained not hing concrete to show the re quested change would be in the minors’ best interests. Indeed, implic it in Mother’s argument defending the adequacy of her petition is the assertion that the recent change in her circumstances was itself in the best interests of the minors. But accepting th is implicit asserti on would undermine the
child-centered focus that the best-inter ests prong requires un der section 388(d). The analysis of the court in Angel B. , supra , 97 Cal.App.4th 454 is instructive. In that case, the court denied the mother’s section 388 petition wi thout scheduling an evidentiary hearing and shortly thereafter terminated her parental rights. ( Id. at pp. 458- 459.) The appellate court noted that “[w]he ther [m]other made a prima facie showing20 entitling her to a hearing depend [ed] on the facts alleged in the petition, as well as the facts established as without dispute by the court’s own file.” ( Id. at p. 461.) It held the juvenile court had not abused its discreti on in denying the mother a hearing. ( Id. at p. 462.) In reaching its conclusion, the Angel B. court contrasted its circumstances with those in three appellate cases in which the j uvenile court’s summary denial of section 388 petitions was reversed. ( Angel B. , supra , 97 Cal.App.4th at pp. 462-463.) In In re Jeremy W. , supra , 3 Cal.App.4th at pages 1415 to 1416, the moth er-petitioner, in addition to her own declaration, had submitted the decl aration of her doctor opining that she was currently able to care for he r child. She had also subm itted her mother’s declaration indicating that her daughter was able to care for her child and the child had indicated he wanted to be reunited with his mother. ( Id. at p. 1416.) Similarly, in In re Hashem H. (1996) 45 Cal.App.4th 1791, 1798, the mother presented a declaration from her doctor describing her ongoing therapy in which th e doctor opined the mo ther was able to adequately supervise her son full time, a nd recommended the son be returned to the mother’s custody. And in In re Aljamie D. (2000) 84 Cal.App.4th 424, 432, the mother, in addition to showing improvements in her situation, including co mpletion of various courses, showed that her childre n repeatedly stated they wished to live with their mother.
The Angel B. court observed that, in contrast to those three appellate decisions, Angel B.’s mother had submitted no evidence in her section 388 petition that she was ready to assume full-time care and custody of her child. ( Angel B. , supra , 97 Cal.App.4th at p. 463.) The court observe d that although Angel B.’s mother had indicated she had completed a drug program, th e length of her sobriety “was very brief compared to her many years of drug addiction . . . and in the past she had been unable to
remain sober even when the stakes involve d were the loss of her other child.” ( Ibid. ) It
also noted the mother had failed to establis h that her current living arrangements were suitable for her child. ( Ibid. ) And the court, in affirmi ng the summary denial of the21 mother’s petition, emphasized there was no ev idence the minor preferred living with his mother rather than continuing to live with his foster family. ( Ibid. )
The circumstances here are similar to those in Angel B. There was nothing in Mother’s petition beyond her ow n conclusory statements th at she had maintained her sobriety and was ready to care for the minors. As was the case in Angel B. , Mother’s period of her claimed sobriety (approximat ely two years) was relatively brief as compared with her 30-year history of subs tance abuse, and she had previously lost custody of her two older child ren because she was unable to maintain her sobriety. (See Angel B. , supra , 97 Cal.App.4th at p. 463.) Moreov er, there was no ev idence the minors preferred to live with Mother ra ther than their aunt. (See ibid. ) Indeed, the evidence was directly to the contrary. As indicated by the minors’ counsel, they wanted to continue to
live with their aunt while maintainin g a visiting relationship with Mother. Furthermore, where, as here, a change in placement is sought after the court has terminated services, the focu s shifts to the “needs of the child for pe rmanency and stability,” and there is a rebuttable presumption that continued foster care is in the child’s best interests. ( In re Stephanie M. , supra , 7 Cal.4th at pp. 324-325.) Mother’s allegations that the requested change in placement was in the minors’ best interests were conclusory and inadequate. ( In re G. B. , supra , 227 Cal.App.4th at p. 1157; In re Anthony W. , supra , 87 Cal.App.4th at p. 250.) In other words, the allegations of the petition did not rebut the presumption that the minors’ continued place ment with their guardian—which had been ongoing for nearly four years—was in the minors’ best interests.
2. There Was No Evidentiary Hearing Mother’s challenge to the court’s order is based upon the alte rnative argument that the order is ambiguous. She asserts it is unclear whether the court denied the petition
because there had not been a prima facie showing warra nting the granting of an evidentiary hearing, or, alternativel y, the hearing the court conducted was an evidentiary hearing and the court found insu fficient evidence that the minor s’ best interests would be22 promoted by the requested change of order. She contends she made a sufficient showing
to warrant an evidentia ry hearing, but, alternatively, argues that she was denied due process if the hearing held was an evidentiary hearing because she was not given the opportunity to present affi rmative evidence on the best-interests prong. In support of her position, Mother relies heavily upon a brief colloquy between her
counsel and the court at the conclusion of the December 11 hearing. After argument by counsel, the juvenile court judge said: “I be lieve that there is a sh owing of a change in circumstances. . . [¶] Regarding the second pron g, that being whether or not the requested change is in the best interest[s] of the minor s, it is the Court’s opinion and decision that it
would not be. Both of these young people have been in a st able, permanent home with a guardian, who is a relative, and are thriving in that home.” Follo wing some intervening discussion, Mother’s counsel inquired: “You r Honor, may I just clarify? Is the Court denying the 388 [petition] because a prima f acie showing has not been made, or because the Court is finding that it would not be in the children [ ’ ] s best interest[s]?” The court responded, “That it would not be in the in the children [ ’ ] s best interest[s].” To understand this colloquy, it must be placed in th e context of the entire proceedings. After Mother filed her petition, the court entered an order pl acing the matter on calendar for November 20, using a preprinted Judicial Council Form JV-183. That form contained the following handwr itten language: “This matter is set to determine whether to hold a hearing.” Mother argues this or der is ambiguous, because on the preprinted form, above the handwritten language, was the fo llowing: “The court orders a hearing on the form JV-180 reques t because the best interest of the child may be promoted by the request.” We disagree with Mother’s argu ment. We conclude the handwritten notation23 overrode the preprinted language of the form, making it clear the court was not setting an evidentiary hearing un der section 388(d). 7 In further support of our conclusion, at the initial hearing on November 20, the Department’s counsel made clear he r understanding that the court had not granted an evidentiary hearing on the petiti on pursuant to sec tion 388(d): “We are [here] for a 388 [petition] filed by the mother, and the 388 [p etition] listed that the Court had not yet granted a 388 hearing. Our po sition is that this 388 [petition] does not meet the standard and should not be gran ted and should be dismissed outri ght. I’ll submit on the report for today [ , ] recommending that the Court not make any changes with respect to the 388 [petition,] as [the petition] fails to state a prima facie [case].” After the court entertained and granted a motion to continue the matter, it indicated: “As [c]ounsel correctly stated, the Court put this on to determine whet her or not to hold a 388 hearing.” On December 11, the Department’s counsel reiterated her understanding that the court was considering whether to set an evidentiary hearing on the petition: “The Court initially set this matte r for a hearing to determine if a hearing was warranted.” The Department’s counsel went on to argue that , “on the issue of whether the hearing is warranted,” Mother demonstrat ed a change of circumstance s but “the petition on its face does not indicate why terminating the gua rdianship would be in the children [ ’ ] s best interest[s].” Likewise, the minors’ counsel argued “that even if the Court construes the 388 [petition] liberally on its face, which the Court should be doing when determining whether or not to grant the hearing, while I do believe that [Mot her] has had changed circumstances, I don’t believe that the JV-180 [petition] shows that it would be in the

7 It appears there is no preprinted form enabling the court to calendar the matter to determine whether to order an evidentiary hearing under section 388(d). That being the case, the court here simply utilized the form designed for setting an evidentiary hearing as a matter of convenience, cl arifying that the hearing it was setting was not one pursuant to section 388(d).24 children [ ’ ] s best interest[s] to be re turned to her care at this time.” The argument of
Mother’s counsel also made cl ear that she, as well, unders tood that the purpose of the hearing was for the court to determine whet her to set a hearing on the petition. She argued that Mother had “met her burden to make a prima facie showing” of change of circumstances, and requested “a bigg er hearing” on the petition. Based upon this record, Mother’s argument that the court conducted an evidentiary hearing on her petition ignores critical aspects of the reco rd and therefore places an improper interpretation of the colloquy between her counsel and the court. The record is clear that both the parties and the court under stood that the proceed ing before the court was to determine whether a prima facie showi ng had been made by Mother to warrant the setting of an evidentiary hear ing pursuant to section 388(d ). Furthermore, Mother had the burden of making a two-prong showing of (1) changed circumstances/new evidence and (2) best interests for both the setting of an evidentiary hearing under section 388(d)
and for the granting of the petition. Therefor e, the court’s response to the inquiry of Mother’s counsel “[t]hat it w ould not be in the children [ ’ ] s best interest[s]” does not clearly reflect, as claimed by Mother, that the court was denying the petition after having considered the matter in a purp orted evidentiary hearing.
In re G. B. , supra , 227 Cal.App.4th 1147 is instructive. There, as here, after the mother filed a section 388 petition, the court, using a Form JV-183 order, checked the box indicating “that a hearing was ordered to cons ider the petition ‘because the best interest of the child may be promoted by [it].’ ” ( Id. at p. 1154.) At the hearing, the mother’s
counsel stated “her understandi ng that ‘we are on for a setting of [the . . . section 388 petition,’ ” and the agency’s counsel argued th at the mother was not entitled to a hearing
because she had not satisfied either the ch anged circumstances or the best interests prongs. ( Ibid. ) The juvenile court indicated it ha d liberally construed the petition to afford the parties a chance to argue whether there should be an evidentiary hearing, and then denied the setting of such a hearing. ( Ibid. )25 The appellate court held this was not an abuse of discretion. ( In re G. B. , supra , 227 Cal.App.4th at pp. 1158-1159.) There, the court, looking at the overall context (as we do here), rejected the contention that the court had set an evidentiary hearing because of its use of the Form JV-183 order: “[A] cont extual review of the r ecord here shows that in checking the box on the form order indicating such a [best interests] finding, the juvenile court was not deciding that a prim a facie case had been made but was instead scheduling the matter for the parties to argue the issue—an option not included on the
form. When the court heard th e parties’ oral argument on wh ether an evidentiary hearing was required, it expressly clarified that it had liberally construe d mother’s petition ‘ in order to have an opportunity for th e parties to argue for a hearing .’ (Italics added.)” ( Id. at p. 1158, fn. omitted.) The court concluded: “[T]he parties here did not come to court expecting an evidentiary hearing; mother’s co unsel anticipated only that such a hearing
would be set , and she understood that the Agen cy objected. [Citation.]” ( Id. at p. 1159, original italics.) The court here did not deny Mother’s section 388 petition after an evidentiary hearing. Instead, it summarily denied the petition and concluded Mother was not entitled to an evidentiary h earing under section 388(d) because she had failed to make a prima facie showing that the best interests of th e minors would be promoted through the relief sought in the petition. Such summary denial was not an abuse of the court’s discretion
and did not violate Mother’s due process rights. ( In re Jeremy W. , supra , 3 Cal.App.4th at pp. 1413-1414.)
DISPOSITION The December 11, 2014 order denying Mo ther’s petition under section 388 is
affirmed.Márquez, J.

WE CONCUR:

Rushing, P. J.

Grover, J.