1

Filed 8/15/22 In re S.M. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re S.M. et al., Persons Coming 

Under the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH 

AND HUMAN SERVICES 

AGENCY,

Plaintiff and Respondent,

v.

M.C.,

Defendant and Appellant.

 D080279

 (Super. Ct. Nos. EJ4311A-B)

APPEAL from orders of the Superior Court of San Diego County, Gary 

M. Bubis, Judge. Affirmed. 

Robert McLaughlin, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

Claudia Silva, Acting County Counsel, Caitlin E. Rae, Chief Deputy 

County Counsel, and Emily Harlan, Deputy County Counsel, for Plaintiff and 

Respondent. 
2

INTRODUCTION

M.C. (Mother) appeals the orders in the Welfare and Institutions Code 

section 3001 dependency proceedings of her minor children, S.M. and A.M., 

summarily denying her section 388 petition to modify the juvenile court’s 

prior orders placing the children with their father, Sa.M. (Father). She 

contends the court abused its discretion because her section 388 petition 

made a prima facie showing that circumstances had changed during the 

three-week period since the issuance of the prior orders and that her 

requested orders placing the children with her instead was in their best 

interests. As explained post, we conclude the court did not abuse its 

discretion and therefore affirm the orders summarily denying her petition. 

FACTUAL AND PROCEDURAL BACKGROUND2

I

Initial Dependency Petitions

Mother has three minor children: S.M., A.M., and J.M.3 When 

Mother gave birth to S.M. in 2015, both tested positive for 

methamphetamines. As a result of intervention by the San Diego County 

Health and Human Services Agency (Agency), Mother voluntarily

participated in a substance abuse treatment program and Narcotics 

Anonymous (NA) classes, but relapsed shortly thereafter. After additional

1 All statutory references are to the Welfare and Institutions Code. 

2 For a more detailed factual and procedural background, see our 

recently issued opinion in Mother’s previous appeal in these dependency 

cases, In re S.M. et al. (June 15, 2022, D079745), a nonpublished opinion 

(S.M. I). 

3 J.M. is not a party to this appeal. 
3

measures were instituted, Mother successfully completed services and the 

voluntary case was closed. 

In 2016, Mother gave birth to her second child, A.M. In September

2018, Mother relapsed again and subsequently gave birth to her third child,

J.M., who tested positive for amphetamines and was hospitalized in the 

neonatal intensive care unit (NICU) for “sepsis and rapid breathing.”

Mother told the Agency she used methamphetamines twice during her 

pregnancy, including the day before she gave birth to J.M. She knew that 

using methamphetamines was harmful to her unborn baby. Mother told

the Agency she began using methamphetamines when she was 15 years old 

(in or around 2005) and was “on and off” drugs thereafter, but stopped 

using between ages 18 and 20 (from 2008 to 2010). 

In September 2018, the Agency filed dependency petitions on behalf 

of all three children against Mother and Father, pursuant to section 300,

subdivision (b)(1). At the detention hearing, the juvenile court found the 

Agency made prima facie showings on the petitions and detained the 

children in out-of-home care. S.M. and A.M. were initially placed in a

foster home and then later placed with a maternal aunt. 

At the contested jurisdiction and disposition hearing in November,

the juvenile court found the petitions’ allegations to be true and placed

S.M. and A.M. with Mother, who was living with her mother (the maternal 

grandmother), on the condition that Father not reside in the family home.

Mother enrolled in a substance abuse treatment program the day 

dependency petitions were filed and had been making “good” progress. 

At the six-month review hearing in June 2019, the Agency reported

that Mother struggled to maintain her sobriety. She had relapsed 

multiple times and used methamphetamines in December 2018 and 
4

February 2019 and was discharged from her substance abuse treatment 

program in February 2019. After she enrolled in a new substance abuse 

treatment program in March, Mother improved, performed well in that

treatment program, and had no further positive drug tests. At the review 

hearing, the juvenile court found Mother had made “some progress” with 

her case plan and continued placement of S.M. and A.M. with her. 

However, there were several incidents of domestic violence thereafter.

In June 2019, Father was arrested for violating a restraining order while the 

children were home with Mother and the maternal grandmother. In 

September 2019, the maternal grandmother obtained a temporary 

restraining order (TRO) against Mother, asserting that in May Mother had 

grabbed and thrown her down two steps. The maternal grandmother also 

alleged that in June Mother had kicked her, causing her to fall and strike her 

head. 

In its January 2020 report for the contested 12-month review

hearing, the Agency reported that Mother had successfully completed her 

substance abuse treatment program, tested negative throughout this 

period, and was able to maintain her sobriety. T he Agency reported that 

all three children were “very bonded” with Mother and she was “very 

loving” with them. At the January 2020 hearing, the juvenile court found 

that Mother had made substantive progress with her case plan and

continued family maintenance services and placement of S.M. and A.M. 

with her. 

II

Supplemental Dependency Petitions

In June 2020, the Agency filed supplemental dependency petitions 

on behalf of S.M. and A.M. against both parents pursuant to section 387, 
5

requesting that the children be removed from Mother’s care. The Agency 

stated that in May Mother came home at 2:00 a.m. under the influence of 

methamphetamines. When the maternal grandmother told her she could 

not be in the house, Mother became angry, grabbed a large kitchen knife, 

stabbed the walls, and threatened the maternal grandmother. 

At the detention hearing, the juvenile court found the Agency had 

made a prima facie showing on the supplemental petitions, detained S.M.

and A.M. in out-of-home care, and ordered Mother to have reasonable 

supervised visitation. The Agency placed S.M. and A.M. with the maternal 

aunt. 

The Agency thereafter reported that it had been working with Mother 

for nearly 20 months, addressing her substance abuse and general neglect 

of the children. Although Mother had completed a substance abuse 

treatment program, she failed to maintain consistent communication with 

her substance abuse specialist and the Agency did not believe she “use[d] 

the tools to maintain her sobriety when faced with her triggers.” In light of 

the fact that the statutory time for reunification services had been exceeded 

and Mother continued to struggle with her sobriety, the Agency 

recommended that reunification services be terminated for both parents

and a section 366.26 hearing be set to select a permanent plan for the 

children. 

At the August 2020 contested jurisdiction and disposition hearing, the 

juvenile court found true the allegations in the supplemental petitions by

clear and convincing evidence. The court removed S.M. and A.M. from the 

custody of Mother pursuant to section 361, subdivision (c), continued 

placement of the children with the maternal aunt, and ordered Mother to 

continue receiving reunification services. 
6

III

S.M.’s and A.M.’s Section 388 Petition

In February 2021, counsel for S.M. and A.M. filed a section 388 petition 

for modification, requesting the juvenile court terminate Mother’s 

reunification services and set a section 366.26 hearing to select a permanent 

plan.4 As a change in circumstances, the petition alleged that Mother had

struggled to maintain her sobriety and had tested positive for 

methamphetamines in October and December 2020 and for alcohol in 

November 2020. Mother had also missed a drug test in January 2021 and 

had not been engaged in treatment since late January 2021. The petition 

alleged that S.M. and A.M. had been involved in juvenile dependency since

2018 and deserved stability and permanency in a timely manner. 

The Agency maintained its recommendation that reunification services 

be terminated for both parents and a permanent plan be selected at a section

366.26 hearing. 

At the April 2021 combined contested six-month review hearing and

contested hearing on S.M.’s and A.M.’s section 388 petition, the court found 

that Mother’s inaction regarding treatment for her drug abuse created a 

substantial likelihood that reunification would not occur and therefore 

terminated Mother’s reunification services. The court found there had 

been a change of circumstances and it was in the children’s best interests 

to grant the requested modified order. The court further found that Father

had made some progress in his case plan and that it appeared the children

may be returned to him and a permanent plan may not have to be selected. 

Accordingly, the court therefore continued reunification services for 

4 The children’s counsel initially sought termination of both parents’ 

services; however, their counsel subsequently withdrew the petition as to 

Father. 
7

Father. 

IV

Mother’s First Section 388 Petition

On August 19, 2021, the day set for the 12-month review hearing, 

Mother filed a modification petition under section 388, requesting that the 

court reinstate her reunification services until the 18-month review 

hearing. Her section 388 petition asserted there was a change in 

circumstances because she had completed a parenting class, participated in

inpatient drug treatment, made progress in therapy, was clean and sober, 

was stable on psychotropic medication, demonstrated insight into the 

protective issues, and visited with the children as consistently as the 

Agency would allow. Mother asserted that her requested order restoring 

reunification services would be in the children’s best interests because they 

were bonded with her and she had made substantial progress in her

treatment programs and continued to visit them consistently. 

Mother reported to the Agency that her sober date was June 3, 2021. 

She had enrolled in a residential drug treatment program on that date and

completed the program on August 31. Mother reported she had created a 

relapse prevention plan, had random drug testing each week at her

treatment facility, virtually attended NA and AA (Alcoholics Anonymous) 

meetings two to three times each week, and had a sponsor. Mother told the 

Agency that she had learned the effects of her addiction on her children. 

The Agency opposed Mother’s section 388 petition and her request for

reinstatement of reunification services. Although the Agency

acknowledged Mother’s progress in mitigating the protective issue, it noted 

that she was four months into her sobriety. Mother had already completed 

a drug treatment program and attended an outpatient drug treatment

program, but historically relapsed after a couple months of sobriety. The 
8

Agency believed that it was premature to conclude that Mother had made 

significant progress to warrant granting her section 388 petition. 

The juvenile court held an evidentiary hearing on Mother’s section

388 petition on November 16, 2021, which date was about three weeks 

before the scheduled 18-month review hearing on December 6, 2021. 

Mother testified that she was taking steps to maintain her sobriety, 

including participating in therapy and parenting classes, taking her 

medication, and developing a support system. 

The juvenile court denied Mother’s section 388 petition, noting 

initially that she had requested additional reunification services through

the 18-month review hearing, which was set for December 6, 2021 (i.e., a 

three-week period). Although Mother had been doing well recently, the court 

noted that the problem was her “pattern of doing well and falling off the 

wagon.”5 

V

18-Month Review Hearing

In its report for the 18-month review hearing, the Agency stated that 

it was working on obtaining all documents required to place the children 

with Father in Mexico, including their original birth certificates, passports, 

and/or dual citizenship documents. Father was continuing to work with 

Desarrollo Integral de la Familia (DIF) in Mexico to complete his case plan 

objectives and had completed parenting classes and therapy sessions. He 

was participating in his drug treatment program, was attending AA 

meetings, and had consistently tested negative on random drug tests. 

5 Mother filed a notice of appeal, challenging the juvenile court’s 

November 16, 2021 orders denying her section 388 petition. In S.M. I, we 

concluded the court did not abuse its discretion in denying her petition and 

affirmed the orders. (S.M. I, supra, D079745.) 
9

Although DIF had completed an evaluation of Father’s home, the Agency 

was awaiting an English translation of the DIF’s report. An Agency social 

worker had also conducted a virtual video walk-through of Father’s home. 

Father reported that he was able to work as a carpenter to provide for the 

children and had family support. Father lived with the paternal 

grandmother and the paternal great-uncle. He had identified local schools

for the children. Father had unsupervised telephone and video visits with 

the children three times per week. The Agency also reported that Mother 

was residing in a sober living home and was working part-time. She was 

participating in her aftercare drug treatment program, was attending 

NA/AA meetings, and was compliant with her psychotropic medication. 

At the initial December 6, 2021 review hearing, Mother opposed the 

Agency’s recommendation that the children be placed with Father in 

Mexico and requested that the hearing be continued and set for a contested 

18-month review hearing in 60 days. The court granted her request. The 

court also ordered the Agency to facilitate at least two unsupervised visits

per week between Mother and the children. The court also gave the Agency 

discretion to arrange a 60-day trial visit for the children with Father, with 

the concurrence of their counsel.

In its addendum report for the contested 18-month review hearing, 

the Agency recommended that the court order that the children be placed 

with Father in Mexico with family maintenance services. The Agency had 

received an English translation of the DIF’s evaluation of Father’s home 

and documents confirming that Father had completed some of his case plan 

objectives and had negative drug tests. Father told an Agency social 

worker that he believed it was important for the children to have regular 

communication, and he fully supported their communication, with Mother 
10

to maintain their relationship. The Agency also reported that Mother 

continued to have negative drug tests and was engaging in services. 

Mother’s service providers were concerned about the children moving to 

Mexico because of the great distance, Mother’s inability to travel there to 

visit the children, and Mexico’s violence and environment. They were also 

concerned about the domestic violence history between Mother and Father. 

In January 2022, Mother cancelled two scheduled, unsupervised visits with 

the children because of work conflicts. In February, Mother requested an 

additional visitation day, but her past unsupervised visitation had not been 

consistent. 

At the contested 18-month review hearing that was held over three 

days (i.e., February 7, 14, & 18, 2022), Andrea Echavarria, the Agency 

social worker assigned to the children’s cases, testified that she planned to 

work with DIF and the International Liaison Office (ILO) to coordinate inhome visits to check on the children after their placement with Father in 

Mexico. She had spoken with the paternal grandmother twice regarding 

facilitating the children’s video visits with Mother. Because Father had 

tested negative on drug tests between April and August 2021, she believed 

he did not require further drug testing, but was willing to request testing 

through DIF. Although Father had not cared for the children in the past, 

neither she nor his parenting provider had any concerns about his ability to 

do so. She also had no concerns about the nature and quality of Father’s 

home. The Agency’s transition plan for the children was to request a 

placement visit at the border through the ILO and the Mexican Consulate. 

Father was cooperative regarding the transition plan and was open to 

traveling to Tijuana or a nearby airport to receive the children into his 
11

care. The social worker also testified that both children speak Spanish. 

Father testified that he had been sober since March 2021. He had 

previously abused “crystal” methamphetamine. His relapse prevention 

program included family member support, his AA group, and his two 

sponsors. He was attending AA meetings five to six days per week. He 

testified that he was deported from the United States to Mexico in 2020 

because he had been accused of domestic violence and had violated a 

restraining order protecting Mother, her nephew, and the maternal 

grandmother. His support network consisted of his parents, two sisters, 

and a niece, all of whom lived nearby. He testified that he wanted the

children to have a relationship with Mother and the maternal relatives, 

provided Mother was sober. He had spoken with principals at the 

children’s potential schools and was prepared to obtain any needed 

services, such as therapy, for them. 

The children’s current caregiver testified that Mother had two visits 

per week with the children and had cancelled visits only because of work 

conflicts. The caregiver was concerned that Mother and the maternal 

relatives did not have the time or money to visit the children if they were 

placed with Father in Mexico. On cross-examination, she agreed that her 

only concern about the children’s placement with Father was that she 

believed he had untreated domestic violence issues. She had no concerns 

about his ability to provide the children with a good environment. She 

acknowledged Mother had a history of domestic violence unrelated to 

Father, including her wielding a knife in the maternal grandmother’s 

home. She admitted she had never witnessed any domestic violence 

between Mother and Father. 
12

Mother testified that she was continuing to comply with the terms of 

her outpatient substance abuse treatment program, including working with 

a sponsor and attending 12-step meetings. She testified that she could 

have the children for overnight visits at her sober living facility. She was 

working on a relapse prevention plan, consisting of calling her sister and 

asking her for her advice or to care for the children. She testified that 

Father never participated in the children’s daily routines when he returned 

home from work. She testified that Father “[a]lways” was physically 

violent in the children’s presence and “[a]lways” placed his hands on her 

and beat her up when the children were around. Mother believed that it 

was in the children’s best interests to remain in the United States. Mother 

admitted that she committed domestic violence in the children’s home 

when she wielded a knife in May 2020, but claimed the maternal 

grandmother had exaggerated the incident’s details. She admitted she had 

damaged property and was under the influence of methamphetamine at the 

time. Mother admitted she had participated in several drug rehabilitation 

programs during the past eight years. She admitted that she had not 

shared the address of her sober living program with the Agency social 

worker. 

Mother’s counsel submitted various documents on her behalf, 

including a February 10, 2022 letter from her substance abuse treatment 

program, stating that her last drug use date was June 3, 2021, and that she

began treatment on September 1, 2021. The letter further stated that 

Mother had been tested for drugs 20 times since September 2021, the 

results of which had all been negative. The letter further stated that 

Mother was compliant with the program’s terms, was employed, was living 

in a recovery residence, and had completed a 20-week parenting class. 
13

Mother’s counsel clarified for the court that Mother was not requesting that 

the court return the children to her custody at that time. 

On February 18, 2022, after hearing closing arguments, the juvenile 

court ordered that the children be placed with Father. The court also ordered 

family maintenance services for Father and family enhancement services for 

Mother. The court found that the evidence did not show that there would be 

a substantial risk of detriment to the children’s emotional or physical wellbeing if they were placed with Father. The court noted that if the children 

were not returned to Father at that point, he could lose his parental rights at 

a section 366.26 hearing. The court stayed its placement orders for 21 days 

to allow counsel for Mother or the children to file a writ petition and request 

a stay from the appellate court. The court ordered the Agency to formulate a 

transition plan during that 21-day stay period. It asked Father to consider 

allowing the transition to occur during the children’s spring break at the end 

of March. The court denied Mother’s request for overnight visits with the 

children at that time, noting she had not yet provided the Agency social 

worker with her address. The court encouraged the social worker to evaluate 

Mother’s home for overnight visits if and when Mother provided the worker 

with her address. The court set a special hearing three weeks later to 

determine whether or not the appellate court had intervened regarding its 

placement order and to follow up on the Agency’s transition plan.6

In its addendum report for the March 10, 2022 special hearing, the 

Agency stated that its initial transition plan was for the children to have a 

transitional overnight weekend visit with Father from March 18 through 

6 Mother filed a notice of appeal, challenging the juvenile court’s 

February 18, 2022 orders. However, after Mother’s appellate counsel 

submitted a brief stating that there were no arguable issues on appeal, we 

issued an order on June 6, 2022, dismissing her appeal. 
14

March 20. The children would then be officially placed with Father on 

April 1. However, on February 28, the Agency received a child abuse 

referral alleging that the caregiver had physically abused the children. As 

a result, the Agency believed it would be in the children’s best interests to 

be placed with Father as soon as possible while it investigated the matter. 

The Agency arranged for a new placement date of March 16 with the 

assistance of the ILO and the Mexican Consulate. 

The Agency also reported that Mother had provided it with her 

current sober living address on February 18, and its social worker had 

conducted a scheduled home inspection on February 23. Mother shared a 

bedroom with two other mothers and their children. Mother slept on the 

top bunk of a full/queen bunk bed and planned for the children to sleep on 

the top bed with her. The social worker informed Mother that the children 

would need their own bed. Per Mother’s request, the social worker 

authorized Mother to have unsupervised visits with the children at her 

home. 

The Agency reported that on March 4 its social worker spoke with 

Mother about overnight visits with the children, stating that the Agency

would first need information from Mother’s roommates so that it could run 

general background checks which it conducts on all adults who live with or 

have exposure to children. 

VI

Mother’s Instant Section 388 Petition

On March 10, the date set for the special hearing, Mother filed the 

instant section 388 petition, seeking modification of the juvenile court’s 

February 18, 2022 orders. Her section 388 petition alleged that the 

circumstances had changed since the juvenile court’s February 18 orders 
15

and requested new orders placing the children with her or, alternatively, 

granting her overnight visits, which orders would be in the children’s best 

interests. 

At the March 10 hearing, Mother’s counsel represented that Mother’s 

sober living residence allowed Mother to have overnight visits with, or 

placement of, the children at that residence. Her counsel also argued that 

the Agency’s expedited transition plan was not reasonable because it was 

based on an anonymous child abuse referral and requested that the court 

retain the Agency’s original transition plan. The Agency’s counsel stated 

that the Agency did not oppose Mother’s request for overnight visitation 

with the children, provided that the children not be left alone with any

adult who had not been cleared by a background check. The Agency 

opposed Mother’s section 388 petition, arguing she had not made a prima 

facie showing on the petition’s allegations. In light of its open investigation 

of the child abuse referral regarding the children’s caregiver, the Agency 

believed an expedited transition of the children to Father was in their best 

interests.

The juvenile court summarily denied Mother’s section 388 petition, 

finding that she had not made a prima facie showing in support of her 

petition. Noting that its February 18 orders placing the children with Father 

was in full force and effect, the court declined to make a specific ruling on 

how the Agency should effect the children’s transition to his home.7 

Nevertheless, the court ordered that Mother have overnight visitation with 

the children until their placement with Father and thereafter have overnight 

7 Following the February 18, 2022 orders, none of the parties filed a 

motion for an appellate stay of, or a writ petition challenging, those orders. 

Rather, as noted ante, Mother filed only an appeal challenging those orders, 

which appeal we dismissed on June 6, 2022. 
16

visitation at least once every 90 days. Mother timely filed a notice of appeal, 

challenging the court’s March 10, 2022 orders denying her section 388

petition and denying her request for an order to create a gradual transition 

plan for the children to move to Mexico. 

DISCUSSION

I

Section 388 Legal Principles Generally

Section 388, subdivision (a) provides: “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 or in which a guardianship was 

ordered pursuant to Section 360 for a hearing to change, modify, or set 

aside any order of court previously made or to terminate the jurisdiction of 

the court. The petition . . . shall set forth in concise language any change of 

circumstance or new evidence that is alleged to require the change of order 

or termination of jurisdiction.” The burden of proof is on the moving party 

to show, by a preponderance of the evidence, that: (1) there are changed 

circumstances or new evidence since the previous order; and (2) the 

requested modification of that previous order would be in the child’s best 

interests. (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.); In 

re G.B. (2014) 227 Cal.App.4th 1147, 1157 (G.B.); In re Anthony W. (2001) 

87 Cal.App.4th 246, 250.)

In support of a section 388 petition, the moving party must show 

changed, not merely changing, circumstances. (In re Casey D. (1999) 70

Cal.App.4th 38, 47 (Casey D.); In re Alayah J. (2017) 9 Cal.App.5th 469, 

482 (Alayah J.).) “A petition which alleges merely changing circumstances 
17

and would mean delaying the selection of a permanent home for a child to 

see if a parent, who has repeatedly failed to reunify with the child, might 

be able to reunify at some future point, does not promote stability for the 

child or the child’s best interests. [Citation.] ‘ “Childhood does not wait for 

the parent to become adequate.” ’ [Citation.]” (Casey D., at p. 47, quoting 

In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) To prevail on a section

388 petition, the petitioner must establish a “substantial” change of 

circumstances. (In re Ernesto R. (2014) 230 Cal.App.4th 219, 223 (Ernesto 

R.).) The change must be genuine and “ ‘of such significant nature that it 

requires a setting aside or modification of the challenged prior order.’ ” (In 

re Mickel O. (2011) 197 Cal.App.4th 586, 615; accord In re A.A. (2012) 203

Cal.App.4th 597, 611-612 (A.A.).) Not “every change in circumstance can 

justify modification of a prior order.” (A.A., at p. 612.) A section 388

petition must be liberally construed in favor of its sufficiency. (In re Angel 

B. (2002) 97 Cal.App.4th 454, 461 (Angel B).)

The petitioner “need only make a prima facie showing to trigger the 

right to proceed by way of a full hearing.” (In re Marilyn H. (1993) 5 

Cal.4th 295, 310.) However, if the petitioner does not meet that threshold 

showing, the juvenile court in its discretion may deny a request for a 

section 388 evidentiary hearing. (In re Jasmon O. (1994) 8 Cal.4th 398, 

415 (Jasmon O.).) “The prima facie requirement is not met unless the facts 

alleged, if supported by evidence given credit at the hearing, would sustain 

a favorable decision on the petition.” (In re Zachary G. (1999) 77 

Cal.App.4th 799, 806 (Zachary G.).) Alternatively stated, a prima facie 

case is made on a section 388 petition if its allegations show section 388’s 

two elements are supported by probable cause and need not show a 

probability of prevailing on the petition. (G.B., supra, 227 Cal.App.4th at 
18

p. 1157; In re Aljamie D. (2000) 84 Cal.App.4th 424, 432.) The petition’s 

allegations must be specific regarding the evidence to be presented and 

must not be conclusory. (Alayah J., supra, 9 Cal.App.5th at p. 478.) In 

deciding whether a prima facie showing has been made, the court may 

consider the entire factual and procedural history of the case. (Jasmon O.,

at p. 415; In re Mickel O. (2011) 197 Cal.App.4th 586, 616.) A summary 

denial of a section 388 petition does not violate due process. (Jasmon O., at 

p. 415; Angel B., supra, 97 Cal.App.4th at p. 460.) 

The decision whether to grant or deny a section 388 petition is within 

the discretion of the juvenile court. (In re B.D. (2008) 159 Cal.App.4th 

1218, 1228; In re Y. M. (2012) 207 Cal.App.4th 892, 920.) Likewise, a 

decision to summarily deny a section 388 petition without an evidentiary 

hearing is within the juvenile court’s discretion. (Angel B., supra, 97 

Cal.App.4th at p. 460; Zachary G., supra, 77 Cal.App.4th at p. 808.) On 

appeal, a reviewing court will not disturb a discretionary decision by the 

juvenile court unless it abuses its discretion by making an arbitrary, 

capricious, or patently absurd determination. (Stephanie M., supra, 7

Cal.4th at p. 318; In re Marcelo B. (2012) 209 Cal.App.4th 635, 642.) The 

appellant has the burden on appeal to affirmatively show that the juvenile 

court abused its discretion. (A.A., supra, 203 Cal.App.4th at p. 612.) 

II

Summary Denial of Mother’s Section 388 Petition

Mother contends the juvenile court erred by summarily denying her 

section 388 petition. In particular, she argues the court erred by finding 

that she had not made a prima facie showing that circumstances had 

changed since its February 18, 2022 orders and that her requested orders 
19

were in the children’s best interests. 

A

In her section 388 petition filed on March 10, 2022, Mother requested 

orders modifying the juvenile court’s February 18, 2022 orders. Her section 

388 petition alleged that the circumstances had changed since the juvenile 

court’s February 18 orders and requested new orders placing the children 

with her or, alternatively, granting her overnight visits, which orders 

would be in the children’s best interests. In particular, Mother alleged the 

following changes in circumstances since the February 18 orders: (1) she 

had been clean and sober for nine months; (2) she had maintained regular 

and consistent visitation with the children; (3) the children were extremely 

bonded with her; (4) she had enrolled in domestic violence classes; (5) the 

February 18 orders placing the children with Father in Mexico would 

severely prevent or limit her ability to have in-person visits with them; and 

(6) the Agency had no plan for the children’s ongoing visitation with the 

maternal relatives. Her section 388 petition attached the following 

documents in support of her allegations: (1) a March 10 letter from her 

sober living residence stating that she had followed all of its rules, 

including attendance at AA/NA meetings since her arrival on February 18; 

(2) a February 10 letter from her outpatient treatment program regarding 

her progress and sobriety (which letter had previously been admitted in 

evidence and considered by the court at the contested 18-month review 

hearing); (3) a March 8 letter from her domestic violence program 

confirming her enrollment on February 28; and (4) various photographs 

showing her sober living residence and showing the children with her. 

At the March 10 hearing, Mother’s counsel represented that Mother’s 
20

sober living residence allowed Mother to have overnight visits with, or 

placement of, the children at that residence. The Agency’s counsel stated 

that the Agency did not oppose Mother’s request for overnight visitation 

with the children, provided that the children not be left alone with any 

adult who had not been cleared by a background check. The Agency 

opposed Mother’s section 388 petition, arguing she had not made a prima 

facie showing on the petition’s allegations. 

The juvenile court summarily denied Mother’s section 388 petition, 

finding that she had not made a prima facie showing in support of her 

petition. In particular, the court found that she had not made a prima 

facie showing of changed circumstances. Although the court declined to

make a specific ruling on how the Agency should effect the children’s 

transition to his home, it ordered that Mother have overnight visitation 

with the children until their placement with Father and thereafter have 

overnight visitation at least once every 90 days. 

B

Based on our review of the record, we conclude the juvenile court did 

not abuse its discretion by summarily denying Mother’s section 388

petition. In particular, we conclude the juvenile court correctly found that 

her petition, along with its attachments, did not make a prima facie 

showing that there were changed circumstances or new evidence since its 

prior February 18, 2022 orders. 

Importantly, Mother had the burden to make a prima facie showing 

that there had been a “substantial” change in circumstances in the three-week 

period since the juvenile court’s prior February 18, 2022 orders. (§ 388, subd. 

(a); Stephanie M., supra, 7 Cal.4th at p. 317; Ernesto R., supra, 230 

Cal.App.4th at p. 223.) However, her petition did not allege any specific 
21

substantial change that occurred during that three-week period. Rather, her 

allegations regarding changed circumstances generally related to changes 

over a longer period of time during the children’s dependency cases. First, 

her petition alleged that she had been clean and sober for nine months.

Presumably in support of that allegation, her petition attached a copy of a 

March 6, 2022 letter from her sober living residence stating that Mother had 

followed all of its rules, including attendance at AA/NA meetings since her 

arrival on February 18, 2022.8 However, given the fact that Mother had 

recently presented evidence at the February 18, 2022 hearing that she had 

been sober since June 3, 2021, her section 388 petition’s allegation that she 

had, in effect, continued to remain sober during the three-week period since 

the February 18 orders cannot reasonably support a finding that there had 

been a “substantial” change in her sobriety during that three-week period. 

Second, Mother’s section 388 petition alleged that she had 

maintained regular and consistent visits with the children despite 

“hurdles” set forth by the Agency’s social worker. However, evidence was 

presented at the prior February 2022 hearing that Mother had regularly 

visited with the children. In its status review report for the February 2022 

hearing, the Agency stated that the Mother had been consistent with her 

supervised visitation with the children three-to-four times a week. 

Although the Agency’s addendum report for that hearing stated Mother 

had not been consistent with her two-hour long, unsupervised visits with 

8 Mother’s section 388 petition also attached a copy of a February 10, 

2022 letter from her outpatient drug treatment program regarding her 

progress and sobriety. However, because that letter had previously been 

admitted in evidence and considered by the juvenile court at the February 

2022 hearing, it could not constitute a change in circumstance or new 

evidence since the February 18, 2022 orders. 
22

the children in the Agency’s office twice a week, it noted that Mother had 

been unable to attend two visits in January 2022 because of her work 

schedule. At the February 2022 hearing, the children’s current caregiver 

testified that Mother had two visits per week with the children and had 

cancelled visits only because of work conflicts. Given the fact that evidence 

was admitted during the February 2022 hearing that Mother had attended 

two visits per week with the children except when her work schedule 

precluded certain visits, her section 388 petition’s allegation that she 

maintained her regular and consistent visits with the children during the 

three-week period since the February 18 orders cannot reasonably support 

a finding that there had been a “substantial” change in her visitation with 

the children during that three-week period. 

Third, Mother’s section 388 petition alleged that the children were 

extremely bonded with her. However, she did not allege the children were 

not extremely bonded with her prior to, or at the time of, the February 18, 

2022 orders, and had only become extremely bonded with her during the 

three-week period after the February 18, 2022 orders. On the contrary, the 

juvenile court expressly stated at the February 18, 2022 hearing that Mother 

“definitely has a bond with the [children].”9 Accordingly, her section 388 

petition’s conclusory allegation that the children had, in effect, become 

extremely bonded to her during the three-week period since the February 18 

orders cannot reasonably support a finding that there had been a 

“substantial” change in the children’s bonding since those orders. 

Fourth, Mother’s section 388 petition alleged that she had enrolled in 

9 The record also shows that in its January 2020 12-month review report, 

the Agency stated the children were very bonded with Mother. 
23

domestic violence classes. In support of that allegation, her petition 

attached a letter from her domestic violence program, stating that Mother 

had enrolled in classes on February 28, 2022. Given the fact that Mother’s 

reunification services had previously been terminated and she no longer 

lived with, or had a relationship with Father, her petition’s allegation that 

she had enrolled in domestic violence classes a mere 10 days before she 

filed her petition cannot reasonably support a finding that there had been 

a “substantial” change in circumstances in support of her petition. 

Fifth, Mother’s section 388 petition alleged that the juvenile court’s 

February 18, 2022 orders placing the children with Father in Mexico would 

severely prevent or limit her ability to have in-person visits with them.

However, that allegation wholly fails to allege there had been a change in 

circumstances since the February 18, 2022 orders. Rather, that allegation 

simply complains about the effect of the February 18, 2022 orders and not 

that there had been a change in circumstances since the February 18, 2022 

orders. Therefore, that allegation cannot reasonably support a finding that 

there had been a “substantial” change in circumstances in support of her 

petition. 

Finally, Mother’s petition alleged that the Agency did not have a 

plan for the children’s ongoing visitation with their maternal relatives.

Again, that allegation did not allege any change in circumstances since the 

February 18, 2022 orders. Rather, it presumably alleged that the Agency 

did not have a plan for maternal relative visitation at the time of the 

February 18, 2022 orders placing the children with Father in Mexico and 

that, three weeks later, the Agency still did not have such a plan. 

Accordingly, contrary to Mother’s assertion, her petition’s allegation, in 

effect, alleged that there had been no change in circumstances regarding 
24

the children’s visitation with the maternal relatives. Therefore, that 

allegation cannot reasonably support a finding that there had been a 

“substantial” change in circumstances in support of her petition. 

Because none of the allegations in Mother’s section 388 petition, even if

supported by credible evidence at an evidentiary hearing, would sustain a 

favorable decision on her petition, the juvenile court correctly concluded that 

Mother had not made a prima facie showing of changed circumstances in 

support of her petition. (Zachary G., supra, 77 Cal.App.4th at p. 806.) 

Accordingly, we conclude the court did not abuse its discretion by summarily 
25

denying her section 388 petition.10 (Angel B., supra, 97 Cal.App.4th at 

p. 460; Zachary G., at p. 808.) 

C

Because we conclude Mother’s section 388 petition did not make a 

prima facie showing of a substantial change in circumstances or new evidence 

since the February 18, 2022 orders, we need not, and do not, address the 

question of whether her section 388 petition also failed to make a prima facie 

showing that her requested modified orders were in the children’s best 

interests. Even if we were to address that question, we believe it is highly 

unlikely that her petition made a prima facie showing that the requested 

orders placing the children with her, rather than Father, would be in the 

children’s best interests. At most, that allegation was wholly conclusory and 

10 To the extent Mother argues on appeal that her section 388 petition 

also alleged a change in circumstances in that she had secured a safe and 

stable residence since the February 18, 2022 orders, Mother does not cite in 

her opening brief any actual language in her section 388 petition making 

such an allegation. In particular, item 7 of her section 388 petition, in which 

Mother sets forth “[w]hat has happened since [the February 18, 2022] 

order[s],” wholly omits any allegation that Mother had obtained a safe and 

stable residence for the children. Even assuming arguendo that Mother’s 

attachment of the March 6, 2022 letter from her sober living residence could 

be construed as impliedly making such an allegation, we would conclude that 

the letter did not make a prima facie showing of a “substantial” change in 

circumstances since the February 18, 2022 orders and, in any event, showed, 

at most, “changing,” rather than “changed,” circumstances. (Ernesto R., 

supra, 230 Cal.App.4th at p. 223; Casey D., supra, 70 Cal.App.4th at p. 47; 

Alayah J., supra, 9 Cal.App.5th at p. 482.) 

Likewise, to the extent Mother argues on appeal that her section 388 

petition also alleged a change in circumstances in that the Agency had 

substantially altered its transition plan for the children since the February 

18, 2022 orders, Mother does not cite in her opening brief any actual 

language in her section 388 petition making such an allegation. Absent any 

such allegation in her section 388 petition, we need not, and do not, address

that argument. 
26

the juvenile court, considering the entire record of the children’s dependency 

cases, reasonably could find that Mother had not made a prima facie showing 

that her requested placement orders would be in the children’s best 

interests.11 

DISPOSITION

The March 10, 2022 orders are affirmed. 

O’ROURKE, J.

WE CONCUR:

HALLER, Acting P. J.

DATO, J.

11 Because at the March 10, 2022 hearing the juvenile court ordered that 

Mother be allowed overnight visits with the children until their placement 

with Father in Mexico and every 90 days thereafter, we also need not, and do 

not, address her petition’s alternative requested modified orders granting her 

overnight visits.