1

Filed 5/15/23 In re R.Y. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re R.Y., a Person Coming Under the 

Juvenile Court Law.

SAN BERNARDINO COUNTY 

CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

C.H.,

Defendant and Appellant.

E080337

(Super.Ct.No. J280734)

OPINION

APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, 

Judge. Affirmed. 

Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Tom Bunton, County Counsel, and Kaleigh Ragon, Deputy County Counsel, for 

Plaintiff and Respondent.
2

Defendant and appellant, C.H. (mother), filed a Welfare and institutions Code 

section 388 petition,1 which the juvenile court denied. On appeal, mother contends the 

court erred in denying her petition without holding an evidentiary hearing. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND2

On April 5, 2019, personnel from plaintiff and respondent, the San Bernardino 

County Children and Family Services (the department), received a referral alleging 

physical abuse by mother and J.K. (boyfriend, collectively, the parents) to H.H. (born 

Nov. 2005), general neglect by mother to R.Y. (minor, born Feb. 2007) and H.H., 

emotional abuse by mother to all the children, and emotional abuse by boyfriend to P.K.3 

Boyfriend was alleged to be a chronic opioid user due to a back injury. He had stated on 

multiple occasions that he wanted H.H. out of the house, and that H.H. was ruining their 

family. The parents acknowledged that boyfriend had been trying to get H.H. arrested for 

the past one-and-a-half years so that H.H. would be out of the house and the parents 

would no longer be responsible for him.

H.H. said he was locked in his room “fulltime.” He said that as part of his 

punishment, the parents did not send him to school. He reported sleeping on the floor 

1 All further statutory references are to the Welfare and Intuitions Code unless 

otherwise stated.

2

 By order dated December 23, 2022, we incorporated the record in In re R.Y., 

case No. E078949, from mother’s appeal of the court’s order placing minor with the 

maternal aunt in Arizona. The case was dismissed on September 27, 2022.

3

 Boyfriend was the biological father of P.K. only. He is not a party to the appeal.
3

with a jacket and blanket. H.H. said he had no heat in his room. He reported being 

physically abused but would not provide examples due to fear of being punished.

On April 9, 2019, department personnel received another referral reporting that 

H.H. and minor were being locked in their rooms; the windows were also locked so that 

they could not get out. The reporting party said that H.H. stole parent’s credit card; 

boyfriend then “choked him out.” The reporting party said the parents were “hurting 

[H.H.] and leaving marks on him and will not send him to school because they do not 

want the school to see the marks.” The reporting party said boyfriend “choked out” 

mother, possibly in front of the children.

Department personnel had previously opened a voluntary maintenance plan with 

the parents and the children on May 21, 2014. The court had detained the children from 

parents on January 12, 2015, for general neglect. The case was closed on September 30, 

2016. On May 13, 2013, a court had previously terminated the parental rights of N.P., 

the biological father of H.H. and minor, as to three of their half siblings, and a fourth half 

sibling on May 5, 2014.4

On April 18, 2019, the social worker interviewed H.H. at school. H.H. said he did 

not want to get mother in trouble: “‘It’s my dad. My dad said if I tell I would be a ward 

of the state.’”5 H.H. said he was now locked in his room all day and had only a blanket 

4

 N.P.’s whereabouts were unknown; he never participated in the case.

5

 H.H. and minor would sometimes refer to boyfriend as their father even though 

he was not their biological father and the parents were not married.
4

for a bed. He said “‘my dad hits me and chokes me out and one time I even los[t]

consciousness.’” H.H. reported that “‘most of the time when my dad hits me or chokes 

me, it is behind the door and away from the camera.’”6 “[O]n the rare occasion when his 

mother ha[d] observed [boyfriend] hitting or choking him she would jump on [boyfriend] 

and try to stop him.” The last time boyfriend choked H.H. out was approximately two 

months earlier.

H.H. reported that boyfriend hits him with boyfriend’s fist, sometimes with one 

knuckle out, which would leave a lump on H.H.’s head. H.H. demonstrated how 

boyfriend would choke him by placing one arm around the front of his neck as in a 

headlock. H.H. said boyfriend also choked mother out four or five times. He said 

boyfriend also hit minor, but boyfriend never hit P.K. H.H. was afraid of what would 

happen if parents found out he had spoken with the social worker.

On April 18, 2019, the social worker went to the parents’ home. Mother said she 

would let H.H. out of his room “‘sometimes.’” She said she kept H.H. locked in his room 

because he had stolen her credit card information and the department did not help her 

with his behavioral problems. The social worker said the school, the department, the 

Department of Behavioral Health, and medical doctors had offered the family multiple 

services. The children received services at school; parents refused in-home services and 

had not participated in any services themselves. Mother declined medication for the 

children because she believed it was poison.

6

 The parents kept a camera facing H.H.’s bedroom door.
5

Mother denied boyfriend would hit H.H. She said H.H. would lie. H.H. was 

found in a dark, locked room with a camera facing the door. His room had dirty, stained 

carpeting and a single blanket. The windows appeared to be locked from the outside. 

Minor’s room had a mat with blankets and a pillow on a concrete floor. There were no 

working lights in either room.

P.K.’s room “appeared considerably different as it consisted of carpeting, a box 

spring and mattress with blankets and pillow,” furniture, and a light. P.K. said minor and 

H.H. would lie about parents. He reported that he had missed a lot of school.

Boyfriend had a criminal history which included corporal injury to a spouse, 

kidnapping, grand theft, criminal threats, and burglary. Department personnel took the 

children into protective custody.

On April 22, 2019, department personnel filed a section 300 juvenile dependency 

petition alleging, as to mother and minor, that mother knew or reasonably should have 

known that boyfriend was physically abusing H.H. and minor (a-1); that mother knew or 

reasonably should have known that boyfriend was physically abusing H.H. and minor, 

placing minor at risk of abuse (b-2); that mother failed to provide psychiatric care for 

H.H. and minor (b-3); that mother failed to provide for the children with adequate living 

conditions (b-4); that mother failed to provide for the children’s educational needs (b-5); 

that mother knew or reasonably should have known that boyfriend was abusing 

substances placing minor at risk (b-6); and that a voluntary maintenance case had 
6

previously been opened and closed, yet the children remained at risk of the same issues 

(j-9). On April 23, 2019, the juvenile court detained the children. 

In the May 10, 2019, jurisdiction and disposition report, the social worker reported 

she had called the parents on four occasions but was unable to leave a voicemail. On 

April 30, 2019, the social worker spoke with H.H. who said mother knew boyfriend 

“‘choked me out.’” He said boyfriend also choked out minor twice and mother “too.” 

H.H. said he was not taking his medication because the parents did not feel like making 

appointments to take him to the doctor. Boyfriend reported he had a back injury for 

which he took opiates. The social worker noted that 51 referrals had been made on the 

household since June 2010. On June 24, 2019, department personnel amended the 

petition to add allegations that mother and boyfriend had engaged in domestic violence in 

front of the children, that mother had allowed minor to be subjected to multiple acts of 

cruelty by boyfriend, and that mother had performed acts of cruelty to minor.

In a first addendum report filed June 25, 2019, the social worker recommended the 

court deny the parents reunification services pursuant to section 361.5, subdivision (b)(6) 

(severe physical harm to the child or a sibling). The parents declined to be interviewed 

without counsel present. The maternal uncle reported that boyfriend had held a gun to 

H.H.’s head when H.H. was three years old. He reported that boyfriend had also 

previously held a gun to mother’s head and made her get in the car and leave. An officer 

had arrested boyfriend and he spent time in jail. Boyfriend reportedly attempted to 

commit suicide by hanging himself in the closet. An officer confirmed being called to 
7

the home when boyfriend had tried to hang himself. Records from prior cases reflected 

that both minor and H.H. had been prescribed psychotropic drugs. H.H. refused to visit 

either mother or boyfriend.

Mother had had one supervised visit with minor. After the visit, minor refused 

visits with the maternal aunt. 

In an evidentiary interview, H.H. reported being locked in his room for prolonged 

periods of time. All he had was a blanket. He slept on the ground and was cold all the 

time except in summer. He said he was often thirsty as he was only allotted half a cup of 

water a day. He said he once went five days without eating. He was only allowed to 

sponge bathe outside; sometimes when boyfriend was gone, mother would allow him to 

shower. He once went three weeks without a sponge bath or shower. 

H.H. described his life as “‘miserable.’” Boyfriend told him multiple times 

boyfriend would kill him. Boyfriend choked him to unconsciousness on multiple 

occasions. Boyfriend hit him multiple times in the head leaving bumps. On one 

occasion, he heard boyfriend choking minor. H.H. said mother told him boyfriend had 

choked mother. In another interview he reported he was 11 when boyfriend attempted 

suicide by hanging himself with a necktie. H.H. said he repeatedly tried to hang himself 

like boyfriend. H.H. reported that his biological father touched his penis over his clothes 

and touched minor’s vagina over her clothing.

On July 20, 2020, department personnel filed a second amended petition to add 

allegations that mother failed to ensure minor’s psychiatric needs due to her prior sexual 
8

abuse and that mother failed to protect minor from sexual abuse. The maternal aunt, who 

lived in Arizona, had requested placement of H.H. and minor; the department requested 

placement pursuant to the Interstate Compact on the Placement of Children (ICPC).

At the hearing on July 10, 2019, counsel for the department requested that 

visitation “be found detrimental and suspended.” P.K. was purportedly being coached by 

mother. After visits with minor, there were issues with her behavior. Boyfriend’s 

counsel noted, “The parents . . . have gone months without seeing their children, which is 

totally inappropriate.”

Mother’s counsel observed, “It’s my understanding that the visitation started very 

late in the process. I think at this point it would probably be more appropriate to 

admonish the parents and warn them what would happen if they continue to behave in 

this regard as far as visitation. It’s my understanding that both kids, [minor] and [P.K.], 

do want to see their mother, and it was represented to me that [H.H.], when . . . Mom 

attempted to visit him, she was told he was not receiving any visitation from either 

parent. So I don’t know if this report is accurate as to the⸺how it helps what has been 

going on with the attempts of visitation in this case.” 

The court found mother’s behavior “unacceptable.” “The one thing I can do is 

order an immediate stoppage of the visit and no further visits if there is any behavior that 

has occurred, such as coaching, passing notes, whispering. If that occurs, I’m giving 

absolute authority to the Department to stop that visit, and then not allow any further 

visits.” However, the court ordered visitation between the children and visits between the 
9

children and the parents to occur once weekly for two hours; they were to be “closely 

monitored.”

In a September 16, 2019, additional information to the court report, the social 

worker noted that visits had occurred between the parents and the children. The social 

worker noted that mother had initially been referred for services on June 10, 2019; staff 

had attempted to arrange services for her on three occasions; however, mother was not 

yet in counseling. The social worker issued another request for services on September 9, 

2019. H.H. said he did not want to go home to mother; he wanted to live with the 

maternal aunt.

In a November 4, 2019, addendum report, the social worker recommended minor 

be removed from mother and that mother not be provided reunification services. The 

social worker noted she had obtained the children’s school records and there were 

significant unexcused absences. Personnel from minor’s group home had given the 

social worker a notice to move her after an incident wherein minor struck one of the staff 

members saying boyfriend “‘does it to her mom, so why can’t she?’” Minor was placed 

in a behavioral health facility; personnel from the group home refused to take her back. 

After visits with mother, minor became “extremely aggressive[.]”

Mother was scheduled to have a visit with minor on June 30, 2019; however, it 

was cancelled due to minor’s behavior. Mother and boyfriend visited with the children 

on July 10, 2019. Mother visited with minor on August 18, 2019. Minor said she liked 
10

visiting with mother. “The mother has been engaged in setting up visits. She sets limits 

well, has a positive disposition with her younger children.” 

Mother asked for more visitation. The social worker told her “no additional visits 

were being recommended until she benefitted from services.” The social worker wrote 

that they would have considered recommending mother for reunification services if she 

had “applied herself and could describe what abusive behavior looks like versus healthy 

behavior, if she left [boyfriend] [who] has abused her on and off since the start of her 

relationship and then abused her children, if she were remorseful over allowing 

[boyfriend] to abuse the children . . . .”

In a November 18, 2019, third addendum report, the social worker indicated she 

had no additional information regarding mother’s participation in any services.7 “The 

children deserve permanency and the mother previously received services for herself and 

the children while she was living with” boyfriend.

In a fourth addendum report filed January 14, 2020, the social worker reported that 

on November 24, 2019, the parents were involved in a domestic violence incident at 

boyfriend’s residence for which boyfriend was arrested. On December 17, 2019, 

defendant pled no contest to misdemeanor battery on a cohabitant (Pen. Code, § 243, 

subd. (e)(1)) and was sentenced to 60 days in jail. A court issued a three-year criminal 

protective order prohibiting father from having contact with mother. 

7 However, although predating the prior report, attached to the report was a 

progress report for a parenting program dated September 10, 2019, which reflected that 

mother had attended 10 of 12 ordered sessions, had not missed any sessions, and her 

participation was deemed satisfactory.
11

Mother had eight visits with minor during the reporting period. Mother and minor 

bonded during visits. However, one supervising staff member noted that mother had 

difficulty setting limits for minor, such as offering to buy her dessert before eating her 

meal, giving her money, and giving her all of the toys she requested.

In a June 15, 2020, additional information to the court report, the social worker 

reported that boyfriend had committed suicide on May 22, 2020. After services for 

boyfriend, “the children were able to spend about [three] hours with their mother in a 

supervised setting that included lunch.” The maternal aunt spoke with minor during the 

visit. Minor did not ask to visit with the maternal aunt. Minor was in custody at a 

juvenile facility for felony assault. The social worker recommended minor be placed 

with the maternal aunt in a planned permanent living arrangement with her sibling, H.H. 

In an additional information to the court filed October 16, 2020, the social worker 

reported mother had completed individual therapy, a domestic violence class, and a 

parenting class. Mother’s therapist requested that she reenroll for further sessions; 

however, mother failed to reenroll. A progress note from mother’s parenting class noted 

that mother’s comments did not indicate an understanding of the material; the instructor 

recommended that mother continue individual treatment; however, mother did not do so.

At a hearing on December 7, 2020, it appeared the parties had come to an 

agreement pursuant to which mother, as to minor, would not contest jurisdiction, and the 

department would recommend mother have six months of services, with four hours of 
12

supervised visitations. However, after mother’s reluctance to accept the offer, counsel 

for the department withdrew it.8

At the contested, combined jurisdiction and disposition hearing on March 1 and 2, 

2021, mother testified that H.H. had made false allegations that boyfriend was choking 

people in the house. H.H. was a liar. Boyfriend never choked mother, nor did she ever 

say that he had. Mother did not believe boyfriend had physically abused any of the 

children.

Parents began locking H.H. in his room at night from 8:00 p.m. until the morning 

at the age of five to keep him from molesting minor. They had caught H.H. doing “stuff 

that was really mind-blowing and disturbing.” “He was having intercourse with his sister 

and trying to convince her that they were going to get married and run away together.” 

From the age of four “he was trying to insert his penis into her[.]” H.H. and minor “were 

acting out sexually inappropriately and also had aggressive, destructive behaviors.” 

“They were smearing feces on the wall. They were eating their feces. They were 

destroying property and aggressive towards others.” 

H.H. slept on a mat with a blanket and pillow in his room with no electricity. H.H. 

did not have a bed for four months because he broke the frame; but he still had a mattress 

and box spring. He did not have any bathroom facilities in his room. He had broken all 

8

 The long delay between the detention and jurisdiction hearings was due, in part, 

to repeated conflicts declared between mother and her counsels, which required

continuances to allow newly appointed counsel to prepare for a contested jurisdictional 

hearing. At one point, counsel for the department objected to the repeated continuances: 

“I think this is, perhaps, the fifth attorney the mother has had . . . .” Additional 

continuances were due to COVID-19 protocols.
13

the lightbulbs in his room. The electricity had not been working in his room for at least a 

couple months. H.H. was always able to open his windows. He could not open his 

window. H.H. was allowed to bathe in the house daily.

They also locked minor in her room: “A couple times she had tried running away, 

and one of the times she had said that she was going to marry her brother, and they were 

going to live happily ever after. Another time she didn’t really have a reason or rhyme. 

She just took off and went to my neighbor’s house, and then from there, took off down 

the street . . . .” “Because she would sneak out of her room, and we had mountain lions, 

bears, and bob cats that lived up and surrounded us around our property, and it was 

extremely dangerous. Besides, I was worried about her getting picked up by a stranger.” 

They would lock her in her room whenever she had an outburst or they had to separate 

the children. 

There was no light, electricity, or lightbulbs in minor’s room in April 2019. There 

was a mattress in her room. There was no carpeting in her room. There was no heat in 

either H.H. or minor’s rooms. P.K. had a box spring, mattress, electricity, a lamp, and a 

nightstand in his room. 

The children did not go to school when parents had doctors’ appointments, which 

occurred “definitely more than twice a week.”9 H.H. had not gone to school for three 

weeks before being taken into protective custody. There were incidents of domestic 

9 Mother wore prosthetics below the knees of both her legs. Mother was paid as a 

caregiver for boyfriend and minor.
14

violence between parents, but not in front of the children; boyfriend was twice arrested 

for domestic violence.

Prior to the instant proceedings, service agencies evaluated and diagnosed H.H. 

and minor; agency personnel engaged with them in coaching, therapy, and counseling 

sessions at least three times weekly. They were placed on medications. At one point, 

both H.H. and minor had been sent to a group home. However, the services were 

terminated before they were complete; mother begged them not to close services. 

After services were terminated, mother was unable to obtain the children’s 

medications. She repeatedly requested help from county agencies.10 Mother told service 

agencies that she was locking H.H. and minor in their rooms: “I felt [ ] they said we were 

doing the best we could, and keep doing what we were told. That’s exactly what they 

were trying to tell me since that’s what we were there to address was the locks on the 

doors.” Parents were trying to have H.H. removed from their home due to his behavior.

Mother visited with minor in her group home two hours, once weekly. When 

asked if she had missed any visits, mother responded, “There was a time I was⸺they 

were getting switched around, and during those times, it made it really impossible to see 

her.” Mother gathered activities in preparation for her visits with minor. Minor called 

her “‘Mom.’” Minor was, “[v]ery happy” to see mother at visits. Mother loved her 

children “[w]ith [her] heart and soul.” 

10 An acquaintance of mother testified that mother had reached out to the 

department numerous times for assistance.
15

Mother had engaged in several services, including parenting classes which “has 

given me a lot of⸺it has given me confidence, and I acquired a lot of skills to improve 

my relationship with my children.” “I’ve learned to sit and be a good listener. I’ve 

learned to help them be able to work through whatever situations they have with them 

being able to be calm and not have their outbursts.” 

During mother’s testimony, the court observed of her repeated insistence on 

answering questions not asked of her, “It makes it look like you’re trying to hide 

something or tailor something. It affects your credibility whenever you do that. So you 

can⸺you’re not going to do that anymore, and if you do it, you have to understand the 

effect it has on the trier of fact. That it calls my attention to something that maybe my 

attention wouldn’t necessarily be⸺necessarily on. So that’s at your own peril when you 

do that. I’m trying to explain to you, and all counsel, when a witness tries to do that, it is 

definitely a red flag as to credibility.” 

A social worker with the Department of Aging and Adult Services testified that his 

job consisted of assessing clients’ physical and mental abilities and the areas in which 

they need help with their daily activities. Boyfriend and minor were his clients between 

2016 and 2019. He visited parents’ home twice a year. In 2018, minor’s room “was 

bare. It had no carpet. It had a pillow and a blanket on the floor, which I was⸺it was 

reported to me was used to sleep on. The window was shut to where it could only open 

one inch, and that was done because she reportedly attempted to throw her mattress out of 

the window, so she couldn’t escape.” He made a referral to the department.
16

Minor had been removed in 2019 because it had been reported, “That she would 

physically harm herself, pulling out her hair. She would try to run away from the home.

She would hit herself.” It was reported minor had been sexually abused by her biological 

father.

After testimony, the court noted, “Mother certainly paints a different picture than 

what the reports say. And I don’t believe the picture that she has painted. I think she is 

still either in denial or is being deceitful when she testifies about certain things or, at 

least, minimizing to a great extent. Certainly shifting blame.” “I think that is part of how 

[mother] survives mentally, maybe, is to shift the guilt and blame to somebody else.” 

The court sustained the allegations pertaining to minor,11 and removed her from 

mother’s custody. “And for the [section] [361.5, subdivision] (b)6 bypass, I would agree 

with the Department’s assertion that in this instance the several years of locking the 

children, especially in the state they were found in the day of removal, when they were 

left at least five hours alone, locked in a room before [father] and [mother] came home, 

you know, I think that is indicative of what was always happening.” “And so I think that 

was definitely cruel to where the children had to soil themselves or scream to be allowed 

to go to the bathroom, not have access to food like was needed. In an emergency 

11 The court indicated that it had previously dismissed the allegations that minor’s 

biological father had sexually abused her, and that mother failed to protect her from such 

abuse. However, there is nothing in the record to support that statement other than the 

court’s statement itself. The minute order for the date the court made the statement 

reflects the court dismissed those allegations that day.
17

situation, had there been a fire or a flood, they would not have been able to get out of that 

situation.”

“I believe the facts as presented by [H.H.], and I do believe he was choked out to 

the point of unconsciousness as stated. I believe all of the things that he has reported in 

those papers, over Mother’s assertions. Mother’s assertions, again, have been selfserving, and only at some point when she was forced to talk about [domestic violence] 

did she start to admit that.” “I do not believe [boyfriend’s] death removes Mother’s risk 

to the children. Mother is clearly a risk to the children by her parenting styles and by 

allowing [boyfriend]⸺and, frankly, I think she was a part of it. So, you know, doing the 

locks and all of that, there’s no doubt in my mind that this is severe physical abuse.” 

The court denied mother reunification services and set the section 366.26 hearing. 

The court set visitation as one hour monthly. The court authorized assessment of the 

maternal aunt pursuant to ICPC requirements. 

In the August 24, 2021, status review report, the social worker recommended a 

“permanent plan of PPLA, with a fit and willing relative . . . .” The social worker noted 

that approval of the ICPC to place minor with the maternal aunt was still pending. Minor 

had had several placement changes. She was placed in her then current placement on 

August 6, 2021. Mother had visited via Zoom, once monthly, which minor reported went 

“really well.” “During this reporting period [minor] remains hopeful that she will be 

placed with her maternal aunt as she has expressed often she would like to live with her 

maternal aunt in Arizona. She reports that she is excited with the idea[ ] of having the 
18

opportunity to live like a regular teen with her aunt and cousin. She reports that her visits 

with her mother, [ ] are going well and she looks forward to visiting with her mother.”

At the hearing on September 3, 2021, the court adopted the department’s proposed 

findings and orders that minor’s current placement and a permanent plan of placement 

with a relative was appropriate. On February 15, 2022, the court granted mother’s 

counsel’s motion to be relieved as counsel. 

In the February 25, 2022, status review report, the social worker noted that the 

ICPC approval was still pending. Mother had continued to visit with minor once monthly 

on Zoom. Minor again reported “that her visits with her mother are going really well.” 

“On July 4, 2021, [minor] had a visitation with her maternal aunt and cousin. On 

January 17, 2022, the mother . . . visited with the child [ ] at the placement.” Minor 

remained “hopeful that she will be placed with her maternal aunt as she has expressed 

often she would like to live with her maternal aunt in Arizona. She reports that she is 

excited with the idea[ ] of having the opportunity to live like a regular teen with her aunt 

and cousin. She reports that her visits with her mother, [ ] are going well.” The court 

found minor’s placement appropriate and continued to grant authority to place minor with 

the maternal aunt once approved pursuant to the ICPC.

In a March 17, 2022, additional information for the court, the social worker 

reported that the maternal aunt had been approved for placement. Minor was removed 

from her placement and placed with the maternal aunt on March 12, 2022. The maternal 

aunt reported that minor was adjusting well to the home. 
19

At the hearing on March 25, 2022, mother’s counsel objected to the placement. 

Minor’s counsel agreed to the placement. The court approved the placement with the 

maternal aunt. The court ordered supervised, in person visits once monthly for two hours 

in Arizona; the court also ordered additional telephone and video visits.

Mother’s counsel filed an appeal on behalf of mother from the order placing minor 

with the maternal aunt. Mother’s appellate counsel filed a brief pursuant to In re Sade C.

(1996) 13 Cal.4th 952, raising no issues and requesting this court to independently review 

the record for error. This court dismissed the appeal as abandoned. 

In a status review report filed on September 7, 2022, the social worker 

recommended the court set a section 366.26 hearing and order adoption as the permanent 

plan. In the maternal aunt’s home, minor had “access to all other maternal relatives.” 

Minor received phone calls from her brother, H.H. The maternal aunt reported minor 

was “doing very well” in the placement; she was attending school every day without 

incident.

Mother continued to visit with minor once monthly for two hours. The maternal 

aunt reported that mother continued to purchase minor whatever she wanted; minor 

would ask for things because she knew mother would buy them immediately. “Once they 

are received . . . [minor] places the things in a corner and doesn’t use the items and it 

adds to [minor’s] tendency to hoard.” Mother would tell minor that mother intended to 

get custody of minor back; mother would also bring up the boyfriend whom she would 

represent as “a good guy.” Minor had “no overwhelming reaction to saying hello or 
20

goodbye to her mother. When it is time to end the visits, [minor] will get in the car and 

say let’s go. [Mother] is the one [who] tries to prolong goodbyes after a visit.”

Minor had been placed in 13 prior placements. Her “behaviors ranged from 

oppositional, defiant, cussing[,] and temper tantrums. Since she has been placed with her 

maternal aunt, . . . the majority of her behaviors have lessened.” The maternal aunt was 

“committed to caring for [minor] to the level of adoption and wants to move forward with 

the process of adoption.”

In an October 27, 2022, additional information for the court, the maternal aunt 

reported minor was “doing well in the home.” Mother last visited with minor on 

October 7, 2022, at the county fair. The visit went “very well.” However, the maternal 

aunt reported that mother continued to purchase items at minor’s request which minor left 

unopened and unused in a corner of her room. One of minor’s teachers reported that 

minor had “made amazing progress.”

On November 7, 2022, mother filed a section 388 petition seeking to change the 

court’s order of once monthly, two-hour, supervised visitation, to three times monthly, 

four-hour, unsupervised visitation.12 Mother alleged as changed circumstances that she 

had consistently visited minor, minor had responded to mother positively, and minor 

enjoyed the time spent with mother during visits. Mother alleged the change would be in 

the best interest of minor because minor had communicated with mother with emojis 

12 In the alternative, mother requested increased “supervised visits to three times 

per month for up to four hours” or, increased “supervised visits to twice per month for up 

to four hours . . . .”
21

reading “‘love you’” and “‘miss you.’” Mother also asserted the change would be in 

minor’s best interest because minor was bonded with mother and would benefit from 

increased time with her. 

At the hearing on November 8, 2022, mother’s counsel indicated he “ha[d] an 

un[a]voidable conflict and a breakdown of attorney-client relationship, so I would ask the 

Court grant new counsel for the mother.” The court appointed new counsel for mother.

Counsel for the department asked, “the Court to dismiss the mother’s [section] 388 

[petition] as it does not meet even prima facie levels of proof.” The court responded, 

“Well, tell me why⸺because, I mean I looked at it . . . and I was looking at the best 

interest and all of that. [¶] Can you explain to me why it doesn’t meet⸺it sounds like 

they’re having positive visits, so if you can explain to me why it doesn’t meet prima 

facie, which is a very low level?” 

Counsel for the department responded, “At this point, your Honor, we are going to 

be going to a [section] [366].26 [hearing]. The mother is already getting extended visits, 

5 to 6 hours, instead of 2, but I would note there really isn’t [a] change of circumstances. 

The mother’s behavior at this point does not meet the prima facie level for change of 

circumstances. [¶] As outlined in the [section] [366].26 report, she continues to try to 

pressure the minor to move back home. She brings up the [boyfriend] in conversation 

stating he loves her and tries to bring up memories for the minor. The minor has no 

reaction to the visits ending with the mother, even though the mother tries to prolong 

those goodbyes. The mother continues to buy the minor whatever she wants despite the 
22

concerns regarding the minor’s hoarding tendencies. [¶] Ultimately, it doesn’t meet best 

interest either as the child is doing very well in school. She has an IEP. She is attending 

therapy, and she is stabilizing. Any unsupervised visitation with the mother would be, in 

my opinion, a threat to the minor’s stability and potentially her safety as well, given the 

mother’s lack of boundaries and ability to be appropriate.”

Mother’s counsel argued, “I don’t see any kind of detriment or any harm to the 

child, other than the gifts . . . but I think the[ ] [visits] are going well, and I think it is in 

the best interest of the child to have Mom spend more time. She does travel all the way 

to Arizona to make these happen, and she has been very consistent, even with that 

obstacle in the way, and the minor seems to be bonded with the mom. She misses her. 

She does enjoy being visited by her mom, and so that’s why we’re asking for more 

frequent visits or longer visits.” 

Minor’s counsel objected to unsupervised visits noting, “minor is finally 

stabilizing in this case.” “Mother’s still making inappropriate statements to the child. 

And does she love her? I’m not objecting to that. I think she does, but I think we need to 

leave it as it is and let this minor continue to stabilize, and that’s what would be in her 

best interest.” The court noted it was “going to deny the prima facie [showing] for not 

[being] in the best interest on those grounds for all the reasons stated by County Counsel 

and Minor’s counsel, over Mom’s objection.”
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II. DISCUSSION

Mother contends the court abused its discretion in denying her petition without 

holding an evidentiary hearing. We disagree. 

“To prevail on a section 388 petition, the moving party must establish that (1) new 

evidence or changed circumstances exist, and (2) the proposed change would promote the 

best interests of the child.” (In re J.T. (2014) 228 Cal.App.4th 953, 965.) “Under 

section 388, a party ‘need only make a prima facie showing to trigger the right to proceed 

by way of a full hearing.’ [Citation.] The prima facie showing is not met unless the facts 

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

decision on the petition. [Citation.] In determining whether the petition makes the 

necessary showing, the court may consider the entire factual and procedural history of the 

case. [Citation.] The petition must be liberally construed in favor of its sufficiency.” (In

re J.P. (2014) 229 Cal.App.4th 108, 127.) 

“Section 388 thus gives the court two choices: (1) summarily deny the petition or 

(2) hold a hearing.” (In re Lesly G. (2008) 162 Cal.App.4th 904, 912; contra, In re G.B. 

(2014) 227 Cal.App.4th 1147, 1158, fn. 5 [allowing argument on whether the mother had 

made a prima facie case in a § 388 petition “benefitted her by giving her the opportunity 

to establish a record supporting her request for an evidentiary hearing”].)

“The juvenile court may modify an order if a parent shows, by a preponderance of 

the evidence, changed circumstance or new evidence and that modification would 

promote the child’s best interests. [Citations.] This is determined by the seriousness of 
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the problem leading to the dependency and the reason for its continuation; the strength of 

the parent-child and child-caretaker bonds and the time the child has been in the system; 

and the nature of the change of circumstance, the ease by which it could be achieved, and 

the reason it did not occur sooner. [Citation.] After termination of services, the focus 

shifts from the parent’s custodial interest to the child’s need for permanency and stability. 

[Citation.] ‘Whether a previously made order should be modified rests within the 

dependency court’s discretion, and its determination will not be disturbed on appeal 

unless an abuse of discretion is clearly established.’ [Citation.] The denial of a section 

388 motion rarely merits reversal as an abuse of discretion.” (In re Amber M. (2002) 

103 Cal.App.4th 681, 685-686.) 

Even if the juvenile court errs in failing to hold an evidentiary hearing on a 

section 388 petition, that error will be held harmless unless there is a reasonable 

probability that in the absence of the error a result more favorable to the petitioner would 

have been reached. (In re J.P., supra, 229 Cal.App.4th at pp. 128-129 [harmless where 

juvenile court erroneously failed to hold a hearing on a § 388 petition]; In re G.B., supra, 

227 Cal.App.4th at p. 1162 [erroneous denial of hearing on second § 388 petition 

harmless where hearing was granted on first petition and where petitioner failed to 

identify additional evidence she would present at hearing]; In re Victoria C. (2002) 

100 Cal.App.4th 536, 544 [erroneous denial of hearing on § 388 petition harmless where 

juvenile court had considered evidence attached to petition in periodic review hearing].)
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First, we disagree with mother that the juvenile court denied her a hearing on her 

petition. The court and counsel discussed the merits of mother’s petition before the court 

denied it. Thus, the juvenile court permitted mother a de facto, if not a de jure, hearing 

on the merits of her petition.

Second, if mother wanted an evidentiary hearing on the petition, she should have 

objected to the court’s ruling on it without one. Mother’s counsel had ample opportunity 

at the hearing to request that mother testify or that she be permitted to produce additional 

evidence. Her failure to do so forfeited any error. (In re S.B. (2004) 32 Cal.4th 1287, 

1293 [a “reviewing court ordinarily will not consider a challenge to a ruling if an 

objection could have been but was not made in the trial court”], superseded by statute on 

other grounds as stated in In re S.J. (2008) 167 Cal.App.4th 953, 962.)

Third, mother failed to state a change in circumstances, let alone a substantial 

change in circumstances. The court did not previously reduce mother’s visits for any of 

the reasons she proposed as changed circumstances; rather, the court reduced mother’s 

visitation because it had denied her reunification services and, as such, it was appropriate 

to reduce visitation to stabilize minor in her placement. (In re N.F. (2021) 68 

Cal.App.5th 112, 120-121 [“The change in circumstances supporting a section 388 

petition must be material. [Citations.]”]; (In re S.R. (2009) 173 Cal.App.4th 864, 870 

[“‘The change[d] . . . circumstances must relate to the purpose of the order and be such 

that the modification of the prior order is appropriate.’”].) 
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Fourth, there was evidence that increasing visitation was not in minor’s best 

interest. Early on, after a visit with mother, minor refused visits with the maternal aunt. 

Minor had behavioral issues after some visits, including becoming “extremely 

aggressive.” Mother had difficulty setting limits for minor, giving her everything she 

wanted. Mother communicated with minor inappropriately, telling her that mother 

intended to get custody of minor back and representing the boyfriend as “a good guy.” 

Moreover, minor showed no real negative reaction to visits ending.

Fifth and finally, even if the court erred in failing to hold an evidentiary hearing on 

the petition, any error was harmless because “mother here wholly fails to identify 

additional evidence she would have presented at an evidentiary hearing that would have 

established” a change of circumstances and that increased visitation with her would have 

been in minor’s best interest. (In re G.B., supra, 227 Cal.App.4th at p. 1164.) The 

juvenile court acted within its discretion in denying the petition.

III. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

Acting P. J.

We concur:

MILLER

J.

FIELDS

J.