Filed 12/14/23 In re A.O. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re A.O., a Person Coming Under 

the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH 

AND HUMAN SERVICES 

AGENCY,

Plaintiff and Respondent,

v.

V.O.,

Defendant and Appellant.

 D082396

 (Super. Ct. No. J520790A)

APPEAL from an order of the Superior Court of San Diego County, 

Alexander M. Calero, Judge. Affirmed.

William D. Caldwell, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Claudia G. Silva, County Counsel, Lisa M. Maldonado and Eliza Molk, 

Deputy County Counsels, for Plaintiff and Respondent.

Almost 24 months after assuming emergency jurisdiction over A.O., the 

juvenile court terminated the parental rights of V.O. (Mother) over her then 
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three-year-old son at a contested Welfare and Institutions Code1 section 

366.26 hearing. Prior to the commencement of the hearing, the juvenile court 

denied Mother’s section 388 petition for additional reunification services

based on its belief that it lacked authority to grant the requested relief past 

the 24-month timeframe. 

Mother’s petition failed to make the threshold prima facie showing of 

changed circumstances or new evidence, and also failed to show that 

additional reunification services were in A.O.’s best interest. Any error in the 

court’s limited review of Mother’s petition was therefore harmless, and we 

affirm the June 26, 2023 order.

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

A.O. was brought into protective custody at the age of 18 months when

Mother was arrested at the Otay Port of Entry for transporting 

methamphetamine into the United States.2 The original section 300 petition 

was filed on A.O.’s behalf on July 2, 2021, and on July 6, 2021, the juvenile 

court appointed minor’s counsel and assumed temporary emergency 

jurisdiction pursuant to the Uniform Child Custody Jurisdiction and 

Enforcement Act (UCCJEA). On July 7, 2021, A.O. moved into a home with 

licensed foster parents J. and J. and has remained in their care.

Following a series of continuances, the juvenile court held a combined 

six- and 12-month review hearing on September 30, 2022. The testimony and 

1 All further statutory references are to the Welfare and Institutions 

Code unless otherwise indicated.

2 Law enforcement located over 100 pounds of methamphetamine hidden 

in Mother’s vehicle. A.O. was in the vehicle when it was stopped, and Mother 

admitted to transporting drugs into the United States with A.O. in the 

vehicle on at least two other occasions. 
3

evidence presented at that hearing revealed that while mother was living in 

Riverside County, she had limited and inconsistent in-person and virtual 

visitation with A.O. despite the caregivers’ and Agency’s efforts to facilitate 

those visits. During the visitation, A.O. was disconnected from the Mother

and did not display excitement or recognition when he saw her. 

Even after Mother moved to San Diego and supervised visitation was

scheduled twice per week, A.O. was resistant to going. The foster parent 

needed to lie to A.O. to get him to go , and Mother described him as “grumpy” 

during the visits A.O. engaged minimally with Mother and would 

consistently gravitate toward his foster parent for play, comfort and 

connection. The social worker assigned to the case testified that there was 

“no interaction, no affection, and no interest” between Mother and A.O.

At the conclusion of that hearing, the juvenile court terminated 

Mother’s court-mandated reunification services and set a section 366.26 

hearing to implement a permanent plan for A.O. In making its ruling, the 

court noted that the case came to the court’s attention as a result of Mother’s 

poor judgment in deciding to transport drugs for financial gain and 

highlighted that, a year into the proceeding, she was found intoxicated and 

asleep in her car while A.O.’s sibling was in the backseat with the windows 

rolled up in 90-degree weather.3 The court found, by clear and convincing 

evidence, that the return of the child to the custody of Mother would create a 

substantial risk of detriment to the child’s physical or emotional well-being

and that there was not a substantial probability that the child will be 

returned to the physical custody of Mother. 

3 According to the July 25, 2022 Addendum Report , Mother was arrested 

on July 21, 2022 and charged with felony child abuse for willful harm to a 

child in violation of Penal Code section 273a, subdivision (a).
4

On April 24, 2023, Mother’s counsel informed the court of his intent to 

file a section 388 petition, and the contested section 366.26 hearing was 

scheduled for June 26, 2023. On the morning of June 26, 2023, Mother filed 

her section 388 petition requesting that the court vacate the section 366.26 

hearing and resume reunification services for an additional six months, to 

coincide with services that had been ordered for A.O.’s sibling. Notably, 

Mother’s petition made no mention of her imminent incarceration (mother 

had been sentenced to one year in prison on May 8, 2023 on a charge not 

specified in the record before us and was scheduled to surrender to 

authorities on June 29, 2023). 

Prior to addressing Mother’s section 388 petition, the court inquired 

whether it was able to provide six more months of reunification services to 

Mother when, in just four days, it would be a full two years since A.O. had 

been initially detained. Mother’s attorney offered preliminary arguments in 

support of the petition and suggested the court could invoke its power under 

section 352 to continue the section 366.26 hearing and order additional 

reunification services. County counsel and minor’s counsel contended section 

352 could not properly be utilized at that juncture, and further argued that 

Mother failed to make a prima facie showing of changed circumstances or 

that additional reunification services were in A.O.’s best interest in light of 

her pending incarceration.

The juvenile court concluded it could not order additional reunification 

services past the two-year timeframe and effectively denied the petition:

We find ourselves at a different situation . . . . In 

four days, it will be two years since the date when [A.O.] 

was initially detained. 

I am of the opinion that [the] two-year period of time 

for providing reunification services is a hard stop[,] and the 
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court cannot provide reunification past that two-year 

timeframe. [¶] . . . [¶]

Because of that, the hard stop, the two-year period of 

time to provide reunification services, the court is not 

inclined to move forward on the 388 petition, despite the 

fact that there may be a change of circumstances. 

Based on that two-year timeframe to provide 

reunification services, the court is of the position that it 

cannot move forward on the 388 [petition].

 The court then proceeded with the section 366.26 hearing.4

Mother appeals from the court’s order on her section 388 petition and

the subsequent termination of her parental rights. 

DISCUSSION

A. The juvenile court had the authority to consider mother’s section 388 

petition

At the time of the contested section 366.26 permanency hearing, A.O.’s 

case had been pending for just under 24-months. Mother’s reunification 

services had previously been terminated, and the focus of A.O.’s case had 

shifted away from reunification to his needs for permanency and stability. 

(See In re Marilyn H. (1993) 5 Cal.4th 295, 309 (Marilyn H).) Nonetheless, 

Mother could “revive the reunification issue” by filing a section 3885 petition

for modification of the court’s prior order. (Marilyn H., supra, at p. 309.) 

4 The court rejected County Counsel’s invitation to make a determination 

as to whether Mother had made a prima facie showing of changed 

circumstances and remarked that it could do so if the matter was remanded 

following appellate review. 

5 Section 388 permits a parent to petition the juvenile court to change or 

set aside a prior order “upon grounds of change of circumstance or new 

evidence.” (§388, subd. (a)(1); see also Cal. Rules of Court, rule 5.570.)
6

A section 388 petition is an “escape mechanism” that is built into the 

dependency scheme to allow the court to consider new information even when 

the court is otherwise poised to implement a permanent plan in accordance 

with section 366.26. (Marilyn H., supra, 5 Cal.4th at p. 309.) “Sections

366.26 and 388, when construed together and with the legislative scheme as 

a whole, are reasonable and bear a substantial relation to the objective 

sought to be attained. The parent’s interest in having an opportunity to 

reunify with the child is balanced against the child's need for a stable, 

permanent home. The parent is given a reasonable period of time to reunify 

and, if unsuccessful, the child's interest in permanency and stability takes 

priority. Even after the focus has shifted from reunification, the scheme 

provides a means for the court to address a legitimate change of 

circumstances while protecting the child’s need for prompt resolution of his 

custody status. Thus, both substantive and procedural due process are 

satisfied.” (Marilyn H., supra, 5 Cal.4th at p. 309.) 

It is now well-established that a section 388 petition may be filed and 

heard at any time in an ongoing dependency case, up to and including the 

time scheduled for a section 366.26 hearing. (See Marilyn H, supra, 5 Cal.4th

at p. 309; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1416 (Jeremy W.); In re 

Hashem H. (1996) 45 Cal.App.4th 1791, 1801 (Hashem H.); In re Aljamie D. 

(2000) 84 Cal.App.4th 424, 434 (Aljamie D.); In re Lesly G. (2008) 162 

Cal.App.4th 904, 912-916.) A section 388 petition and the contested 366.26 

hearing may be scheduled concurrently, “so long as the section 388 petition is 

decided first.” (Jeremy W., supra, 3 Cal.App.4th at p. 1416, fn. 14). Mother’s 

filing of the petition on the same day as the previously scheduled section 

366.26 hearing did not alter the juvenile court’s obligation to first consider 
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and rule on Mother’s petition before proceeding to the section 366.26 hearing 

and disposition. (See Aljamie D., supra, at pp. 428, 434.)

B. A prima facie showing is required

Section 388, subdivision (a)(1) provides that a parent may petition the 

juvenile court “upon grounds of change of circumstance or new 

evidence . . . for a hearing to change, modify, or set aside any order of court 

previously made.” Although a section 388 petition is liberally construed in 

favor of granting a hearing (Marilyn H., supra, 5 Cal.4th at pp. 309-310),

unless petitioner makes a prima facie showing of changed circumstances or 

new evidence and that the minors’ best interests would be served by 

changing the juvenile court’s order, the court need not order a hearing. (In re

Anthony W. (2001) 87 Cal.App.4th 246, 250 (Anthony W.); In re Kimberly F. 

(1997) 56 Cal.App.4th 519, 526 (Kimberly F.).) 

C. Mother failed to present new evidence or changed circumstances

We review the court’s summary denial of Mother’s section 388 petition

for abuse of discretion. (In re Angel B. (2002) 97 Cal.App.4th 454, 460 (Angel 

B.).) Whether Mother’s petition satisfied the threshold prima facie showing 

entitling her to a hearing (and reversal in this case) depends on the facts 

alleged in her petition, as well as the undisputed facts in the court’s file. (See 

Angel B., supra, at p. 461.) 

Mother’s stated reasons for requesting modification of the court’s order 

terminating reunification services is a June 20, 2023 order in another 

dependency case relating to A.O.’s sibling in which the court ordered 

reunification services to continue with the sibling at the six-month review 

hearing in that case, in addition to Mother’s continuing participation in 

services at Vista Hill Parent Care. Mother contends that A.O. “deserves the 

opportunity to live with his mother and sibling in the most natural family 
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setting possible,” and that her continued participation in services “would 

allow the bond between the minor and mother to grow.” 

The reunification order entered in the dependency case for A.O.’s 

sibling does not provide a viable basis for Mother’s petition. Preliminarily, 

the June 20, 2023 order from the sibling’s dependency case is not attached to 

Mother’s petition, nor is it contained in the record on appeal. The petition 

merely attaches the first page of the Agency’s Status Review Report 

submitted in advance of that hearing in which the Agency recommended the 

sibling remain in out-of-home care and that Mother be offered continued 

reunification services for the sibling to the 12-month date. Furthermore, the 

dependency case of A.O.’s sibling was still at the early six-month stage when 

reunification for the sibling was the court’s focus. A.O.’s dependency 

proceeding, on the other hand, had been pending for almost 24 months and it 

had been nine months since reunification services had been terminated, and 

the focus of the case had shifted away from reunification to providing a 

permanent, stable placement for A.O. (See Marilyn H., supra, 5 Cal.4th at p. 

304.) 

Also attached to Mother’s petition are eight letters, from her outpatient 

treatment providers, her employer, her sponsor, and the director and house 

manager of her recovery home. Bearing various dates in March and April of 

2023, the letters show that Mother had obtained and maintained employment 

for over two months, remained sober for approximately four months, and had 

been living in a recovery home while she continued to progress toward her 

treatment goals by taking various classes, attending therapy, and actively 

participating in her outpatient program.

Even if we credit all the evidence presented by Mother (see In re Daijah 

T. (2000) 83 Cal.App.4th 666, 673) and assume that she continued to progress 
9

in her treatment goals while maintaining her sobriety and employment in 

May and June (see Angel B., supra, 97 Cal.App.4th at p. 465), the evidence 

presented, at best, merely shows changing circumstances rather than a 

genuine change of circumstances. (See Kimberly F., supra, 56 Cal.App.4th at 

p. 529; see also In re Alayah J. (2017) 9 Cal.App.5th 469, 482 (Alayah J.); In 

re Baby Boy L. (1994) 24 Cal.App.4th 596, 610 [“A mere prima facie showing 

of changing . . . circumstances was not enough to require or justify a hearing 

on return of the child to [mother] after two years.”].) Notably, mother had not 

even completed her intensive outpatient treatment -- according to her 

substance use disorder counselor, she was “scheduled to advance into a lower 

level of care” on May 1, 2023. Mother did not submit any follow-up letters or 

testimony, and her pending incarceration would certainly interfere with her 

continuing participation in her outpatient treatment. Although the letters 

show that Mother is progressing and continuing in her efforts to improve in 

various areas of her life, we conclude that they fail to establish changed 

circumstances sufficient to warrant a section 388 hearing. 

D. Mother failed to show reunification was in A.O.’s best interests 

At this point of the proceedings, Mother’s interest in the care, custody 

and companionship of the child was no longer paramount as the focus had 

already shifted away from reunification. (See In re Stephanie M. (1994) 7 

Cal.4th 295, 317.) Although a parent may make a request for resuming 

reunification services after the 18-month mark, the court will only order 

continued reunification services in “exceptional situations in which the court 

determines that extending services and continuing reunification efforts 

beyond 18 months is not contrary to the child’s interests.” (Michael G. (2023) 

14 Cal.5th 609, 632.) 
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While a section 388 petition must be liberally construed in favor of its 

sufficiency (In re Zachary G. (1999) 77 Cal.App.4th 799, 806; Cal. Rules of 

Court, rule 5.570(a)), after reunification services have been terminated as 

they were in this case, there is a rebuttable presumption that continued 

foster care is in the best interest of the child. (Angel B., supra, 97 

Cal.App.4th at p. 464.) In order to rebut the presumption, Mother would 

have to make a factual showing that A.O.’s best interests would be served by 

additional reunification services. (Id. at p. 465.) 

Mother’s unsupported and conclusory statement that A.O. “deserves 

the opportunity to live with his mother and sibling in the most natural family 

setting possible” is not a factual showing, and none of the letters submitted in 

support of her petition mention A.O.’s sibling bond nor do they specifically 

address A.O.’s needs or what would be in his best interests. For instance, the 

letter from the therapist at Vista Hill merely states that Mother is continuing 

in treatment and would “continue to work on maintaining growth of personal 

strengths, resilience, and coping skills as focusing on healing and stability 

while managing current responsibilities and towards the goal of child 

reunification.” 

Mother also generally claims she is “in a position to complete the 

services needed to address any concerns that the [Agency] may have”, but her 

petition fails to specifically address how additional reunification services 

would be in A.O.’s best interest in light of his resistance to visitation and his 

strong connection to his foster parents. (Alayah J., supra, 9 Cal.App.5th at p. 

478 [“To make a prima facie showing under section 388, the allegations of the 

petition must be specific regarding the evidence to be presented and must not 

be conclusory.”].)
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Mother’s petition failed to make a prima facie showing that 

continuation of reunification services was in A.O.’s best interest. Unlike 

other cases in which a prima facie showing had been made, Mother’s petition 

does not contain any professional recommendation that A.O. be returned to 

Mother’s custody (cf. Hashem H., supra, 45 Cal.App.4th at pp. 1797-1798), 

nor do any of the letters state that A.O. still had a strong bond with Mother 

or that she was presently able to provide suitable care for him (cf. Jeremy W., 

supra, 3 Cal.App.4th at pp. 1415-1416). The record is replete with examples 

of how A.O. was more bonded to his foster parents and was resistant to 

visiting with Mother , and Mother was just three days from her scheduled

one-year incarceration. 

E. Harmless error

In light of our conclusion that Mother failed to make the threshold 

prima facie showing, the trial court did not abuse its discretion by summarily 

denying Mother’s section 388 petition, and any error by the trial court in its 

limited review of Mother’s petition was harmless. “The California 

Constitution prohibits a court from setting aside a judgment unless the error 

has resulted in a ‘miscarriage of justice.’ (Cal. Const., art. VI, § 13.)” (In re 

Celine R. (2003) 31 Cal.4th 45, 59-60.) Reversal is permitted “only if the 

reviewing court finds it reasonably probable the result would have been more 

favorable to the appealing party but for the error.” (Ibid.) 

There was no miscarriage of justice here. “[I]n order to prevent 

children from spending their lives in the uncertainty of foster care, there 

must be a limitation on the length of time a child has to wait for a parent to 

become adequate. [Citations.]” (Marilyn H., supra, at 5 Cal.4th at p. 308.)
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DISPOSITION

The June 26, 2023 order is affirmed.

KELETY, J.

WE CONCUR:

DATO, Acting P. J.

BUCHANAN, J.