Filed 12/11/23 In re J.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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re J.M., a Person Coming Under 

the Juvenile Court Law.

 D082502

SAN DIEGO COUNTY HEALTH 

AND HUMAN SERVICES 

AGENCY,

Plaintiff and Respondent,

v.

P.M.,

Defendant and Appellant.

 (Super. Ct. No. J521176)

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

Marissa A. Bejarano, Judge. Affirmed. 

Suzanne M. Davidson, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

Claudia G. Silva, County Counsel, Lisa M. Maldonado, Chief Deputy

County Counsel, and Eliza Molk, Deputy County Counsel, for Plaintiff and 

Respondent. 

This is the second appeal by P.M. (Mother) involving her son, J.M. In a 

prior appeal, we affirmed an order placing J.M. in Arizona with the maternal 
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aunt (Aunt) pursuant to the relative placement preference of Welfare and 

Institutions Code1 section 361.3. (In re J.M. (Nov. 22, 2023, D082385) 

[nonpub. opn.] (J.M. I).) While that appeal was pending, Mother filed a 

petition under section 388 for modification of the placement order. 

Specifically, Mother requested that the court modify its order to maintain 

J.M.’s placement in San Diego with the great-uncle and to allow Mother to 

have structured, unsupervised visits with J.M. at her sober living facility. 

In July 2023, the juvenile court denied Mother’s section 388 petition. 

Mother now appeals that denial, contending in this instance that the court 

abused its discretion in denying her an evidentiary hearing. We conclude 

that the court properly exercised its discretion in determining Mother failed 

to make a prima facie showing that (1) there were substantially changed 

circumstances, or (2) her requested modifications were in J.M.’s best 

interests. Accordingly, we affirm the juvenile court’s order. 

FACTUAL AND PROCEDURAL BACKGROUND

I. Prior Proceeding2

In January 2023,3 bystanders physically detained Mother after they

saw her hit her then two-year-old-son J.M. in the face multiple times. A 

bystander took J.M. from Mother while other individuals called police. 

Mother was intoxicated and attempting to leave when she encountered 

another bystander, whom she punched in the face and knocked to the ground. 

A doctor examined J.M., finding a swollen upper lip and a reddened cheek 

1 All further statutory references are to the Welfare and Institutions

Code. 

2 We take the factual background of the prior proceeding from our prior 

opinion. (J.M. I, supra, D082385.)..

3 All undesignated date references are to 2023. 
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with linear marks. The doctor opined that the injuries were diagnostic of 

physical abuse. 

The San Diego County Health and Human Services Agency (the 

Agency) had previously opened a voluntary case for Mother because she used 

heroin, methamphetamine, and marijuana while pregnant with J.M. She 

took illicit drugs during her first trimester, but ceased use after learning of 

her pregnancy. Mother suffered from schizophrenia and bipolar disorder. 

She stopped taking psychotropic medication a few years earlier and did not 

participate in mental health services. 

In early February, the Agency filed a petition on J.M.’s behalf because 

of Mother’s untreated mental health issues. Mother agreed to allow the 

great-uncle to care for J.M. as part of a safety plan and the Agency placed 

J.M. with him. Between February and April, Mother experienced multiple 

drug use relapses interspersed with negative tests for illegal substances. She 

reported experiencing auditory and visual hallucinations. In or around April, 

Mother moved into an inpatient treatment program. 

In April, the Agency learned that Arizona authorities approved J.M. to 

live with Aunt in Arizona. The Agency asked the juvenile court for discretion 

to place J.M. there. Aunt was prepared for J.M. to live with her and visited 

him while he resided in San Diego with the great-uncle. 

In its June report, the Agency noted Aunt remained in regular contact

with Mother. Aunt and Mother discussed allowing the maternal family to 

care for J.M. so he could enjoy stability while Mother worked on her 

protective issues. If the court placed J.M. in her care, Aunt would both allow 

Mother to visit J.M. in Arizona and facilitate frequent Facetime visits. Aunt 

also expressed willingness to travel to San Diego monthly so J.M. might visit 

with Mother. 
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Mother initially wanted J.M. placed with Aunt, although she implied it 

would be easier to reunify with J.M. if he remained in San Diego. However, if 

the court bypassed her reunification services Mother wanted J.M. placed with 

Aunt. Mother felt the great-uncle was tired and needed a break from caring 

for J.M., especially because he also cared for her oldest daughter. 

Regarding an interim placement, the Agency assessed the section 361.3 

factors concluding they weighed in favor of J.M.’s placement with Aunt. She 

was aware of J.M.’s needs, prepared her home for him, and researched 

schools and activities on his behalf. The maternal grandmother and the 

great-uncle also wanted J.M. to be placed with Aunt. Although Mother 

initially agreed with this approach, and did throughout most of the case, she 

at times implied she wanted J.M. to remain in San Diego for reunification 

purposes.

The Agency report observed that the great-uncle expressed a 

willingness to provide temporary care of J.M. The maternal family believed 

the great-uncle grew tired of caring for Mother’s children. The great-uncle 

hesitated to state these feelings because he did not want J.M. in foster care. 

Moreover, the great-uncle and Mother had a strained relationship. The 

Agency opined this could adversely affect reunification, which required 

communication between the caregiver and the parent. 

At the contested dispositional hearing in June, the juvenile court found 

J.M.’s best interests favored placement with Aunt. The court ordered the 

Agency to hold a child and family team meeting to create a visitation plan for 

Mother. J.M. would remain in San Diego until the plan got deployed.

Mother appealed. (J.M. I, supra, D082385.) 

In our November opinion resolving that appeal, we explained that the 

record supported the juvenile court’s decision to place J.M. with Aunt. We 
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concluded that “[t]he court reasonably determined it was in J.M.’s best 

interests to live with Aunt” and affirmed the court’s findings and orders. 

(J.M. I, supra, D082385.) 

II. Current Proceeding

A. Child and Family Team Meeting

Mother, the great-uncle, Aunt, the social worker, a protective services 

supervisor for the Agency and J.M.’s attorney participated in a child and 

family team meeting in July. 

The great-uncle reported J.M. improved in many areas while detained 

in his care. He expressed concern about J.M.’s move to Arizona without 

daycare and services in place. He did not want Aunt to feel burdened but

noted placement with her was in J.M.’s best interests long term. Further, the 

great-uncle noted he wanted to help transition J.M. to Aunt’s care and was 

open to visiting J.M. in Arizona. 

Mother self-reported involvement in parenting classes, 

psychiatry/medication management, and child abuse classes. She opined 

J.M. had excelled in out-of-home care, noted the family loved and supported 

one another, and reported that she learned certain skills in her services. 

Mother was concerned she lacked income and a bank card. 

Aunt wanted to know J.M.’s social worker in Arizona and the details 

about flights for visits. She was concerned about daycare support and other 

resources. She noted that the family may be available in emergency 

situations and may be able to help Mother by putting incidental costs on a

bank card. Aunt was also willing to facilitate video calls between Mother and 

J.M. during the week and in between visits. 

The protective services supervisor for the Agency noted that J.M. may 

need to be placed with Aunt before Arizona assigned him a social worker. 
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The Agency would submit a request to its travel desk for visits requiring 

airplane travel. Although there could be issues with daycare funding, the 

supervisor intended to explore options for support. 

The social worker commented on Mother’s familial support and general 

engagement in services. She noted she may be able to assist with Mother’s

travel and getting services for J.M. in Arizona. She was concerned Arizona 

had not offered services to support J.M.’s placement there. She noted the 

Agency would supply plane tickets for J.M. and Aunt, and that the Agency 

would submit requests to provide Mother with plane and hotel 

accommodations for her visits in Arizona. She noted Mother would need a 

bank card on file to cover incidental costs. 

Upon his placement in Arizona, J.M. was to visit Mother in San Diego 

the third weekend of each month. Mother was open to visiting J.M. in 

Arizona on the first and last weekend of each month. Additional follow up 

included exploring daycare services in Arizona, finding other funding or 

babysitting options, exploring services for J.M. that were separate from those 

provided by child welfare agencies, communicating with the child welfare 

agency in Arizona, and ensuring a visitation and transition plan was set 

before J.M.’s move. 

B. Mother’s Section 388 Petition

In July, Mother filed a petition under section 388 asking the court to 

change its prior order from placing J.M. with Aunt to maintaining his 

placement with the great-uncle. She also asked the court to order a 

minimum of four structured, unsupervised visits at her sober living facility 

per week spanning three hours. 

Mother alleged that the changed circumstances included that the

Agency’s visitation plan for Mother upon J.M.’s move to Arizona was not 
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“practical.” The social worker and Aunt “did not share the same 

understanding of the oversight in” Arizona, when the move would take place, 

“the services that would be provided, and childcare.” Mother further alleged 

she reached “over 90 days of sobriety” and last drank alcohol in April. 

Mother asserted that it was in J.M.’s best interests because he was 

bonded to Mother, he expressed sadness when separating from her at a

recent visit, and her requested orders would facilitate reunification. She 

attached to her petition: (1) the child and family team meeting notes; (2) the 

minute order from the contested disposition hearing in the prior proceeding; 

(3) the social worker’s June addendum report. 

C. Hearing on Mother’s Petition

Mother asked the court to set her section 388 petition for an 

evidentiary hearing. Regarding her request for structured, unsupervised 

visits, she cited the Agency’s report attached to her petition. It showed that 

Mother maintained 90 days of sobriety. She also argued that her visits were 

consistent and occurred without issue. 

Mother provided an offer of proof from her investigator. If called to 

testify, her investigator would state that Mother began visits with J.M. at the 

beginning of May, that J.M. often appeared quiet and upset at the end of 

visits and became excited before visits, that Mother acted appropriately 

during visits, and that J.M. expressed a desire to spend more time with 

Mother at a recent visit. Per the investigator’s offer of proof, J.M. held 

Mother’s hands and repeatedly said, “I don’t want to[ ]” when the visit was 

ending and upon driving away from the visit. 

Mother argued that some logistics for J.M.’s transition to Arizona, and 

Mother’s visits with him there, remained unresolved after the child and 

family team meeting. Her investigator would testify that the Agency and 
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Aunt did not share an understanding about the available funding, transition 

date, and the individuals allowed to be around J.M. once placed in Aunt’s 

care. The investigator would also testify that concerns were expressed about 

the implementation of timely services for J.M. in Arizona, logistics of 

Mother’s travel to and from Arizona, and that the social worker and Aunt did, 

at times, exhibit frustration toward each other. 

J.M.’s counsel joined in Mother’s request for an evidentiary hearing. 

She also agreed with Mother’s request for structured, unsupervised visits. 

The Agency argued that Mother’s request to change J.M.’s placement 

constituted an attempt to relitigate the hearing at issue on appeal in the 

prior proceeding. It noted that a visitation plan was reached with the 

Agency, Mother, Aunt, and the great-uncle. It laid out the visitation plan, 

including logistics, issues related to cost, and Mother’s ability to expand her 

visitation on the record. It would address any concerns that arose upon 

execution of the plan. In opposing Mother’s request for structured 

unsupervised visits, the Agency referred to its reports. 

D. The Juvenile Court’s Findings and Orders

“After reviewing the documents that have been submitted and the 

entire factual and procedural history,” the juvenile court found that Mother 

had “not met her burden of proof that there has been either a change of 

circumstances or that it would be in [J.M.’s] best interest to change the 

Court’s order.” Although “certain details have not been worked out regarding 

services that are to be provided to [J.M.],” the court found that “details of a 

visitation schedule has been established” for Mother and that “the details 

regarding those visits have been arranged.” It ordered Mother’s visits to last 

at least three hours so that Mother would receive “more visitation than she 

currently is receiving.”
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Regarding best interests, the court noted it “conducted an analysis 

specifically pursuant to section 361.3” in the prior proceeding and 

“determine[d] that it was in [J.M.’s] best interest to be placed with [Aunt] in 

Arizona.” It also found Mother had established “changing circumstances”

instead of changed regarding her request for structured unsupervised visits. 

As Mother had a lengthy substance use history and relapsed after a five-year 

period of sobriety, the court wanted to see Mother demonstrate “additional

stability and sobriety.” It also noted “the protective issue is not just related 

to [Mother’s] alcohol use but also [Mother’s] mental health and the child 

abuse concerns.”

After concluding that Mother “failed to meet her prima facie burden of 

proof,” the juvenile court denied her section 388 petition. 

DISCUSSION

Mother appeals from the juvenile court’s summary denial of her section 

388 petition. 

A. Legal Principles

Section 388 allows a parent to petition the juvenile court to modify a 

placement order due to changed circumstances or new evidence. (In re 

Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).) To prevail on a 

section 388 petition, the petitioning parent must show by a preponderance of 

the evidence that (1) new evidence or a changed circumstance warrants 

alteration of the juvenile court’s prior placement order, and (2) the proposed 

change is in the best interest of the child. (Ibid.) “ ‘Not every change in 

circumstance can justify modification of a prior order.’ ” (In re N.F. (2021) 

68 Cal.App.5th 112, 120.) To be sufficient, the change must be material, 

relevant, and substantial. (Id. at pp. 120, 121, fn. 3.) 
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Before an evidentiary hearing is required, the petitioning parent must 

first make a prima facie showing that these two elements are supported by 

“probable cause.” (In re G.B. (2014) 227 Cal.App.4th 1147, 1157; In re 

Marilyn H. (1993) 5 Cal.4th 295, 310 (Marilyn H.).) “While the petition must 

be liberally construed in favor of its sufficiency [citation], the allegations 

must nonetheless describe specifically how the petition will advance the 

child’s best interests.” (In re G.B., at p. 1157.) If the allegations would fail to 

sustain a favorable decision even if they were accepted as true, the petition 

may be summarily denied without an evidentiary hearing. (Ibid.) 

“In determining whether the petition makes the required showing, the 

court may consider the entire factual and procedural history of the case.” (In 

re K.L. (2016) 248 Cal.App.4th 52, 62.) “ ‘Not every change in circumstance 

can justify modification of a prior order.’ ” (In re N.F. (2021) 68 Cal.App.5th 

112, 120.) The petition “must show changed, not changing, circumstances” 

(In re Mickel O. (2011) 197 Cal.App.4th 586, 615 (Mickel O.)), and the 

changed circumstances “must be substantial” (In re Ernesto R. (2014) 230 

Cal.App.4th 219, 223 (Ernesto R.)). That is, there must be a showing that 

“the problem that initially brought the child within the dependency system 

[has been] removed or ameliorated.” (In re A.A. (2012) 203 Cal.App.4th 597, 

612.) 

A modification petition is addressed to the sound discretion of the 

juvenile court and its decision will not be disturbed on appeal in the absence 

of a clear abuse of discretion. (Stephanie M., supra, 7 Cal.4th at p. 318.) A

dependency court abuses its discretion when its decision exceeds the bounds 

of reason. (Id. at pp. 318–319.) Thus, unless it is clearly established that the 

court made an “ ‘ “arbitrary, capricious, or patently absurd determination,” ’ ” 

the trial court’s ruling should not be disturbed on appeal. (Id. at p. 318.) 
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B. Changed Circumstances

Mother first argues that the juvenile court erred in denying Mother’s 

request for an evidentiary hearing because she made a prima facie showing of 

changed circumstances. We disagree. 

Mother argues that “she remained in her sober living facility and 

continued to make progress to address her substance abuse and mental 

health issues.” Although we commend Mother for her efforts in starting 

down the path of recovery, we nevertheless conclude that the trial court did 

not abuse its discretion by finding “changing” rather than “changed”

circumstances. In cases involving a history of substance abuse problems, 

courts have consistently declined to recognize substantially changed

circumstances based on a relatively brief period of sobriety or engagement in

a treatment program. (Ernesto R., supra, 230 Cal.App.4th at p. 223 [despite 

her completion of a drug treatment program, mother’s recent sobriety merely 

reflected changing circumstances given her history of relapses]; In re C.J.W.

(2007) 157 Cal.App.4th 1075, 1081 [concluding “three months old” efforts at 

sobriety did not demonstrate changed circumstances]; In re Cliffton B. (2000) 

81 Cal.App.4th 415, 423 [concluding seven months of sobriety were 

insufficient to show changed circumstances given long history of addiction].) 

This case is no different. The juvenile court properly concluded that 

Mother had a serious history of drug and alcohol abuse. The court noted that 

she “began using alcohol at a very young age, at the age of eight, and 

throughout her life she continued to struggle with substance abuse. She’s 

been diagnosed with alcohol use disorder, cannabis use, amphetamine use.” 

Mother “has been able to maintain her sobriety for up to five years, and in 

the past that she has been able to maintain her sobriety while she’s been 

court-involved or on probation, but then unfortunately she has returned to 
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use.” Given Mother’s extensive history of drug and alcohol abuse, and her 

continuing need for therapy and residence in a sober living facility, the 

juvenile court reasonably concluded that her recovery was still a work in 

progress, notwithstanding her more than 90 days of sobriety.

Mother also argues that her “continued proactive engagement in 

services, her improved and strengthened bond with her son and [J.M.’s] 

continued improvement while in [the great-uncle’s] care are material changed 

circumstances to warrant the granting of an evidentiary hearing.” But once 

again these are “changing” circumstances rather than changed 

circumstances. Mother did not begin visiting J.M. until May and then, barely 

a month later, she expressed concern she could not care for him due to her 

mental health state. The court correctly found that Mother’s mental health 

and child abuse concerns had not been adequately addressed. Although 

Mother was prescribed psychiatric medication in February, there was no 

evidence she was compliant in taking it. Additionally, her petition did not 

address concerns related to her mental health, and she had not demonstrated 

a period of sobriety or mental stability outside of a structured living facility. 

Moreover, Mother’s arguments overlook the governing standard of 

review on appeal. We lack authority to reweigh the evidence or substitute 

our judgment for that of the juvenile court. (Stephanie M., supra, 7 Cal.4th 

at pp. 318–319.) As discussed above, there is sufficient evidence in the record 

supporting the juvenile court’s finding that circumstances were “changing,”

not changed. (See In re J.C. (2014) 226 Cal.App.4th 503, 530 [substantial 

evidence standard of review is applicable to the factual components of a 

juvenile court’s determination].) Or stated another way, Mother’s evidence 

failed to demonstrate the recent changes were “substantial . . . when 
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considered in light of all of the circumstances of the case.” (In re N.F., supra, 

68 Cal.App.5th at p. 121, fn. 3.) 

In fact, at a hearing in July, Mother’s attorney conceded that “[t]here’s 

nothing new here in the [section] 388 [petition], aside from Mother’s sobriety 

date.” She further explained that her concerns were “not new,” but were “the 

same” that she “cited at trial” in the prior proceeding regarding “the 

practicality as to how this plan is going to work.” Because the juvenile court 

did not abuse its discretion by finding no substantial change of 

circumstances, it acted properly by denying Mother’s section 388 petition.

C. J.M.’s Best Interests 

The juvenile court also ruled against Mother on the second requirement 

for relief under section 388 by finding that the proposed modification would 

not be in J.M.’s best interests. On appeal, Mother argues that because 

granting her “structured, unsupervised visits at her sober living facility and 

keeping [J.M.] placed locally with [the great-uncle] might be in [J.M.’s] best 

interest, the juvenile court should have at least held an evidentiary hearing.” 

We disagree with Mother. 

The concept of a child’s best interest “ ‘is an elusive guideline that 

belies rigid definition.’ ” (In re Ethan N. (2004) 122 Cal.App.4th 55, 66, 

quoting Adoption of Michelle T. (1975) 44 Cal.App.3d 699, 704.) Its purpose 

is to maximize a child’s ability to mature into a stable, well-adjusted adult. 

(Jennifer S. v. Superior Court (2017) 15 Cal.App.5th 1113, 1124.) At the 

hearing on Mother’s petition, the court determined that it had already heard 

all the evidence at the contested disposition hearing, which was less than a 

month earlier, and found that it was in J.M.’s best interests to be placed with 

Aunt in Arizona. The court noted that it had analyzed “which relative it 
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would be in [J.M.’s] best interest of being placed with . . . [and] made the 

determination it was [Aunt.].” 

Mother once again has failed to show that the juvenile court abused its 

discretion in determining J.M.’s best interests. In addition to all the reasons 

set forth in our prior opinion (J.M. I, supra, D082385), additional evidence 

supports the court’s decision, including that the great-uncle viewed J.M.’s 

placement with Aunt to be in J.M.’s long-term best interests and that he 

wanted to help transition J.M. to her care. The juvenile court correctly

determined there was a plan for Mother to visit J.M. in Arizona with the 

details arranged, which would provide her with more visitation than she 

currently received. The court’s decision was further supported by Mother’s 

delay in starting child abuse classes and voluntary services. 

We conclude that juvenile court did not abuse of discretion in denying 

Mother an evidentiary hearing on her section 388 petition. 

DISPOSITION

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

affirmed. 

HUFFMAN, Acting P.J.

WE CONCUR:

O’ROURKE, J.

IRION, J.