Filed 8/15/24 In re A.Q. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

In re A.Q., et al., Persons

Coming Under the Juvenile 

Court Law.

 B333739

 (Los Angeles County

 Super. Ct. No.

 20CCJP00681)

LOS ANGELES COUNTY 

DEPARTMENT OF 

CHILDREN AND FAMILY 

SERVICES,

Plaintiff and 

Respondent,

v.

D.B.,

Defendant and 

Appellant.
2

APPEAL from an order of the Superior Court of the County 

of Los Angeles, Gabriella Shapiro, Judge Pro Tempore. Affirmed.

Jack A. Love, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Dawyn R. Harrison, County Counsel, Kim Nemoy, 

Assistant County Counsel, Aileen Wong, Senior Deputy County 

Counsel, for Plaintiff and Respondent.

________________________

I. INTRODUCTION

D.B. (mother) appeals from the juvenile court’s order 

denying her petition under Welfare and Institutions Code section 

388.

1 According to mother, the court abused its discretion by 

denying the petition because her evidence in support constituted 

a prima facie showing of changed circumstances and that the 

requested change in order was in the best interests of her

children. We affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Detention, Jurisdiction, and Disposition

On January 25, 2020, the Los Angeles County Department 

of Children and Family Services (Department) received a referral 

on behalf of the children, A.Q. (born in 2018) and N.Q. (born in 

1 All further statutory references are to the Welfare and 

Institutions Code unless otherwise indicated.
3

2019). The caller reported that mother had sustained injuries 

when father, during an argument, pushed her out of a car. The 

police officer who interviewed mother after the incident expressed 

concerns about her mental health. Mother admitted to the officer 

that she had postpartum depression, oppositional defiant 

disorder, and anxiety. She also admitted that she was not taking 

medication. Father reported that mother’s mental health 

problems had required hospitalization in the past and the police 

had responded to the family home at least 10 times due to those 

issues.

On January 28, 2020, mother admitted that she had a 

history of domestic violence with father. She also conceded that 

she had been prescribed anxiety medication, which she did not 

take, and that she had been placed on a 72-hour hospital hold six 

months earlier.

On January 31, 2020, the juvenile court issued a removal 

order and the Department placed the children with maternal 

aunt.

On February 4, 2020, the Department filed a petition under 

section 300, alleging that the children were at risk of serious 

physical harm. In paragraphs a-1 and b-1, the Department 

alleged that mother and father had a history of engaging in 

violent altercations and that their behavior endangered the 

children. In paragraph b-2, the Department alleged that mother 

had a history of mental problems, including anxiety, postpartum 

depression, delusions, and homicidal ideation, which rendered 

her incapable of caring for the children and endangered them. 

And, in paragraph b-3, the Department alleged that mother had 

a history of substance abuse, including methamphetamine, and 

was a current user of illicit drugs and marijuana, all of which 
4

rendered her incapable of caring for the children and endangered 

them.

On February 5, 2020, the juvenile court detained the 

children, removed them from the parents’ custody, and granted 

the parents monitored visitation.

The Department filed a jurisdiction/disposition report on 

March 6, 2020, relating the following facts. On February 27, 

2020, mother denied having mental health issues or being 

prescribed psychotropic medication. She admitted, however, 

methamphetamine use “off and on” since age 18 which “at its 

peak” reached three times a week. She quit using 

methamphetamine when she was 22, did not attend any 

treatment programs, and was a current daily user of marijuana. 

Mother tested positive for marijuana on January 31, 2020, but 

negative for all substances on February 28, 2020.

In a July 7, 2020, last minute information for the court, the 

Department reported that mother was participating in a 

parenting program and had completed six to eight sessions. She 

tested negative for drugs seven times from March 17 through 

June 25, 2020. But she failed to drug test on April 5 and May 4, 

2020. In March 2020, mother completed an emergency domestic 

violence shelter program and enrolled in outpatient treatment; 

she was also participating in substance abuse groups, domestic 

violence classes, parenting education, and individual counseling.

At the July 7, 2020, jurisdiction/disposition hearing, the 

juvenile court sustained the section 300 petition against mother. 

The court declared the children dependents of the court, ordered 

them removed from parental custody, and ordered family 

reunification services for mother, including a full drug/alcohol 

program with aftercare services, and weekly random or on-
5

demand drug/alcohol testing. It also ordered mother to 

participate in a domestic violence support group, parenting 

education, mental health counseling including taking prescribed 

psychotropic medication, individual counseling, and medication 

management. The court granted mother monitored visitation 

with the children, appointed an Evidence Code section 730 

evaluator to examine her, and set the matter for a six-month 

review hearing.

B. Reunification Services

At the January 5, 2021, review hearing, the juvenile court 

found that mother was in compliance with her case plan, ordered 

further family reunification services, allowed mother 

unmonitored visitation, and set the matter for a twelve-month 

review hearing.

On April 13, 2021, the juvenile court granted the 

Department’s section 388 petition and ordered that mother’s 

visits be monitored due to issues with her childcare during 

visitation.

In a status review report filed June 17, 2021, the social 

worker reported that mother tested negative for drugs and 

alcohol 20 times from January 8 through May 28, 2021, with one 

no show in March 2021. Mother also completed parenting and 

domestic violence programs and participated in individual 

therapy.

At the July 7, 2021, 12-month review hearing, the juvenile 

court found that mother had made partial progress in her case 

plan and ordered further reunification services for her.
6

In a report filed August 10, 2021, the social worker advised 

that she had spoken with mother’s psychiatrist who informed her 

that mother was diagnosed in December 2020 with an 

adjustment disorder with mixed anxiety and depressed mood. In 

May 2021, she was diagnosed with major depressive disorder and 

depression for which she was prescribed two medications. But 

mother informed the social worker that she was taking only one 

medication.

On August 18, 2021, the juvenile court ordered that 

mother’s visitation include one unmonitored visit each week for 

two hours with each child.

By October 2021, the children had been placed with 

paternal aunt.

At a December 2, 2021, progress hearing, a representative 

of the Manchester Point Arena Band of Pomo Indians (the tribe) 

made an appearance in juvenile court.

In a report filed on January 19, 2022, the social worker 

advised that on January 1, 2022, she received an e-mail from 

maternal aunt stating that, on New Year’s Eve, mother “got 

belligerently drunk” and physically violent with the maternal 

aunt and her friend. Mother bit maternal aunt and pulled her 

hair. She also punched the aunt’s friend who was trying to calm 

mother down. Maternal aunt also stated that mother had 

recently been showing signs of delusional thoughts, aggression, 

and paranoia. A visiting relative, who had witnessed mother’s 

behavior in the past, stated that she had never seen her being 

that aggressive and delusional. The police responded to the 

incident. Mother initially ran away, but officers located and 

arrested her.
7

On January 26, 2022, the Department filed a section 388 

petition requesting that mother’s visitation be returned to 

monitored status due to the incident on New Year’s Eve.

On January 28, 2022, the juvenile court held a hearing and 

terminated family reunification services for mother, finding that 

mother was not in substantial compliance with her court-ordered 

case plan. The court also ordered mother’s visits to be monitored.

C. Section 366.26 Proceedings

In a February 15, 2022, interim review report, the social 

worker reported that mother had monitored visits with the 

children and that she called them every two to three days.

In a March 1, 2022, last minute information for the court,

the social worker reported that on February 28, 2022, she spoke 

with mother’s therapist who advised that it had been challenging 

getting in contact with mother. The last time the therapist spoke 

with mother at length was in December 2021. On February 24, 

2022, the parent and child interactive therapist told the social 

worker that she had concerns about mother. At the last several 

sessions, mother looked disheveled and she had arrived late two 

times. Mother “seemed out of it” and had difficulty working with 

both children.

On March 2, 2022, the juvenile court granted the 

Department’s section 388 petition and ordered mother’s visitation

to take place in the Department office only.

On May 6, 2022, the juvenile court noted that the tribe 

would be intervening, found that this was an ICWA2 case, and 

2 Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.).
8

ordered the Department to prepare a qualified expert witness 

letter and work with the tribe to have the children enrolled.

In the May 20, 2022, status review report, the social worker 

advised that the children remained in the care of paternal aunt. 

The children were doing well in the home and had bonded with

paternal aunt and uncle. According to the social worker, paternal 

aunt and uncle were interested in adopting the children.

The social worker further advised that on April 4, 2022, the 

parent and child interactive therapist reported that mother had 

not participated in therapy for several weeks. And, when she had 

participated, she was unable to fully understand the therapist’s 

explanation of parenting skills.

The social worker also reported that on April 3, 2022, 

mother was arrested for vandalism. Two days later, on April 6, 

2022, she was convicted of a felony assault with a deadly weapon 

and sentenced to 180 days in jail with four years of probation. 

Prior to mother’s incarceration, she was not visiting the children 

regularly.

In a June 1, 2022, last minute information for the court, the 

social worker reported that mother was released from custody on 

the morning of May 28, 2022, but later that day she was arrested 

for assault with a deadly weapon with possible great bodily 

injury. She remained incarcerated.

At the June 1, 2022, section 366.26 hearing, the juvenile 

court concluded that the permanent plan of adoption was 

appropriate and continued the hearing.

In a September 14, 2022, last minute information for the 

court, the social worker summarized the opinion of the qualified

expert witness as follows: In the expert’s opinion, there was clear 

and convincing evidence that a causal relationship existed 
9

between the conditions in the parents’ home and the likelihood 

that continued custody of the children by either parent was likely 

to result in serious emotional or physical damage to the children. 

The expert also concurred with the Department’s 

recommendation for a tribal customary adoption with paternal 

aunt.

In a November 16, 2022, status review report, the social 

worker advised that the children were doing well and bonded to 

paternal aunt and uncle who were meeting their needs. The 

social worker also advised that mother remained incarcerated 

with no release date available. Paternal aunt confirmed that 

mother called the children once every three days.

In a May 22, 2023, status review report, the social worker 

reported that mother was released from incarceration in January 

2023 and transferred to an inpatient substance abuse program.

Mother completed three months in a substance abuse 

rehabilitation program and, in April 2023, she transferred to a 

sober living program. She began having monitored visits with 

the children every other weekend at the inpatient substance 

abuse program and, when she transferred to the sober living 

program, she had visits with the children at a park near the 

program. Paternal aunt and uncle monitored the visits and did 

not report any incidents.

In a November 15, 2023, status review report, the social 

worker reported mother continued to reside in a sober living 

program. She continued having monitored visits with the 

children every other weekend on Sundays at a park. Paternal 

aunt and uncle monitored the visits, did not report incidents, and 

confirmed that mother behaved in an appropriate manner. 
10

Mother told the social worker she loved the children and never 

meant to hurt them; she wanted them to be safe and happy.

D. Section 388 Petition

On November 29, 2023, mother filed a section 388 petition, 

requesting a change in the juvenile court’s order terminating her 

reunification services and setting a section 366.26 hearing. 

Mother requested the court to order further reunification 

services, with liberalized visitation, or the return of custody over 

the children. Mother described the changed circumstances, as 

shown by her exhibits, as follows: She entered Prototypes on 

April 10, 2023, and continued treatment at that facility through 

the date of her petition. In that program, she participated in 

treatment groups and individual substance abuse counseling, as 

well as individual counseling, medication management, cognitive 

behavioral therapy, and 12-step and anger management 

programs. She had also received psychiatric services through 

Prototypes since January 6, 2023. And, mother randomly drug 

tested for the Department seven times from September 29 

through November 27, 2023, with negative results. In addition to 

detailing participation in services, mother asserted that she 

visited consistently with the children.

Mother also alleged that the requested change in order 

would be in the best interests of the children because she had 

developed a protective capacity as their biological parent and she 

had addressed the issues that brought this case to the juvenile 

court, resulting in a reduced risk to their safety.

At the November 29, 2023, continued section 366.26 

hearing, the juvenile court summarily denied mother’s section 
11

388 petition, finding that mother failed to make a prima facie 

showing of changed circumstances and that the change in order 

would not serve the best interests of the children. The court then 

continued the section 366.26 hearing to December 6, 2023.

E. Section 366.26 Hearing

At the December 6, 2023, section 366.26 hearing, following 

the arguments of counsel, the juvenile court granted full faith 

and credit to a tribal customary adoption order. The court noted 

that the children had been in a stable placement with paternal 

aunt and uncle for two years. The court also observed that, “[i]n 

this particular case, the Department has worked hand-in-hand 

with the [Indian tribe], and counsel, and the tribal social worker 

to come up with an appropriate plan on behalf of these Indian[ ]

children and ensure continuity in their tribe and follow the 

legislative intent to leave the children with family, if not with 

[the] parents, and follow the exception afforded to Native 

American tribes, which is to proceed to adoption without actually 

terminating the parental rights of any individuals.” Pursuant to 

the tribal customary adoption order, the juvenile court modified 

the rights of the parents accordingly and designated the paternal 

aunt and uncle as “as the holders of the children’s educational 

rights and developmental decision-making rights, and also as 

prospective adoptive parents . . . .”

On December 6, 2023, mother timely filed her notice of 

appeal.
12

III. DISCUSSION

Mother contends the juvenile court abused its discretion by 

denying her section 388 petition without an evidentiary hearing. 

According to mother, the evidence attached to her petition 

satisfied her prima facie burden by showing that she had been 

sober and participating in a variety of services to address her 

issues for the prior seven months and that additional 

reunification services would be in the children’s best interests. 

We disagree.

“Section 388 provides for modification of juvenile court 

orders when the moving party presents new evidence or a change 

of circumstances and demonstrates modification of the previous 

order is in the child’s best interests. [Citations.] To obtain a 

hearing on a section 388 petition, the parent must make a prima 

facie showing as to both elements. [Citations.]

“The petition should be liberally construed in favor of 

granting a hearing, but ‘[t]he 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.’ 

[Citations.] . . . When determining whether the petition makes 

the necessary showing, ‘the court may consider the entire factual 

and procedural history of the case.’ [Citations.]” (In re Samuel A. 

(2020) 55 Cal.App.5th 1, 6–7.)

When, as here, a section 388 petition is filed after family 

reunification services have been terminated, the juvenile court’s 

overriding concern is the children’s best interest. (In re 

Stephanie M. (1994) 7 Cal.4th 295, 317.) The parent’s interests

in the care, custody, and companionship of the child are no longer 
13

paramount; and the focus shifts to the needs of the child for 

permanency and stability. (Ibid.)

“We review the summary denial of a section 388 petition for 

abuse of discretion. [Citations.] . . . [W]hen the [juvenile] court’s 

summary denial is based on a mistake of law on undisputed facts, 

[however,] our review is de novo. [Citations.]” (In re Samuel A., 

supra, 55 Cal.App.5th at p. 7.)

The juvenile court did not abuse its discretion when it 

summarily denied the section 388 petition. Mother had serious 

and long-standing mental health and substance abuse issues,

which contributed to her history of domestic violence with father 

and other family members. She had a history of anxiety, 

postpartum depression, and delusions, and had been hospitalized, 

including involuntarily, for her mental health issues. She also 

had a history of not taking medication.

During the reunification period, mother participated in 

services to address her mental health, substance abuse, and 

domestic violence issues and was generally in compliance with 

her case plan. But, in late December 2021, almost two years 

after the incident that brought the family under the jurisdiction 

of the juvenile court, mother, who had been showing renewed 

signs of delusion, aggression, and paranoia, became intoxicated 

and assaulted maternal aunt and a friend resulting in her arrest.

Three months later, in April 2022, she was arrested again for 

vandalism and then convicted on the pending assault charge and 

sentenced to prison. By that time, mother had not participated in 

therapy for several weeks and when she had participated, she 

was unable to fully understand the therapist’s explanation of 

necessary parenting skills. And, when she was released from 

custody on the assault charge in late May 2022, she was almost 
14

immediately arrested again for assault with a deadly weapon. 

She was not released from custody until January 2023 when she 

again began participating in services to address her issues.

When mother’s recent seven-month participation in further 

services is viewed in light of record as a whole, it does not support 

her allegation of changed circumstances. By the time mother’s 

reunification services were terminated on January 28, 2022, the 

Department had already provided mother with 18 months of

reunification services, yet she continued to struggle with the 

same issues concerning substance abuse and violence that had 

plagued her for most of her life.

Moreover, even assuming mother had met her burden to 

demonstrate a change in circumstance, mother did not make a 

prima facie case that her requested relief would be in the 

children’s best interest. By the time of the section 388 petition, 

the children had been in a stable placement with paternal aunt 

and uncle for over two years, and those caregivers had been 

selected as the prospective adoptive parents. Mother had not 

been the children’s primary caregiver since before January 2020, 

that role being assumed at various times by father, maternal 

aunt, and finally paternal aunt. Instead, mother’s contact with 

the children during the four-year pendency of this case had been 

limited to visitation, the majority of which was monitored. As the

court-appointed expert witness evaluator concluded, continued 

custody of the children by either parent was likely to result in 

serious emotional or physical damage to the children. Thus, it 

was not unreasonable for the juvenile court to reject mother’s 

assertion that further participation in reunification services 

would operate to mitigate such risks in the future and conclude 

that the children’s best interest would not be served by further 
15

attempts at reunification and the resulting delay in 

implementation of the permanent plan.

IV. DISPOSITION

The order denying the section 388 petition is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

We concur:

BAKER, Acting P. J.

MOOR, J.