In re J.M. CA4/1

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re J.M., a Person Coming Under D082502
the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH (Super. Ct. No. J521176)
AND HUMAN SERVICES
AGENCY,

Plaintiff and Respondent,

v.

P.M.,

Defendant and Appellant.

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
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.

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