On appeal, maternal grandmother claims the finding that her visits were
detrimental to the children and the order denying her further visitation violated her
constitutional right to due process because the juvenile court acted on the oral motion of
counsel for the children, and without first complying with the procedural requirements
for modifying or changing an order pursuant to section 388. Because grandparents like
maternal grandmother who are not acting in a parental role have no constitutionally
protected right to visit dependent children, maternal grandmother’s due process challenge
must fail. In addition, as a matter of state law the juvenile court had the authority to act
on its own motion to modify the visitation order that applied to maternal grandmother,
notwithstanding minor’s counsel failure to petition the court pursuant to section 388, and
we find the error, if any, was harmless.
In addition, grandmother argues the juvenile court’s order that she receive no
further visitation with the children and the order summarily denying her section 388
petition were abuses of discretion. We conclude substantial evidence supports the court’s
1 All undesignated statutory references are to the Welfare and Institutions Code.
2
finding that visits with maternal grandmother were detrimental to the children’s well-
being, and that the orders that she receive no further visits and summarily denying her
petition were not abuses of discretion. Therefore, we affirm the orders.
I.
FACTS AND PROCEDURAL BACKGROUND
After investigating a referral for possible neglect of the children by mother, San
Bernardino County Children and Family Services (CFS) removed the children from
mother’s home and filed petitions in the juvenile court alleging the children were
dependents under section 300.
At the detention hearing, the juvenile court ordered the children detained and
ordered the parents to receive visitation. The court also granted CFS the authority to
provide visits to relatives, “as appropriate.”
In its report for the combined jurisdiction/disposition hearing, CFS recommended
the juvenile court find true the allegations in the petition, detain the children, and order
family reunification services for both parents. Both parents were interviewed and denied
having concerns with themselves while expressing concerns about the children’s safety
with the other parent. Father appeared to be forthcoming about concerns related to his
responsibility for the children’s removal, whereas mother appeared to minimize any
concerns regarding her conduct. Mother identified her parents as her support network.
3
Both children reported they felt safe in mother’s home, but it was sometimes scary
when mother and her live-in boyfriend fought. They also reported feeling safe with
father.
When interviewed by the social worker, maternal grandmother reported she often
watched the children and picked them up from school. Maternal grandmother indicated
father visited the children two days a week for about four hours, but it was paternal
grandmother who would care for the children during his visits. Maternal grandmother
said she believed father “is trying to take [mother] down because of the child support
issue.” When the social worker asked if the children were safe with father, maternal
grandmother replied, “I don’t know. I feel he needs to be supervised. I am not sure if
they’re safe, but he needs to drug test.” She also said she believed father was “sitting on
the sidelines waiting for [mother] to fail.”
At the combined jurisdiction/disposition hearing, the juvenile court continued the
matter for mediation and a contested hearing on CFS’ recommendations. The court
reiterated authority for CFS to provide relative visits, as appropriate.
After the mediation, both parents agreed to receive family reunification services.
Father indicated he had no objection to the children’s current placement in paternal
grandmother’s home. Mother indicated she was requesting the children be returned to
her care on family maintenance in the home of the maternal grandmother.
During the continued hearing, both parents waived their rights to a contested
hearing and submitted to the allegations and recommendations for disposition as stated in
4
the mediation report. The juvenile court found the allegations to be true, declared the
children to be dependents of the juvenile court, ordered them removed from the parents’
custody and directed CFS to provide the parents with reunification services and visits.
Counsel for CFS informed the court that the children had been placed in the paternal
grandmother’s home and the paternal grandfather was assisting in caring for the children.
The court again reiterated CFS had authority to provide for relative visits, as appropriate.
On September 13, 2023, CFS provided the juvenile court with an information
update. The social worker reported both parents had complied with their case plans, they
were doing well with their family reunification services, and their visits with the children
were consistent and going well. However, the social worker reported she had expressed
concerns to mother about maternal grandmother’s “constant interference in the visitation
schedule set up for the parents.” Mother said she had decided to limit contact due to
maternal grandmother’s “over involvement.” Mother reported the ways “she would
prevent . . . the maternal grandmother [from] interfering with her ability to coparent with
the father appropriately.”
In the report filed on December 6, 2023, for the six-month review hearing, CFS
recommended the children be returned to father’s physical custody with family
maintenance services and mother continue to receive family reunification services. The
children had been placed in the home of their paternal grandmother, which “allows for
the children to remain with family and have contact with extended family.” The social
worker reported the paternal grandmother had provided the children with a safe and
5
stable home, she was willing to make any changes necessary to accommodate visits by
mother and father, and she had demonstrated she was supportive of reunifying the
children “with either parent as long as it is deemed safe.” The social worker reported
visits with both parents were going well and both children said they enjoyed their visits
and felt safe with both parents.
The social worker reported that during a July 2023 meeting to address visits with
the children and to establish a support network for the family, it became clear that father
and maternal grandmother had a difficult relationship. Father and maternal grandmother
were asked to focus on the topics at hand and not “point fingers.” The parents “had to
intervene and address the maternal grandmother about how her open anger directed
towards the father and the paternal side of the family was going to create emotional
distress for the children.” After discussing how the children were adjusting to their
placement in paternal grandmother’s home, everyone at the meeting was given an
opportunity to address any concerns. Maternal grandmother “blurted out her dislike for
the father.” The meeting devolved into everyone loudly talking over each other, so the
meeting was terminated, and another one was set to discuss issues regarding visitation.
In subsequent months, the social worker had several meetings with the parents and
with the maternal grandmother to discuss visitation. Father reported he was concerned
maternal grandmother’s repeated requests to meet with CFS and her demands for
visitation days was interfering with his own visitation. Father said, “he should be able to
take his children to a movie or a school event without the maternal grandmother calling
6
CFS [and] demanding that his visits with his children be stopped.” The social worker
reported she had repeatedly met with maternal grandmother and had told her the parents
had case plans “and that visitation is high on the priority list for parents as part of the
reunification process.” In addition, mother had informed the social worker that she had
attempted to speak to maternal grandmother about her interfering with visits, but the
conversations did not go well.
During an October 2023 meeting with the parents and both grandmothers to
discuss visitation, maternal grandmother was again told that visitation by the parents
“was a priority.” Maternal grandmother questioned why father had been given more
visitation than mother, when in the past she and mother had cared for the children. The
meeting was canceled when it devolved into loud and disrespectful name-calling.
The next month, a failure of communication between the paternal and maternal
grandmothers, and N.M.’s desire not to visit with maternal grandmother that day, resulted
in an altercation when both grandmothers tried to pick up the children from their school
on a Friday. In a subsequent meeting with mother and maternal grandmother, the social
worker and a supervisor told maternal grandmother that CFS would not accede to her
demands that Fridays were exclusively hers for visits and that she be provided with
documentation to that effect. “She was informed that the parents’ visitation schedules
have changed as they have progressed in the case and when the children request to see
their parents on a Friday that may interfere with her desire to take the children.”
Maternal grandmother was also informed that N.M. had said he is not afraid of either
7
grandmother “but he does not want to spend time with the maternal grandmother.”
Separately, the social worker spoke to the children about the altercation. R.M. said she
was not afraid or concerned about the incident, but N.M. said he was scared. N.M. had
not planned to go with the maternal grandmother that day, but when the paternal
grandmother left and mother stood next to him and said nothing, he had no choice but to
go with maternal grandmother.
The social worker reported she was concerned that mother had difficulty setting
boundaries with maternal grandmother. When she was angry or frustrated about the case,
mother would call the maternal grandmother—which often resulted in the maternal
grandmother excessively calling and texting the social worker and demanding to be seen.
Mother had made progress in her case plan, and she was nurturing and caring toward the
children. But mother had not adequately addressed the fact that, although N.M. was
happy to see her during visits, he did not feel safe having unsupervised visits with her or
visits that included maternal grandmother. Mother initially reported she had no idea why
N.M. did not want to visit with maternal grandmother. But when the social worker
informed mother that N.M. had said he had told mother several times why he did not
want to stay at maternal grandmother’s home, mother responded, “Well I know he has[,]
but its not because he is afraid of her. Sometimes my mother would just show up at my
house and take them.”
During the scheduled six-month review hearing conducted December 13, 2023, at
which mother was present, the juvenile court granted minor’s counsel’s request to set the
8
matter for a contested hearing on the social worker’s recommendation that the children be
returned to father’s custody. In addition, minor’s counsel requested the court find that
based on the information contained in the social worker’s report, visits with maternal
grandmother were detrimental to the children. “It’s very concerning to me that she is
having confrontations with the current caregiver at the children’s school. The children
have also expressed that they do not want to have visits with her, and I do believe that her
behaviors and her demanding of visits is interfering with the parents’ potential to
reunify.” The court found visits with the maternal grandmother were detrimental to the
children’s physical or emotional well-being and there would be “no visits for her.” The
court also granted a request that the children’s caregiver be authorized to release the
minute order from the hearing to the children’s school “so they know [maternal]
Grandmother cannot be there.” Mother’s counsel indicated “Mom has no issue” with the
latter ruling.
On January 12, 2024, maternal grandmother filed a petition pursuant to section
388 seeking to change the juvenile court’s finding that visitation with her was detrimental
to the children and its ruling that she have no further visitation. Maternal grandmother
requested the court enter a new visitation order for relatives that has clear guidelines to
avoid further conflict between her and the paternal grandparents and school officials.
Maternal grandmother contended she had been a consistent source of comfort and joy to
the children and had taken care of them three days a week, but, other than vaguely
alleging the lack of visits had created a vacuum in the children’s lives, she stated no
9
changed circumstances that had arisen since the court’s December 13, 2023, order. The
only new evidence she presented was a letter from the principal of the children’s school
that described the incident on campus in which both grandmothers engaged in an
inappropriate verbal altercation, resulting in both being banned from volunteering on
campus for safety reasons; a letter from the parent of another student about how maternal
grandmother’s volunteer work benefited the school and its students; and a letter from a
family friend that accused in vague terms father’s family of manipulating the children.
Moreover, when addressing whether a change in order would be in the best interest of the
children, the petition stated in general terms that her continued involvement in the
children’s lives was critical to their development. At most, the petition alleged a sudden
change in the children’s routine “can be disorienting and emotionally disruptive,” and
unnecessary restrictions on her involvement in their lives “could exacerbate existing
tensions” in the family “and potentially create confusion for the children.” (Italics
added.)
On January 19, 2024, the juvenile court found maternal grandmother’s petition did
not state new evidence or changed circumstances, and that the proposed change in order
was not in the best interest of the children. Therefore, the court summarily denied the
petition.
Maternal grandmother appealed.2
2 Maternal grandmother’s notice of appeal (Judicial Council Forms, form JV-800) filed February 9, 2024, stated she was appealing from an order entered January 19, 2024, which corresponds to the juvenile court’s order summarily denying her section 388 [footnote continued on next page]
10
II.
DISCUSSION
A. The Juvenile Court Did Not Violate Maternal Grandmother’s Due Process
Rights.
Maternal grandmother argues minor’s counsel was required to file and serve a
petition for change of order pursuant to section 388 before the juvenile court could find
that visits with her were detrimental to the children and should cease, and the failure to
comply with that procedure violated her due process rights. We must reject this claim of
error because maternal grandmother fails to make the threshold showing of identifying a
constitutionally protected interest that the juvenile court’s order allegedly violated, and
because the juvenile court had the authority to modify the relative visitation order even in
the absence of a section 388 petition, so any state law error was harmless.
“The federal and state Constitutions forbid the government from depriving an
individual of life, liberty, or property without due process of law. (U.S. Const., 14th
Amend. [‘nor shall any State deprive any person of life, liberty, or property, without due
petition. However, although she correctly checked the box for “Section 388 (request to change court order)” when indicating the type of order she was appealing, she erroneously stated the date of the hearing (there was no hearing) was December 13, 2023, which corresponds to the juvenile court’s earlier order that she receive no further visitation. The notice of appeal was timely filed less than 60 days after the entry of the December 13, 2023, and January 19, 2024, orders. (Cal. Rules of Court, rule 8.104(a).) Moreover, because it is reasonably clear from the notice that maternal grandmother intended to appeal from both orders and not merely from the January 19, 2024, order, and because we perceive no prejudice to CFS from any ambiguity in the notice, we liberally construe the notice to address both orders. (Cal. Rules of Court, rule 8.405(a)(3); In re J.F. (2019) 39 Cal.App.5th 70, 75-76.)
11
process of law’]; Cal. Const., art. I, § 7, subd. (a) [‘A person may not be deprived of life,
liberty, or property without due process of law’].)” (In re Harris (2024) 16 Cal.5th 292,
322.) “‘The essence of due process is the requirement that “a person in jeopardy of
serious loss [be given] notice of the case against him and opportunity to meet it.”’”
(Today’s Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th
197, 212 (Today’s Fresh Start), quoting Mathews v. Eldridge (1976) 424 U.S. 319, 348.)
“‘The first inquiry in every due process challenge is whether the [party asserting
the challenge] has been deprived of a protected interest in “property” or “liberty.”
[Citations.] Only after finding the deprivation of a protected interest do we look to see if
the State’s procedures comport with due process.’” (Today’s Fresh Start, supra, 57
Cal.4th at p. 214, quoting American Manufacturers Mutual Insurance Co. v. Sullivan
(1999) 526 U.S. 40, 59.) If no protected interest (life, liberty, or property) has been
implicated by the governmental act, “then the procedural protections of the due process
clause do not come into play.” (Community Youth Athletic Center v. City of National
City (2013) 220 Cal.App.4th 1385, 1432.)
“Courts have generally rejected the proposition that grandparents, in their capacity
as grandparents and without more, have a constitutionally protected interest in their
relationship with the grandchild.” (In re C.P. (2020) 47 Cal.App.5th 17, 27, italics added
[holding application of absolute bar to placement of dependent child in grandparents’
custody would violate due process if grandparents proved a parental relationship with the
child].) “[A] noncustodial grandparent of dependents of the juvenile court . . . has no
12
substantive due process right to free association with the minors, or to maintain a
relationship with them. The rights of grandparents to assert control over their
grandchildren are restricted by state juvenile jurisdiction to determine and protect the best
interests of dependent minors. (See Troxel v. Granville (2000) 530 U.S. 57, 60, 64-66,
69-73 . . . [grandparents have no constitutional right to visitation over the objections of
fit, custodial parents]; Miller v. California (9th Cir. 2004) 355 F.3d 1172, 1175-1176
[despite their de facto parent status under California law, noncustodial grandparents of
children who are dependents of the juvenile court have no substantive due process
constitutional right to family integrity and freedom of association with their
[grandparents do not have any constitutionally protected substantive due process or other
liberty interest in the adoption of their children’s offspring].)” (In re Brittany K. (2005)
127 Cal.App.4th 1497, 1508.)
Visitation by grandparents is governed by statute. (In re Marriage of Harris
(2004) 34 Cal.4th 210, 219.) A grandparent does not have an absolute right to visit a
dependent child, only the right to have the juvenile court consider whether such visitation
shall occur. (In re J.P. (2019) 37 Cal.App.5th 1111, 1118; In re J.T. (2014) 228
Cal.App.4th 953, 962.) “If the court has ordered removal of the child from the physical
custody of the child’s parents pursuant to Section 361, the court shall consider whether
the family ties and best interest of the child will be served by granting visitation rights to
13
the child’s grandparents.”3 (§ 361.2, subd. (i); see Cal. Rules of Court, rule
5.695(a)(7)(C); see also § 16507, subd. (a) [Family reunification services provided by
social services agency “shall include a plan for visitation of the child by his or her
grandparents, where the visitation is in the best interests of the child and will serve to
maintain and strengthen the family relationships of the child.”].)
Here, there is no question the juvenile court had considered visitation with
maternal grandmother because it had previously authorized CFS to provide for visits with
relatives “as appropriate.” In her reply brief, maternal grandmother no longer argues she
has a constitutional right to continue visiting the children, and instead argues “the
juvenile court gave her that right” and it could not be taken away without complying with
the procedural requirements of section 388. But the court never affirmatively ordered
that maternal grandmother (or any other relative) be given visits or otherwise confer on
them the right to visit the children. At most, the juvenile court authorized CFS to
provide, as appropriate, visits to relatives. Because maternal grandmother—who never
had custody of the children and never claimed to have had a parental relationship with
them—had no protected interest in continued visits, she simply has not demonstrated the
juvenile court violated her due process rights when it terminated her visits on the oral
3 Additionally, section 362.4 authorizes the juvenile court to order visitation between a child and a grandparent when terminating dependency jurisdiction. (In re J.T., supra, 228 Cal.App.4th at p. 962.) Under that statute, “[i]f the juvenile court terminates its jurisdiction over a minor who has been adjudged a dependent child . . . the juvenile court on its own motion, may issue . . . an order determining the custody of, or visitation with, the child.” (§ 362.4, subd. (a).)
14
request of minors’ counsel and without requiring the formal filing and service of a section
388 petition.
Moreover, the juvenile court’s ruling on the oral motion of minor’s counsel was
harmless under state law. “Section 385 provides that any court order in a dependency
case ‘may at any time be changed, modified, or set aside, as the judge deems meet and
proper, subject to such procedural requirements as are imposed by this article.’ Section
386 mandates that the court refrain from exercising its discretion under section 385
unless the court has provided prior notice of the application to the social worker and the
child's counsel of record or, if there is no counsel of record, to the child and his parent or
guardian.” (Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 111, fn. omitted
(Nickolas F.).)
“Section 388 applies when ‘[a]ny parent or other person having an interest’ in a
dependent child, or the child (collectively, party) seeks a modification of a previous order
based on a change of circumstances or new evidence and the pertinent statutes do not
otherwise provide for modification. [Citations.] It is the appropriate procedural
mechanism to use when a party seeks modification of a previous order.” (Nickolas F.,
supra, 144 Cal.App.4th at p. 106.) “By its terms, section 388 applies only when a party
petitions the court for modification based on new evidence or changed circumstances.
Nothing in [In re Marilyn H. (1993) 5 Cal.4th 2954] or in the plain language of section
4 In In re Marilyn H., supra, 5 Cal.4th 295, the Supreme Court held that when a parent requests that the juvenile court modify an order based on changed circumstances, they must proceed pursuant to section 388. (Id. at p. 305.)
15
385 indicates that the Legislature intended to limit the juvenile court’s authority to
reconsider its previous orders to circumstances in which a party has filed a petition
pursuant to section 388.” (Nickolas F., at pp. 114-115.)
“[T]he juvenile court has the authority pursuant to section 385 to change, modify
or set aside its prior orders sua sponte. [Citations.] Under this section, the juvenile court
may modify an order that contains a clerical error, but may also reconsider the substance
of a previous order the court considers to have been erroneously, inadvertently or
improvidently granted.” (Nickolas F., supra, 144 Cal.App.4th at p. 116.) The juvenile
court must provide the parties with notice and an opportunity to be heard before
reconsidering or modifying an order. (Id. at p. 98; see id. at p. 111, fn. 16.)
Whether we construe the oral motion of minor’s counsel to be an invitation for the
juvenile court to exercise its sua sponte authority,5 or if we assume minor’s counsel
5 Although the juvenile court did not provide prior notice to the parties that it would act on its own motion to modify the relative visitation order as it applied to maternal grandmother, under the circumstances of this case the absence of notice was harmless. The parties to the proceeding were present at the hearing or represented at the hearing by counsel, they had the opportunity to be heard, and they entered no objections to the court’s ruling. Relatives are entitled to notice when a child is removed from the parents, to ensure the relatives are aware they may be considered for placement of the child. (§§ 309, subd. (e)(1), 361.3; see In re Maria Q. (2018) 28 Cal.App.5th 577, 591-592.) Generally, during the normal course of the proceedings only the parties, siblings, and caregivers are entitled to notice. “A party of record is a person named as a party to the proceedings or one who takes appropriate steps to become a party of record in the proceedings. [Citation.] A person does not become a party of record merely because his or her name and interest appear in documents filed with the court or are referenced in the judgment.” (In re Joseph G. (2000) 83 Cal.App.4th 712, 715.) Here, maternal grandmother was not the children’s caregiver, a party of record, or otherwise entitled to notice that the juvenile court would modify the relative visitation order. (See In re Miguel E. (2004) 120 [footnote continued on next page]
16
pursued the wrong procedural vehicle to modify the relative visitation order, we find no
prejudicial error. Presumably, had minor’s counsel filed a petition under section 388 to
request a finding of detriment and to deny maternal grandmother additional visits, the
petition would have relied on the same evidence of maternal grandmother’s conduct and
interference with visits as relayed to the juvenile court in the social worker’s reports. As
we conclude in the proceeding section, the juvenile court’s determination of the merits of
the oral motion “was fundamentally sound.” (Nickolas F., supra, 144 Cal.App.4th at
p. 119.) “A trial court’s judgment may not be set aside for procedural error unless the
error resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13.) If the court had
made the modification in this case sua sponte, through either its statutory authority
pursuant to section 385, or its constitutional authority under California Constitution,
article VI, section I, rather than pursuant to [the oral motion of minor’s counsel], the
result would have been the same.” (Nickolas F., at p. 119.) The procedural error, if any,
did not affect the validity of the order or result in a miscarriage of justice. (Ibid.)
B. The Juvenile Court Did Not Abuse Its Discretion by Terminating Visits with
Maternal Grandmother.
Maternal grandmother also contends the juvenile court abused its discretion when
it found her visits were detrimental to the children and denied her further visitation. We
are not persuaded.
Cal.App.4th 521, 539 [grandparents who did not apply for or achieve de facto parent status “were merely relatives, not parties.”].)
17
Until family reunification services are terminated, a primary goal of dependency
proceedings is to safely reunify dependent children with their families. (§§ 202,
subd. (a), 16500.1, subd. (a); In re T.G. (2010) 188 Cal.App.4th 687, 696.) Visitation
between parents and dependent children “‘is a critical component, probably the most
critical component, of a reunification plan.’” (Serena M. v. Superior Court (2020)
52 Cal.App.5th 659, 673.) Consistent with the well-being of the child, visitation with
parents must be as frequent as possible. (§ 362.1, subd. (a)(1)(A); Cal. Rules of Court,
rule 5.695(f)(3).) The juvenile court has authority to make “any and all reasonable
orders” to promote the child’s best interest (§ 362, subd. (a)), including fashioning
appropriate visitation orders. (In re Kayla W. (2017) 16 Cal.App.5th 409, 418; In re
Jasmin C. (2003) 106 Cal.App.4th 177, 180.)
Whether, and under what conditions, grandparental visitation occurs is within the
juvenile court’s discretion. When determining whether to authorize visits by
grandparents, the court’s primary criteria is whether the best interest of the child will be
served by such visits. (§ 361.2, subd. (i); In re J.P., supra, 37 Cal.App.5th at p. 1118
[Juvenile court may order visits with grandparents “if it is reasonably related to [the
child’s] care and is in his best interest.”].) The juvenile court can suspend or deny
visitation with any relative whose conduct is detrimental to the minor’s emotional and/or
physical well-being. (In re F.P. (2021) 61 Cal.App.5th 966, 973; In re T.M. (2016)
4 Cal.App.5th 1214, 1219-1220; In re Valerie A. (2007) 152 Cal.App.4th 987, 1005; see
§ 362.1, subd. (a)(1)(B) [“No visitation order shall jeopardize the safety of the child.”].)
18
If a grandparent unduly interferes with a parent’s ability to regularly visit the dependent
child—potentially jeopardizing family reunification—the court necessarily has discretion
to restrict or deny additional visits by the grandparent.6
The juvenile court’s visitation orders are reviewed for abuse of discretion. (In re
J.P., supra, 37 Cal.App.5th at p. 1119; In re J.N. (2006) 138 Cal.App.4th 450, 459.)
“The abuse of discretion standard warrants that we apply a very high degree of deference
to the decision of the juvenile court.” (In re J.N., at p. 459.) We determine whether the
order exceeded the bounds of reason and, in so doing, we cannot substitute our judgment
for that of the juvenile court. (In re Caden C. (2021) 11 Cal.5th 614, 641; In re
Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
A juvenile court’s finding that visitation would be detrimental to the child is
reviewed for substantial evidence. (In re F.P., supra, 61 Cal.App.5th at p. 973.)
“Substantial evidence is evidence that is ‘of ponderable legal significance,’ ‘reasonable in
nature, credible, and of solid value,’ and ‘“substantial” proof of the essentials which the
law requires in a particular case.’” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1006.)
Our role in conducting a review for sufficiency of the evidence is limited. We must
review the entire record in the light most favorable to the juvenile court’s order and draw
all reasonable inferences from the evidence that support it. We may not resolve conflicts
in the evidence, reweigh the evidence, or second guess the juvenile court’s express or
6 In addition, the social services agency has a duty to make some effort to overcome obstacles to a parent receiving reunification services, including visits. (See In re Alvin R. (2003) 108 Cal.App.4th 962, 973.)
19
implied determinations regarding the credibility of witnesses. (In re N.S. (2020)
55 Cal.App.5th 816, 847; In re K.B. (2015) 239 Cal.App.4th 972, 979.)
Here, the record contains substantial evidence to support the juvenile court’s
finding of detriment. The children reported they felt safe with both parents and enjoyed
visiting with them. But maternal grandmother’s statements as reflected in the
jurisdiction/disposition report indicate she questioned father’s motives for reunifying
with the children and his ability to safely visit them. The social worker reported maternal
grandmother constantly interfered in the parents’ visitation schedule, and mother reported
she had to limit contact because maternal grandmother was interfering in mother’s ability
to coparent with father. Father also reported that maternal grandmother’s constant and
repeated demands for more visits and to meet with CFS staff about visits was interfering
with his own ability to visit the children as frequently as possible.
During meetings between CFS staff and the family to discuss visitation issues and
a support network for the children, maternal grandmother made clear her dislike for and
lack of confidence in father, which resulted in the meetings being canceled after they
devolved in heated arguing and name-calling. Although CFS staff told maternal
grandmother on numerous occasions that visits by the parents were crucial to family
reunification and a high priority, and despite mother’s own attempts to intervene,
maternal grandmother continued to question the frequency of father’s visits and
demanded more for herself, including demanding that CFS guarantee in writing that she
would have exclusive visits on Fridays. The situation finally came to a head when a lack
20
of communication led to an altercation at the children’s school when both grandmothers
tried to pick up the children from school on a Friday.
From that evidence, the juvenile court could reasonably conclude maternal
grandmother was unduly interfering with the parents’ ability to visit the children, and that
her interference might jeopardize family reunification to the detriment of the children.
Moreover, although neither child said they were afraid of maternal grandmother, N.M.
expressly stated “he does not want to spend time with the maternal grandmother.”
Although not dispositive, a child’s own wishes and statements as reflected in the social
worker’s reports are strong evidence the juvenile court may consider when deciding
whether relative visits would be detrimental to the child’s well-being. (Cf. In re I.E.
(2023) 91 Cal.App.5th 683, 694 [Child’s wishes, though not determinative, “may be
highly relevant evidence when determining whether termination of parental rights will be
detrimental to the child.”].)
Considering the substantial evidence that visits with maternal grandmother were
detrimental to the children’s physical or emotional well-being, we find the juvenile
court’s order that she have no further visits was not an abuse of discretion.
C. The Juvenile Court Did Not Abuse Its Discretion by Summarily Denying
Maternal Grandmother’s Section 388 Petition.
Last, maternal grandmother argues the juvenile court abused its discretion when it
summarily denied her section 388 petition because it found she had made an insufficient
21
showing of new evidence or changed circumstances and that a new order permitting her
to visit the children would be in their best interests. We find no error.
“Section 388 allows a person having an interest in a dependent child of the
juvenile court to petition the court to change, modify, or set aside a prior order on the
grounds of changed circumstances or new evidence. (§ 388, subd. (a).)” (In re R.F.
(2023) 94 Cal.App.5th 718, 728.) “A section 388 petition must make a prima facie
showing of entitlement to relief in order to trigger the right to an evidentiary hearing on
the petition. [Citation.] The petition may be denied without a hearing ‘only if the
[petition] fails to reveal any change of circumstance or new evidence which might require
a change of order.’” (Ibid.; see Cal. Rules of Court, rule 5.570(d)(1) [Juvenile court may
deny § 388 petition “ex parte” if it “fails to state a change of circumstance or new
evidence that may require a change of order . . . or fails to show that the requested
modification would promote the best interest of the child, nonminor, or nonminor
dependent.”].)
“A ‘prima facie’ showing [under section 388] refers to those facts which will
sustain a favorable decision if the evidence submitted in support of the allegations by the
petitioner is credited.” (In re Edward H. (1996) 43 Cal.App.4th 584, 593.) “‘“[T]he term
‘new evidence’ in section 388 means material evidence that, with due diligence, the party
could not have presented at the dependency proceeding at which the order, sought to be
modified or set aside, was entered.”’” (In re Matthew M. (2023) 88 Cal.App.5th 1186,
1195, italics added.) New evidence is material if it may require the juvenile court to
22
change the order. (See Cal. Rules of Court, rule 5.570(a)(7), (d)(1).) “Furthermore, the
petitioner must show changed, not changing, circumstances.” (In re Mickel O. (2011)
197 Cal.App.4th 586, 615.) “The case law’s references to ‘changed’ and merely
‘changing’ circumstances are another way of describing the distinction . . . between
changes that are material and those that are not. However expressed, the point is that
section 388 requires a change that is relevant and substantial (rather than irrelevant or de
minimis) when considered in light of all of the circumstances of the case.” (In re N.F.
(2021) 68 Cal.App.5th 112, 121, fn. 3.)
Although the juvenile court must liberally construe the petition in favor of its
sufficiency (Cal. Rules of Court, rule 5.570(a)), “the allegations must nonetheless
describe specifically how the petition will advance the child’s best interests.” (In re G.B.
(2014) 227 Cal.App.4th 1147, 1157; see In re K.L. (2016) 248 Cal.App.4th 52, 62; In re
Ramone R. (2005) 132 Cal.App.4th 1339, 1349.) “If a petitioner could get by with
general, conclusory allegations, there would be no need for an initial determination by the
juvenile court about whether an evidentiary hearing was warranted. In such
circumstances, the decision to grant a hearing on a section 388 petition would be nothing
more than a pointless formality.” (In re Edward H., supra, 43 Cal.App.4th at p. 593; see
ibid. [“[V]ague and evasive section 388 petitions” do not trigger a hearing.].)
“We review a summary denial of a hearing on a modification petition for abuse of
discretion. [Citation.] Under this standard of review, we will not disturb the decision of
the trial court unless the trial court exceeded the limits of legal discretion by making an
23
arbitrary, capricious or patently absurd determination.” (In re A.S. (2009) 180
Cal.App.4th 351, 358.)
The juvenile correctly found maternal grandmother did not submit new evidence
in support of her request for a new or different order. The letter from the school principal
provided some additional facts regarding the altercation between the grandmothers, such
as the fact they were both subsequently barred from volunteering on campus for safety
reasons. But overall, the letter merely supplemented the social worker’s report and did
not call into question the remainder of the evidence recounted ante of maternal
grandmother’s constant interference in the parent’s visitation and her persistent demands
for additional visits. The letter from the parent of another student informed the juvenile
court about maternal grandmother’s positive contributions to the school, but it bore no
relevance to the question of maternal grandmother’s conduct regarding visitation. And
the letter from the family friend contained no relevant facts whatsoever. Therefore, even
if the evidence was new, it was not material. (In re Matthew M., supra, 88 Cal.App.5th
at p. 1195.)
Likewise, the juvenile court correctly found maternal grandmother did not allege
changed circumstances. Maternal grandmother alleged that in the past she had been a
consistent source of support for the children, but she only vaguely alleged that, since her
visits ended, a vacuum had been created in the children’s lives. She did not allege, for
example, that the children had suffered in any concrete way from the absence of her
visits. In other words, maternal grandmother did not sufficiently allege a material change
24
in circumstances, meaning a relevant and substantial change that mandated she once
more be given visits. (In re. N.F., supra, 68 Cal.App.5th at p. 121, fn. 3.)
Finally, even if maternal grandmother had sufficiently alleged new evidence or
changed circumstances, the juvenile court correctly found she had not alleged a
reinstatement of her visits would be in the best interest of the children. Maternal
grandmother alleged in very general terms the benefits to children from having
grandparents active in their lives, but she did not allege with any specificity how the
children would benefit from continued visits with maternal grandmother. At most she
alleged that a sudden change in a child’s routine “can be disorienting and emotionally
disruptive,” and that unnecessary restrictions on her involvement in the children’s lives
“could exacerbate existing tensions” within the family “and potentially create confusion
for the children.” (Italics added.) Those vague and conclusory allegations were
insufficient to show that additional visits with maternal grandmother would be in the best
interest of the children. (In re G.B., supra, 227 Cal.App.4th at p. 1157; In re Edward H.,
supra, 43 Cal.App.4th at p. 593.)
In sum, we conclude the juvenile court did not abuse its discretion when it
The juvenile court’s orders denying maternal grandmother further visitation and
summarily denying her section 388 petition are affirmed.
25
CERTIFIED FOR PUBLICATION McKINSTER Acting P. J.
We concur:
CODRINGTON J. RAPHAEL J.
26
AI Brief
AI-generated · verify before citing
Holding. Grandparents who do not act in a parental role lack a constitutionally protected interest in visiting dependent children, and the juvenile court has the authority to modify visitation orders sua sponte under Welfare and Institutions Code section 385.
Issues
Whether a non-custodial grandparent has a constitutionally protected due process right to visit dependent children.
Whether the juvenile court may modify a visitation order on an oral motion without a formal section 388 petition.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Because grandparents like maternal grandmother who are not acting in a parental role have no constitutionally protected right to visit dependent children, maternal grandmother’s due process challenge must fail.”
“[T]he juvenile court has the authority pursuant to section 385 to change, modify or set aside its prior orders sua sponte.”