California Court of Appeal Dec 15, 2025 No. E086422Unpublished
Filed 12/15/25 In re M.P. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re M.P., a Person Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E086422
Plaintiff and Respondent, (Super.Ct.No. J302143)
v. OPINION
M.P.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Lynn M. Poncin,
Judge. Affirmed.
Jenie S. Chang, under appointment by the Court of Appeal, for Defendant and
Appellant.
Laura Feingold, County Counsel, and Joseph R. Barrell, Deputy County Counsel,
for Plaintiff and Respondent.
1
INTRODUCTION
In this dependency matter, Mercedes P. (Mother) filed a Welfare and Institutions
Code1 section 388 petition, seeking the return of her infant daughter M.P. with family
maintenance services, or alternatively, family reunification services. The juvenile court
summarily denied the petition. It then terminated Mother’s parental rights following a
Mother appeals. She contends the juvenile court erred by denying her section 388
petition without holding an evidentiary hearing and by terminating her parental rights.
We affirm.
BACKGROUND2
Mother’s Prior Dependency Proceedings
Before M.P. was born, Mother had three other children removed from her care.
A.U. (age 8) and M.A. (age 1) were removed from Mother in January 2020, following
allegations of sexual abuse of A.U., physical abuse of M.A., domestic violence, and
Mother’s substance abuse. E.P., who was born in August 2020, was removed from
Mother a few days after he was born, due to Mother’s continued substance abuse and
1 All further statutory references are to the Welfare and Institutions Code unless noted otherwise.
2 Our procedural history does not address the efforts the San Bernardino County Children and Family Services (CFS) made to comply with the Indian Child Welfare Act of 1978 (ICWA) and related California law. (25 U.S.C. § 1901 et seq.; § 224 et seq.) However, we will note that CFS inquired of several relatives, both on the maternal and paternal sides, and the juvenile court ultimately found ICWA does not apply. Mother does not challenge the court’s ICWA finding.
2
child welfare history. Mother was granted reunification services for all three children,
but never successfully reunited with them and her reunification services were terminated.
Mother’s parental rights were terminated as to M.A. and E.P. in April 2022. A.U. was
placed with her father, and her dependency proceeding was dismissed in February 2022.
The Current Investigation and Detention
On September 6, 2024—the day after M.P. was born—CFS received a referral
alleging general neglect based on Mother’s history of drug use while pregnant with M.P.
Mother was reported to have tested positive for methamphetamine and amphetamine at a
prenatal appointment in February 2024, and to have disclosed that despite knowing she
was pregnant, she continued to use methamphetamine daily and to drink alcohol every
weekend, until around May 2024 when she quit “cold turkey.” It was also reported that
M.P.’s father was not involved.
CFS initiated an investigation. Mother confirmed that M.P.’s father was not
involved. M.P.’s father was a man named Oliver. Mother did not know Oliver’s last
name, and she no longer had his contact information. The last time Mother spoke with
Oliver was a few months before M.P. was born.
As to her substance use, Mother told the social worker that she started using
methamphetamine in 2017. She initially stopped in 2020 but began using again in 2022
after her parental rights were terminated to two of her other children. By January 2024,
when Mother found out she was pregnant with M.P., she was using methamphetamine on
a daily basis. Mother reported that she stopped drinking alcohol in January 2024 due to a
kidney infection, but she continued to use methamphetamine daily until March 2024.
3
She then reduced her use “to about one to two times per week” until she was able to quit
in May 2024. Mother also used cocaine on at least one occasion while she was pregnant
with M.P.
Mother and M.P. both tested negative for substances when M.P. was born. A
week later, on September 12, 2024, Mother tested positive for opiates. CFS obtained a
detention warrant the next day. M.P. was still in the hospital at the time, with an
unknown discharge date. M.P. had been admitted to the neonatal intensive care unit after
she was born due to her low blood sugar and difficulty feeding. M.P. was born with
hypoglycemia, which is common for a child born to a diabetic mother.
On September 17, 2024, CFS filed a dependency petition with allegations under
section 300, subdivisions (b)(1), (g), and (j). The petition alleged that Mother had an on-
going substance abuse problem (b-1), that the father’s whereabouts and ability to provide
care and support to M.P. were unknown (b-2 & g-3), and that three of M.P.’s half-
siblings had previously been removed from Mother due to concerns of abuse and/or
neglect, thus placing M.P. at a similar risk of harm (j-4).
On September 18, 2024, the juvenile court ordered M.P. detained. The court
authorized supervised visitation on a weekly basis and ordered predisposition services for
Mother.
Jurisdiction and Disposition
In October 2024, Mother provided the social worker with documentation that she
had enrolled in parenting classes, therapy, and an outpatient substance abuse program.
Mother also provided a medical record that showed she had been prescribed
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hydrocodone-acetaminophen for pain at a “post C-section” medical appointment on
September 10, 2024. Mother told the social worker that the reason she tested positive for
opiates on September 12 was because she took the medication as prescribed.
Mother took two drug tests in October 2024—one was negative, and one was
positive for ethanol. Also in October, Mother began her supervised visits with M.P. CFS
did not note any concerns with Mother’s visits throughout the month of October.
At the combined jurisdiction and disposition hearing on October 28, 2024,
Mother’s counsel requested the b-1 allegation be amended to proof. Counsel argued that
Mother had been sober for about six months, and there was an explanation for her
positive drug and alcohol tests—the positive drug test was due to Mother’s prescribed
medication, and the positive ethanol test was because Mother was diabetic. The court
noted there had not been any evidence that the positive ethanol test was the result of
Mother being diabetic, but it otherwise granted Mother’s request. The court amended the
b-1 allegation to allege that Mother has a history of substance abuse and a current alcohol
problem which negatively impacts her ability to provide for and protect the child. As
amended, the court sustained the b-1 allegation. It sustained the remaining allegations as
written.
As to disposition, the court heard testimony from Mother that about three weeks
earlier, she had enrolled in an outpatient substance abuse program, individual counseling
and a parenting program. Mother acknowledged that she used methamphetamine for the
first five months of her pregnancy, but maintained she had not used any illegal substances
since May 20, 2024, and she had not consumed any alcohol since January 2024. Mother
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also acknowledged that she did not successfully complete drug and alcohol programming
in the prior dependency proceedings. Mother attended two substance abuse programs
during the course of prior proceedings. She completed the first program in 2020, and
then started a second program, which she did not complete. She dropped out with only a
few sessions remaining, and then relapsed in 2022.
After hearing Mother’s testimony and argument from counsel, the juvenile court
followed the recommendation to bypass Mother’s reunification services under section
361.5, subdivision (b)(10) and (b)(11). The court found Mother’s reunification services
and parental rights had previously been terminated as to M.P.’s half-siblings, and Mother
had not subsequently made a reasonable effort to treat the problems that led to removal.
The court focused primarily on Mother’s substance abuse issue, noting “that the same
issue involving the history of substance-abuse is a reoccurring theme regarding [Mother]
and her children.”
The court also found that Oliver, last name unknown, was the alleged father and
was not entitled to reunification services.
The court initially set the section 366.26 hearing for February 2025, but it was
later continued to June 26, 2025.
Mother’s Section 388 Petition
On June 26, 2025, Mother filed a section 388 petition seeking the return of M.P.
with family maintenance services, or alternatively, family reunification services.
Mother’s petition alleged she had been clean for the past seven months, since
November 30, 2024; she had completed parenting and domestic violence awareness
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programs; and she was enrolled in an outpatient substance abuse treatment program, with
a possible graduation date of July 31, 2025. The petition further alleged that Mother had
been consistently visiting M.P. since the inception of the case, and it would be in M.P.’s
best interest to have her biological mother raise her. In support of her allegations, Mother
attached a progress report from the substance abuse treatment program and certificates
that showed she had completed a 20-week domestic violence awareness program and a
16-session parental education program.
The juvenile court summarily denied Mother’s petition without holding a hearing.
The court concluded the petition did not state new evidence or a change of circumstances,
nor was the proposed change in M.P.’s best interest. The court noted Mother had “a
lengthy history of substance abuse issues” and that the documentation she provided stated
she had a “‘possible graduation date [of] July 31, 2025’” from the substance abuse
program. The court found Mother had only demonstrated “changing” circumstances.
The Section 366.26 Report and Hearing
CFS filed the section 366.26 report on June 13, 2025. By that time, M.P.’s alleged
father Oliver V. had appeared in court, and a court-ordered paternity test established that
he was M.P.’s biological father.
The section 366.26 report recommended the court terminate the parents’ parental
rights and order a permanent plan of adoption. M.P. was nine months old when the
report was filed and did not have any medical, developmental, or emotional issues that
would prevent her adoption. She was crawling, pulling herself up, and able to stand with
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assistance. The only identified need was for occupational therapy “to address some
shakiness when she reaches for things.”
The report stated M.P. had been living with her current caregivers, the maternal
uncle and his wife, for the past six months, since December 19, 2024. M.P. “appear[ed]
to be happy, well taken care of” and had demonstrated “a positive attachment with the
caregivers.” The caregivers were also reported to have “developed a mutual attachment”
with M.P. The caregivers wanted to adopt M.P. and were committed to raising her to
adulthood. They were willing to maintain a relationship with Mother, provided there
were “boundaries and rules.” They were less willing to maintain a relationship with
M.P.’s father. The maternal uncle felt M.P.’s father, “‘should have stepped up … [and]
provided for her.’”
The report also stated that Mother has been consistent in visiting M.P., and that the
visits have been positive, with no concerns noted. The social worker described Mother
bringing age-appropriate toys to the visits and encouraging M.P. to crawl. When M.P.
would get fussy, Mother would “gently rock[] and sway[] [M.P.] to calm her down.” The
social worker noted that during the initial exchange from the caregiver to Mother, M.P.
“does not cry and appears to be happy during the exchange.” However, at the end of the
visits, M.P. “has been observed to reach her arms out to the caregiver.”
The contested section 366.26 hearing was held on June 26, 2025.3 Mother
testified that she has been consistently visiting M.P. since the beginning of the case and
3 The clerk’s transcript identifies the date of the hearing as June 26, 2025. The reporter’s transcript identifies the date of the hearing as June 25, 2025.
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has not missed any visits. Mother brings toys with her to the visits and a blanket for the
floor. Mother said she feeds M.P., changes her, talks to her, soothes her, and sings and
dances with her. Mother also said that when M.P. sees Mother, she smiles. M.P. taps
Mother and puts her head on Mother’s chest. When the visits end, M.P. looks back at
Mother and throws her arms at Mother.
Following Mother’s testimony, CFS and M.P.’s counsel requested the court
terminate parental rights and set a permanent plan of adoption. Both parents requested
legal guardianship. Mother argued that she met the parental-benefit exception to
adoption, as set forth in In re Caden C. (2021) 11 Cal.5th 614 (Caden C.).
Having considered the evidence, the court found M.P. was both generally and
specifically adoptable. It also found that most of Mother’s testimony was consistent with
the section 366.26 report; although one discrepancy the court noted was at the end of the
visits the social worker reported M.P. had been observed reaching her arms out to the
caregiver.
The court found Mother met the first element of the parental-benefit exception
because she maintained regular visitation and contact with M.P., but she did not meet the
second or third elements of the exception. As to those elements, the court found that
M.P. was less than a year old and was only in Mother’s custody for a brief period of time.
The court explained that when such a young child has never lived in the parent’s care, the
law requires the parent to “show more than positive supervised visits to trigger the
exception.” “There must also be evidence that the child will suffer detriment if the
parent/child relationship is severed.” The court found, “[t]here has been no evidence
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presented that there is a relationship between [M]other and [M.P.] that … would benefit
[M.P.] to such a degree that termination of parental rights would be detrimental to
[M.P.].” Having so found, the court terminated both parents’ parental rights.
Mother timely filed a notice of appeal.
DISCUSSION
A. Section 388 Petition
Mother contends the juvenile court abused its discretion and violated her due
process rights by summarily denying her section 388 petition without holding an
evidentiary hearing. Mother asserts the error cannot be deemed harmless because her
petition stated a prima facie case for relief. As we explain, we disagree.
Section 388 allows a parent, “upon grounds of change of circumstance or new
evidence” to petition the juvenile court “for a hearing to change, modify, or set aside any
order of court previously made.” (§ 388, subd. (a)(1).) “If it appears that the best
interests of the child … may be promoted by the proposed change of order, … the court
shall order that a hearing be held.” (§ 388, subd. (d).)
Section 388 petitions are to be liberally construed in favor of granting a hearing.
(In re Marilyn H. (1993) 5 Cal.4th 295, 309; Cal. Rules of Court, rule 5.570(a).)
However, to obtain “a full hearing” on a section 388 petition, the parent must make a
prima facie showing of their entitlement to relief. (In re Marilyn H., supra, at p. 310.)
This is done by alleging facts, that “if supported by evidence given credit at the hearing,
would sustain a favorable decision on the petition.” (In re J.P. (2014) 229 Cal.App.4th
108, 127.)
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“There are two parts to the prima facie showing: The parent must demonstrate (1)
a genuine change of circumstances or new evidence, and that (2) revoking the previous
order would be in the best interests of the children.” (In re Anthony W. (2001) 87
Cal.App.4th 246, 250.) The parent must make a prima facie showing on both elements to
trigger an evidentiary hearing on the petition. (In re Zachary G. (1999) 77 Cal.App.4th
799, 806.) “It is not enough for a parent to show just a genuine change of circumstances
under the statute. The parent must show that the undoing of the prior order would be in
the best interests of the child.” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) “If
the liberally construed allegations of the petition do not show changed circumstances
such that the child’s best interests will be promoted by the proposed change of order, the
dependency court need not order a hearing.” (In re Anthony W., supra, at p. 250; Cal.
Rules of Court, rule 5.570(d)(1).) In this respect, section 388 “provides a means for the
court to address a legitimate change in circumstances while protecting the child’s need
for prompt resolution of his [or her] custody status.” (In re Marilyn H., supra, 5 Cal.4th
at p. 309.)
In assessing whether a petition has made a prima facie showing, the juvenile court
may consider the entire factual and procedural history of the case. (In re J.P., supra, 229
Cal.App.4th at p. 127.) Not every change in circumstance or new evidence will justify
modification of a prior order. (In re A.A. (2012) 203 Cal.App.4th 597, 612.) The change
in circumstance or new evidence “must relate to the purpose of the order and be such that
the modification of the prior order is appropriate. [Citation.] In other words, the problem
that initially brought the child within the dependency system must be removed or
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ameliorated.” (Ibid.; In re Angel B. (2002) 97 Cal.App.4th 454, 463–464.) It is not
enough for the parent to show that their circumstances are changing; a parent petitioning
for a hearing under section 388 “must show changed, not changing, circumstances.” (In
re Mickel O. (2011) 197 Cal.App.4th 586, 615.)
If the liberally construed allegations of the petition do not state a prima facie case
for relief, summarily denying the petition without holding a hearing does not violate the
parent’s due process rights. (In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413–1414.)
We review the summary denial of a section 388 petition for abuse of discretion.
(In re A.S. (2009) 180 Cal.App.4th 351, 358.) “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 arbitrary, capricious or patently absurd determination.” (Ibid.)
Mother’s section 388 petition alleged she had been clean for seven months, since
November 30, 2024; she had completed parenting and domestic violence awareness
programs; and she was enrolled in an outpatient drug treatment program with a possible
graduation date of July 31, 2025. In support of these allegations, Mother provided
certificates of completion from the parenting and domestic violence awareness programs,
and a progress report from the substance abuse program. The progress report reflected
that despite Mother having made “good” and “excellent” progress in the program, she
tested positive in drug/alcohol screening tests on April 23, and May 15, 2025; and that
even though Mother had provided the substance abuse program with a letter from her
doctor that stated her positive tests for alcohol were due to uncontrolled diabetes, the
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clinician at the program still believed Mother “would benefit from continuing
treatment.”4
The record also reflects that this was the third substance abuse program Mother
had attended over the course of her eight-year addiction. Mother completed the first
program in 2020, and then started a second program, which she did not complete. She
dropped out of the second program with only a few sessions remaining and began using
drugs again. By the time Mother found out she was pregnant with M.P. in January 2024,
she was using methamphetamine on a daily basis and continued to use it at least once or
twice a week for the first five months of her pregnancy. Mother’s inability to address her
substance abuse issues after having lost physical custody of one of her children and
having her parental rights terminated as to two of her other children, was the primary
reason the court identified in bypassing Mother’s reunification services.
On this record, we cannot say the juvenile court abused its discretion in
concluding that Mother had “only demonstrated changing circumstances.” Even when
liberally construed, Mother’s section 388 petition alleged she had only been clean for
seven months, since November 30, 2024, and had not yet completed the substance abuse
program in which she was enrolled. Seven months of sobriety, while not insignificant,
was only a brief period of time compared to Mother’s eight-year struggle with addiction,
and Mother had a history of both having quit a substance abuse program with only a few
4 Mother did not attach the letter from her doctor as an exhibit to the petition, nor did the progress report indicate what substance Mother tested positive for on April 23 and May 15, 2025.
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sessions remaining and having relapsed after completing a program. (See In re
Cliffton B. (2000) 81 Cal.App.4th 415, 423 [“seven months of sobriety since [the father’s
last] relapse … while commendable, was nothing new”]; In re Ernesto R. (2014) 230