California Court of Appeal Feb 25, 2026 No. E086031Unpublished
Filed 2/25/26 In re A.M. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 A.M., a Person Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E086031
Plaintiff and Respondent, (Super.Ct.No. J274989)
v. OPINION
A.M.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes,
Judge. Affirmed.
Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and
Appellant.
Tom Bunton, County Counsel, and Helena C. Rho, Deputy County Counsel, for
Plaintiff and Respondent.
1
INTRODUCTION
Anthony M. (Father) filed a Welfare and Institutions Code1 section 388 petition
seeking increased visitation with his minor son A.M. The juvenile court summarily
denied the petition without holding a hearing, and Father timely filed a notice of appeal.
The same day Father filed his notice of appeal, he filed a second section 388 petition that
also sought increased visitation with A.M. The juvenile court summarily denied the
second petition without holding a hearing, and Father did not appeal the denial.
Father contends the juvenile court abused its discretion by summarily denying his
section 388 petitions without holding an evidentiary hearing. San Bernardino County
Children and Family Services (CFS) contends the juvenile court properly denied the
petitions. CFS also asserts that we must limit our review to the first section 388 petition
because Father did not appeal the denial of the second petition.
We agree with CFS. Father’s failure to appeal the second petition was a
jurisdictional defect that cannot be cured by liberally construing the notice of appeal. We
therefore limit our review to Father’s first section 388 petition and conclude the juvenile
court did not abuse its discretion in summarily denying the petition. Accordingly, we
affirm.
1 All further undesignated statutory references are to the Welfare and Institutions Code.
2
BACKGROUND
A. The Underlying Dependency Proceedings
In February 2018, CFS received a report that Janeen G. (Mother) and A.M. both
tested positive for amphetamines and marijuana when A.M. was born. CFS initiated an
investigation. Mother acknowledged that she “‘relapsed’” shortly before going into labor
and admitted to using methamphetamine and marijuana. Mother also reported that she
and Father broke up before she found out she was pregnant, and that Father was currently
incarcerated at the High Desert Detention Center. A records check revealed that Father
had prior convictions for possession of methamphetamine (July 2017) and public
intoxication (April and July 2015). CFS temporarily removed A.M. from Mother, and
upon A.M.’s release from the hospital, placed him with the maternal grandmother.
On February 22, 2018, CFS filed a dependency petition that alleged failure to
protect as to both parents based on their current substance abuse issues (§ 300,
subd. (b)(1); allegations b-1 & b-2), and no provision for support as to Father based on
his current incarceration (§ 300, subd. (g); allegation g-3).
The juvenile court ordered A.M. detained on February 23, 2018. The court also
ordered Mother to take a drug test, and ordered Father to take a paternity test. Mother’s
drug test came back positive for amphetamines, opiates, and marijuana. The paternity
test established that Father was A.M.’s biological Father.
On April 23, 2018, Father was sentenced to five years in state prison on a pending
robbery charge.
3
A combined jurisdiction and disposition hearing was held a few days later, on
April 26, 2018. The juvenile court amended the b-2 allegation to allege Father had a
history of substance abuse, and then sustained the petition as amended. The court
ordered reunification services and supervised visitation for Mother, but not for Father.
The court found it was not in A.M.’s best interest to offer Father reunification services.
The court maintained A.M.’s placement with the maternal grandmother.
Mother’s reunification services were later terminated at the six-month review
hearing.
On April 18, 2019, the juvenile court appointed the maternal grandmother as
A.M.’s legal guardian and ordered supervised visitation between A.M. and both parents
for a minimum of once a month for two hours. Father’s counsel objected to the
guardianship, but did not offer any evidence or argument on Father’s behalf.
On June 13, 2019, the juvenile court discharged the dependency. The court
retained jurisdiction over A.M. as a ward of the legal guardianship (see § 366.3,
subd. (a)(3)), and it kept the order for supervised visitation in place.
B. Father’s Section 388 Petitions
About six years later, on April 9, 2025,2 Father filed a section 388 petition in
propria persona that sought “visitation/custody.” Father alleged the requested change in
order was in A.M.’s best interest because: A.M. “would be best with me/Dad” and A.M.
“[w]ants to be with [F]ather.” Father did not attach any documentation to the petition or
2 All further date references are to the year 2025.
4
provide any further information. The juvenile court summarily denied the petition on
April 11 because it did not state new evidence or a change of circumstances, nor did it
promote A.M.’s best interest.
On April 17, Father timely filed a notice of appeal challenging the denial of his
petition. The notice of appeal stated Father is appealing “visitation [schedule] time with
my son.”
The same day Father filed his notice of appeal, Father filed a second section 388
petition, also in propria persona. The petition stated: “I have a relationship with my son
and I want visitation[] with him. I’ve had visitation[] with him in the past, not court
ordered. I want a court order [for] visitation.” The petition stated Father was seeking
“visitation every weekend[]” and set dates and times “for holidays [and] birthday[s].”
Father alleged his circumstances had changed because he had two jobs, was stable, and
he had a home. Father stated the requested change in order was in A.M.’s best interest
because it would “bring [them] closer,” allow them to have a “better relationship with
each other,” to “fill[] in” for the time they spent apart, and it would be “better for
[A.M.’s] mental health.”
The juvenile court summarily denied the petition on April 18 because it did not
state new evidence or a change of circumstances, nor did it promote A.M.’s best interest.
Father did not appeal the denial of the second section 388 petition.
5
DISCUSSION
A. Denial of the Second Section 388 Petition
Father contends we should liberally construe his notice of appeal to encompass the
denial of the second section 388 petition because both petitions sought the same relief,
and the second petition “was simply to correct or modify what may have been missing
from [the] first petition.” Thus, Father contends, appellate review of the second petition
is warranted on grounds of “judicial economy and general justice for an in pro[.] per[.]
litigant.” CFS contends we lack jurisdiction to review the denial of the second section
388 petition because Father did not file a notice of appeal following the denial order. We
agree with CFS.
The denial of a section 388 petition is an appealable order. In a dependency
proceeding, “any subsequent order” issued after the dispositional order “may be appealed
as an order after judgment.” (§ 395, subd. (a)(1); In re S.B. (2009) 46 Cal.4th 529, 531–
532.) This includes the denial of a section 388 petition. (In re K.C. (2011) 52 Cal.4th
231, 235–236.)
When an order is appealable, the aggrieved party must file a timely notice of
appeal from the order to obtain appellate review. (Sole Energy Co. v. Petrominerals
Corp. (2005) 128 Cal.App.4th 212, 239 (Sole Energy).) “One of the most fundamental
rules of appellate review is that the time for filing a notice of appeal is jurisdictional.”
(In re A.O. (2015) 242 Cal.App.4th 145, 148; Hollister Convalescent Hosp., Inc. v. Rico
(1975) 15 Cal.3d 660, 670 [“the timely filing of an appropriate notice of appeal or its
legal equivalent is an absolute prerequisite to the exercise of appellate jurisdiction”].)
6
Appellate jurisdiction “cannot be conferred ‘by the consent or stipulation of the parties,
estoppel, or waiver’ [citations] or by the ‘relative merits of an appeal.’” (In re Marriage
of Corona (2009) 172 Cal.App.4th 1205, 1216.) Nor can the reviewing court relieve a
party from default for failing to timely file a notice of appeal. (Cal. Rules of Court, rule
8.60(d).)3 “‘Unless the notice [of appeal] is actually or constructively filed within the
appropriate filing period, an appellate court is without jurisdiction to determine the merits
of the appeal.’” (Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106, 113.)
Once a notice of appeal has been timely filed, the liberal construction requirement
“compels a reviewing court to evaluate whether the notice, despite any technical defect,
nonetheless served its basic function—to provide notice of who is seeking review of what
order or judgment—so as to properly invoke appellate jurisdiction.” (K.J. v. Los Angeles
Unified School Dist. (2020) 8 Cal.5th 875, 883.) The reviewing court should avoid an
“overly technical attempt to parse the notice of appeal’s language.” (In re Joshua S.
(2007) 41 Cal.4th 261, 272.) A notice of appeal will be deemed sufficient “if it identifies
the particular judgment or order being appealed.” (Rules 8.100(a)(2), 8.405(a)(3).)
However, there are limits to our ability to liberally construe a notice of appeal.
“[I]t is well ‘beyond liberal construction’ to view an appeal from one order as an appeal
from a ‘further and different order.’ [Citation.] ‘Despite the rule favoring liberal
interpretation of notices of appeal, a notice of appeal will not be considered adequate if it
completely omits any reference to the judgment [or order] being appealed.’” (Baker v.
3 All further rule references are to the California Rules of Court.
7
Castaldi (2015) 235 Cal.App.4th 218, 225; In re J.F. (2019) 39 Cal.App.5th 70, 76.)
““‘[W]here several judgments and/or orders occurring close in time are separately
appealable …, each appealable judgment and order must be expressly specified—in
either a single notice of appeal or multiple notices of appeal—in order to be reviewable
on appeal.’”” (Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, 173; Sole Energy, supra,
128 Cal.App.4th at p. 239.) The filing of a notice of appeal is not merely a procedural
step; it is a jurisdictional requirement: “where no appeal is taken from an appealable
order, a reviewing court has no discretion to review its merits.” (Berge v. Int'l Harvester
Co. (1983) 142 Cal.App.3d 152, 158.)
This authority compels us to conclude that we cannot liberally construe Father’s
notice of appeal to encompass the order denying Father’s second section 388 petition.
Although both of Father’s petitions sought similar relief (increased visitation with A.M.),
Father sought that relief through two separately filed petitions, and the juvenile court
issued two separate denial orders—one on April 11, and one on April 18. Each denial
order the court issued was separately appealable as an order after judgment. (§ 395,
subd. (a)(1).) Yet Father only filed a single notice of appeal following the first denial
order. Father’s notice of appeal was not ambiguous; it specifically stated he was
appealing the April 11 denial order. And importantly, he filed his notice of appeal on
April 17, before the juvenile court had even considered his second petition. Father does
not point us to any authority that would allow us to liberally construe a notice of appeal
to encompass an appealable order that was issued after the notice of appeal was filed that
8
the party did not appeal.4 Neither judicial economy, nor Father’s status as a self-
represented litigant give us the jurisdiction to review an appealable order that a party did
not appeal. (See First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 958,
fn. 1 [“‘“the in propria persona litigant is held to the same restrictive rules of procedure
as an attorney”’”].)
Accordingly, we conclude that we lack jurisdiction to review the denial of Father’s
second section 388 petition. Father’s failure to appeal the denial of the second petition is
a jurisdictional defect that we cannot cure by liberally construing the notice of appeal.
We will therefore limit our review to the denial of Father’s first section 388 petition.
B. Denial of the First Section 388 Petition
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; rule 5.570(a).) However, to obtain “a full
4 We recognize that the reviewing court may treat a prematurely filed notice of appeal as having been filed from an order issued after the notice of appeal was filed. (Rule 8.406(d).) But Father does not contend his notice of appeal was prematurely filed, nor do we see any basis for treating it as prematurely filed. It would be “inconsistent” to treat Father’s notice of appeal both as a timely filed notice of appeal from the first denial order and as a premature notice of appeal from the second denial order. (People v. Denham (2014) 222 Cal.App.4th 1210, 1214.)
9
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.)
There are two parts to the prima facie showing. The parent must demonstrate: (1)
a genuine change of circumstances or new evidence, and (2) that revoking the previous
order would be in the child’s best interest. (In re Anthony W. (2001) 87 Cal.App.4th 246,
250 (Anthony W.).) “To make a prima facie showing under section 388, the allegations of
the petition must be specific … and must not be conclusory.” (In re Alayah J. (2017)
9 Cal.App.5th 469, 478; In re Edward H. (1996) 43 Cal.App.4th 584, 593 [“specific
allegations describing the evidence constituting the proffered changed circumstances or
new evidence” are required].) “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.” (Anthony W.,
supra, at p. 250; rule 5.570(d)(1).)
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.)
Father’s first section 388 petition sought to modify the “visitation/custody” order
under which he was entitled to a minimum of two hours per month of supervised
visitation with A.M. However, Father did not identify a change in circumstance, and he
10
offered only a conclusory allegation that increased visitation was in A.M.’s best interest
because A.M. “would be best with me/Dad,” and A.M. “wants to be with [F]ather.”
Having failed to identify a change in circumstance and having offered only a
conclusory allegation that increased visitation was in A.M.’s best interest, the juvenile
court did not abuse its discretion in summarily denying Father’s petition. (Anthony W.,
supra, 87 Cal.App.4th at p. 250; rule 5.570(d)(1).)
DISPOSITION
The order entered by the juvenile court on April 11, 2025, denying Father’s
section 388 petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
We concur:
FIELDS J. MENETREZ J.
11
AI Brief
AI-generated · verify before citing
Holding. The court held that it lacked jurisdiction to review the denial of the father's second section 388 petition because he failed to file a notice of appeal from that order, and it affirmed the denial of the first petition because the father failed to make a prima facie showing of changed circumstances or that the modification was in the child's best interest.
Issues
Whether the court has jurisdiction to review the denial of a second section 388 petition when no notice of appeal was filed for that specific order.
Whether the juvenile court abused its discretion in summarily denying the first section 388 petition for failing to state new evidence or changed circumstances.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Father’s failure to appeal the second petition was a jurisdictional defect that cannot be cured by liberally construing the notice of appeal.”
“The juvenile court did not abuse its discretion in summarily denying the petition.”
“where no appeal is taken from an appealable order, a reviewing court has no discretion to review its merits.”