In re M.G. CA2/1

Filed 7/29/21 In re M.G. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

In re M.G., a Person Coming Under B308706
the Juvenile Court Law,

(Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. DK02291)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

ERNESTO G.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, Jean M. Nelson, Judge. Affirmed.
Jamie A. Moran, under appointment by the Court of
Appeal, for Defendant and Appellant.
 Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and William D. Thetford, Principal
Deputy County Counsel, for Plaintiff and Respondent.
Ernesto G. (Father) appeals from a juvenile court
order summarily denying his Welfare and Institutions Code
section 3881 petition asking the court to change an order
removing his daughter, M.G., from his care and denying him
reunification services. Father contends that his petition alleged
a prima facie case for relief, such that the trial court abused
its discretion by denying him a hearing thereon. We disagree.
Considered in the context of the factual and procedural history
of this case, the factual allegations in Father’s petition simply
do not reflect the significant change of circumstances necessary
to warrant relief under section 388. Specifically, the petition
describes several months of sobriety and commendable efforts
to address the substance abuse issues at the heart of these
dependency proceedings. But Father has a 34-year substance
abuse history, during which he had other such periods of sobriety
and participation in drug addiction treatment, all of which ended
in a relapse. Indeed, based on one such period of sobriety and
progress, the juvenile court granted an earlier section 388
petition by Father and reinstated his reunification services—only
for Father to relapse approximately seven months later, further
delaying permanency for his daughter. His petition offers
nothing to suggest that this time the outcome will be different.
Father stresses that M.G. has behavioral issues that
complicate her adoptive placement prospects, that M.G. does not

1 All subsequent statutory references are to the Welfare
and Institutions Code.

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want to be adopted by a nonfamily member, and that the
dependency proceedings have not yielded meaningful steps
towards a permanent plan for M.G. after over seven years. But
the length of these proceedings is partially a problem of Father’s
own making. And the difficulties facing M.G. in securing a
permanent placement weigh in favor of her continuing to pursue
legal guardianship with her current foster mother, with whom
she and her sister have been placed since June 2019, rather than
again attempting to reunify with Father when he had alleged
nothing to suggest that such efforts will end differently than
they have in the past. Although Father’s sobriety and work
addressing his longstanding drug problem are commendable, the
juvenile court acted well within its discretion in concluding that
these efforts do not support a prima facie case for relief under
section 388. Accordingly, we affirm the juvenile court order
denying Father’s petition without a hearing.

FACTS AND PROCEEDINGS BELOW
A. Initial Petitions Based on Substance Abuse
Issues
Father is the father of M.G. (born November 2011) and
the presumed father of M.G.’s sister, S.M. (born December 2006).
In October 2013, DCFS detained one-year-old M.G., six-year-old
S.M., and the newborn J.O.,2 from their mother, E.M. (Mother)
after Mother gave birth to J.O. while incarcerated for a drug-

2Only M.G. is the subject of this appeal. J.O. was placed
with her father, and jurisdiction over the child was terminated on
January 11, 2016.

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related offense.3 DCFS placed M.G. with Father and filed a
section 300 petition, which the juvenile court later sustained,
alleging Mother and J.O.’s father had a long history of substance
abuse. Father was nonoffending in the petition.
Several months later, DCFS filed a section 342 petition
against Father alleging that his long history of substance abuse
and substance abused-related criminal history, as well as his
having permitted Mother to have contact with the children
despite knowing of her illicit drug use, endangered M.G. and S.M.
Specifically, as to Father’s substance abuse and criminal history,
it alleged that “[F]ather . . . has a 28[-]year criminal history
of convictions including eleven convictions for possession of a
controlled substance and two convictions for driving under the
influence of alcohol/drugs. In February of 2013, . . . [F]ather’s
Prop[osition] 36 probation was revoked due to [F]ather’s failure
to participate in and complete a court[-]ordered drug treatment
program.” (Capitalization omitted.)
On June 6, 2014, the juvenile court sustained the
section 300 petition and the section 342 petition, removed all
three children from Mother’s custody, and removed S.M. and
M.G. from Father’s custody. S.M. and M.G. were placed in foster
care.

3 Mother is not a party to this appeal. We therefore
omit from our factual summary details regarding Mother’s
involvement in the dependency proceedings and the children’s
lives, except to the extent necessary to provide context for the
facts relevant to Father’s appeal.

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 B. Termination of Reunification Services in 2016
For several months thereafter, Father failed to participate
in court-ordered counseling and drug programs and repeatedly
tested positive for drugs. On February 2, 2015, Father enrolled
in an inpatient substance abuse program. On February 11,
2015, however, the juvenile court found Father had made only
“minimal” progress, and terminated Father’s reunification
services.
Father stopped visiting M.G. and S.M. in September 2015.
His whereabouts were unknown during this time, and in March
2016, the court completed a due diligence search for him in
anticipation of the permanency planning hearing, ultimately
locating him in an inpatient drug treatment facility. The court
twice continued the permanency planning hearing to allow DCFS
to continue to investigate adoptive placement options, as the
children’s current foster family was not interested in adoptive
placement. Father resumed his visits with the children in July
2016. By August 2016, DCFS had located a potential adoptive
family.

C. Father’s First Section 388 Petition
On August 5, 2016, Father filed a section 388 petition
asking the court to change its February 2015 order to the extent
the order terminated his reunification services for M.G. and
allowed him only monitored visits with M.G. (the first section 388
petition). The petition was based on Father’s progress dealing
with his addiction and his relationship with M.G. The petition
evidenced his enrollment in an inpatient drug program since
February 15, 2016, which he was scheduled to complete in
the coming weeks. As detailed in the petition and supporting
documentation, Father was doing well in the program, had

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participated in chemical dependency education classes, relapse
prevention classes, anger management classes, and 12-step
meetings with a sponsor. Also attached to the petition were
results of clean drug tests beginning in March 2016. The petition
acknowledged that Father did not have stable housing, but
alleged that the requested relief would be in M.G.’s best interest
because she deserved to be with her biological father and was
very attached to him.
In November 2016, the juvenile court held a hearing on the
first section 388 petition. DCFS reports submitted in connection
with the hearing reflected that Father was doing “well” in
the second phase of his drug treatment program, continued to
participate in programs, had moved into a sober-living home,
was working at a warehouse, and had been consistently providing
clean drug tests for approximately eight months. Father’s
sponsor reported Father was in his fifth step of the 12-step
program and was expected to complete the program in two
months.
DCFS further reported that the children had been re-placed
with their potential adoptive parent in October 2016, and were
adjusting well. Although the potential adoptive parent continued
to express interest in providing the children with a permanent
home, she was concerned about M.G.’s troubling behaviors and
the availability of services to address them and M.G.’s related
diagnosis of “reactive attachment disorder.” (Capitalization
omitted.) In November 2016, M.G. reported that she liked living
with her prospective adoptive parent and wanted to stay with
her, but that she also wanted to live with Father.

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 In November 2016, in accordance with DCFS’s
recommendation, the juvenile court denied the first section 388
petition.

D. Father’s Second Section 388 Petition and
Reinstatement of Reunification Services
Less than two months later, Father filed another
section 388 petition based on his continuing progress in drug
treatment, his continued sobriety, and his relationship with
M.G. (the second section 388 petition.) The court twice continued
the hearing on the second section 388 petition, as well as the
hearing on a similar section 388 petition filed by Mother and
the permanency planning hearing. On March 17, 2017, the court
granted both parents’ section 388 petitions, reinstating family
reunification services for both, granting them unmonitored visits,
and taking the permanency planning hearing off calendar. The
court ordered the parents to participate in individual counseling,
a 12-step program, and random on-demand drug tests.

E. Father’s Progress Following Reinstatement
of Services
The months that followed were marked by positive progress
for both parents and their relationships with the children. S.M.
and M.G. appeared to look forward to the unmonitored visits with
both parents that began in March 2017, reported they enjoyed
seeing their parents, and had no concerns regarding the visits.
On August 1, 2017, the children were released to Mother’s
custody. Father resided at a sober-living residence after
graduating from his inpatient program, was employed full time
as a butcher, and began working with DCFS to secure housing
assistance. Between May and September 2017, he drug-tested

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negative seven times and missed one drug test. He continued to
attend Narcotics Anonymous meetings. On September 25, 2017,
the juvenile court ordered the children be placed with Mother.

F. Father’s Relapse and Termination of
Reunification Services in 2018
In October 2017, however, Father relapsed and was
terminated from his sober-living facility. After leaving the
sober-living home, he became homeless. He stopped visiting
the children regularly, failed to make himself available to meet
with the social worker, and did not follow through on efforts
to secure housing benefits. When the social worker was able to
contact him in February 2018, he agreed to drug test on demand
and meet with the social worker again, but then failed to do
either. In a March 2018 report, DCFS recommended terminating
juvenile court jurisdiction with a family law order granting
Mother full physical custody, joint legal custody with Father,
and monitored visits for Father.
DCFS’s recommendation changed, however, based on
subsequent developments involving Mother and her husband,
Bobby. The juvenile court continued proceedings several times
while DCFS investigated various referrals involving Mother and
Bobby. Ultimately, on July 30, 2018, DCFS filed a section 342
petition that alleged domestic violence between Mother and
Bobby in the children’s presence and physical abuse of M.G. by
Mother, which the juvenile court ultimately sustained. DCFS
again placed the children in a foster home. As of August 2018,
Father reported still being homeless, and told social workers he
was aware that Bobby was hitting Mother, but that he had never
seen Mother hit M.G. Father said he wanted to reunify with the
children.

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 At the disposition hearing on October 31, 2018, the juvenile
court denied further reunification services to both parents,
ordered assessment of additional relatives with which the
children might be placed and ordered monitored visits for the
parents.

G. Father’s Return to Treatment, Relapse and
Arrest in 2018 / 2019
Father returned to an inpatient treatment program, but
was discharged in approximately May 2019 due to “behavior
reasons.” Father also stopped contact with social workers. On
August 9, 2019, Father was arrested for possession of a controlled
substance for sale, and was incarcerated.

H. M.G.’s Foster Placements and Behavioral Issues
Meanwhile, the children were in the care of various foster
parents. Around October 2018, it was reported that M.G. was
receiving wraparound services to address several behavioral
difficulties, and that her behavior had improved. On January 8,
2019, M.G. was moved to a different foster home—her eighth
placement—and separated from S.M. While living there, she
was doing well overall at school, but experiencing incidents of
bed-wetting. Around May 2019, the caregivers of both children
asked that, due to ongoing negative behaviors, they be moved to
new placements.
On June 12, 2019, DCFS was able to place both the
children together in the foster home of T.R., with whom, based on
the most current information in the record, the children appear to
still be placed. T.R. expressed her desire to provide permanency
through legal guardianship, but DCFS continued to recommend
adoption as the permanent plan. The permanency planning

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hearing was repeatedly continued while DCFS investigated
possible permanent placements or family placements for
the children, including with the maternal grandfather, who
had been visiting with the children and had expressed a desire
to adopt them. DCFS assessed maternal grandfather’s home
for placement, but he was denied due to maternal grandmother’s
criminal history. Maternal grandfather appealed the denial.
DCFS reported the children were adjusting well in T.R.’s home,
but neither girl was doing well in school, and M.G. continued to
have incidents of bed-wetting and other behavioral issues. M.G.’s
therapeutic behavioral services were discontinued in June 2019
due to improvements in her behavior at that time. She continued
to receive wraparound services and individual counseling and
was taking prescribed psychotropic medication under the
supervision of a psychiatrist.

I. Continuing Efforts to Identify a Permanency
Plan
On June 26, 2019, the juvenile court ordered a planned
permanent living arrangement in long term foster care, with a
specific goal of adoption, as the permanent plan for M.G.
On January 13, 2020, the juvenile court changed M.G.’s
permanent plan. It provided, without further specification, that
“ [t]he [p]ermanent plan of to be determined as a specific goal
is appropriate and is ordered as the permanent plan.”
In early 2020, M.G. repeatedly made accusations that
foster mother T.R. had physically and verbally abused her, which
M.G. later admitted was not true, and instead motivated by a
desire to be placed with maternal grandfather, whose appeal
regarding his failed home assessment was still pending. Despite
these issues, T.R. continued to express her desire to provide

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permanence for both M.G. and S.M. through a legal
guardianship. DCFS continued to recommend adoption. Due to
M.G.’s behavioral issues, however, DCFS was having difficulty
matching her with an adoptive family. This difficulty was
exacerbated by the children refusing to cooperate in efforts to
seek adoptive placement. They stated they were not interested
in being adopted by strangers and wanted to instead be adopted
by maternal grandfather.
In April 2020, in response to the Covid-19 pandemic and
related state of emergency, the juvenile court ordered the
pending hearings, including the permanency planning hearing,
continued.

J. Father’s Third Section 388 Petition
In October 2020, Father filed another section 388 petition
with respect to M.G. only (the third section 388 petition). Father
sought to modify the October 2018 order terminating Father’s
reunification services, affording him only monitored visits, and
requiring M.G. remain suitably placed. In the third section 388
petition, Father alleged that the following circumstances reflect
significant changes warranting his requested modification:
“Father has continued to actively address the issues that brought
this matter before the [c]ourt. He is focused on his sobriety.
He is attending an outpatient program at LaCada and has had
negative drug tests. At LaCada he is involved in individual
counseling, crisis intervention and case management three times
a week. Since COVID he has only been able to speak with [M.G.]
via telephone. Father has housing and support from his sister.”
According to a September 2020 letter from LaCada attached to
the petition, Father had enrolled into this outpatient program
on May 21, 2020, provided six negative drug tests, shown positive

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progress, and appeared to be motivated to continue the program.
He was participating in weekly telephonic individual therapy
sessions, had attended four group sessions, 24 substance-use
counseling sessions, and four individual therapy sessions.
The petition asked the juvenile court to place M.G. in
Father’s custody or reinstate family reunification services and
and/or liberalize restrictions on his visits. The petition alleged
the requested relief would be in M.G.’s best interests because
she “deserves to be able to bond with her father” and that “[i]f the
[c]ourt does not grant [F]ather custody, it is in her best interest
for the [c]ourt to grant family reunification services so that . . .
[F]ather may continue services that will allow him to better
parent her.” DCFS reports reflect that Father’s visits with M.G.,
which began after January 2020 when he was released from jail,
were going well.
On October 21, 2020, the juvenile court summarily denied
Father’s section 388 petition without a hearing. Father timely
appealed.

DISCUSSION
A. Applicable Law Regarding Section 388 Petitions
Section 388 permits a party in dependency proceedings,
“upon grounds of change of circumstance or new evidence, [to]
petition the court . . . for a hearing to change, modify, or set
aside any order of court previously made” in those proceedings.
(§ 388, subd. (a)(1).) A party seeking such a change in order must
show either “that there is new evidence or that there are changed
circumstances that make [the proposed] change . . . in the best
interests of the child.” (In re Stephanie M. (1994) 7 Cal.4th
295, 317 (Stephanie M.); see Ansley v. Superior Court (1986) 185

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Cal.App.3d 477, 485 [same].) The change of circumstances or
new evidence supporting a section 388 petition “must be of such
significant nature that it requires a setting aside or modification
of the challenged prior order.” (Ansley v. Superior Court, supra,
at p. 485.)
In order to be entitled to a hearing on a section 388
petition, the petitioner must sufficiently allege both a significant
change in circumstances (or new evidence) and the promotion
of the child’s best interests. (In re K.L. (2016) 248 Cal.App.4th
52, 61; see § 388, subds. (a)(1) & (d); Cal. Rules of Court,
rule 5.570(a).) “ ‘A prima facie case is made if the allegations
demonstrate that these two elements are supported by probable
cause. [Citations.] It is not made, however, if the allegations
would fail to sustain a favorable decision even if they were found
to be true at a hearing. [Citations.] While the petition must
be liberally construed in favor of its sufficiency [citations],
the allegations must nonetheless describe specifically how the
petition will advance the child’s best interests.’ [Citation.]” (In re
K.L., supra, at pp. 61–62.) “In determining whether the petition
makes the necessary showing, the court may consider the entire
factual and procedural history of the case.” (In re Jackson W.
(2010) 184 Cal.App.4th 247, 258.)
The determination of whether to change an existing order
is “committed to the sound discretion of the juvenile court, and
[its] ruling should not be disturbed on appeal unless an abuse
of discretion is clearly established.” (Stephanie M., supra, 7
Cal.4th at p. 318.) Such “discretion is not ‘unfettered’ but must
be ‘ “ ‘exercised in conformity with the spirit of the law and
in a manner to subserve and not to impede or defeat the ends
of substantial justice.’ ” ’ [Citation.]” (In re Robert L. (1993)

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21 Cal.App.4th 1057, 1067, superseded on other grounds by
statute, as stated in Cesar V. v. Superior Court (2001) 91
Cal.App.4th 1023, 1032.) An abuse of discretion thus occurs
when the juvenile court has exceeded the bounds of reason by
making a determination that is arbitrary or capricious in light
of the applicable law. (In re Robert L., supra, 21 Cal.App.4th
at p. 1066.)

B. Father Has Not Made a Prima Facie Showing
of a Significant Change in Circumstances
Father argues that the trial court abused its discretion by
denying him a hearing on the third section 388 petition, because
the period of sobriety described in the petition constitutes a
prima facie showing of the requisite changed circumstances
under section 388. We disagree.
The petition alleges that Father entered a substance
abuse program approximately seven months before the petition
was filed, during which time he participated in counseling and
substance abuse classes. It further alleges seven months of
sobriety as of the date of the petition, and that those working
with him in his program view him as committed and sincere
in his efforts. But Father has made exactly these same changes
before—indeed, he has in the past achieved longer periods of
sobriety (as much as 21 months), participated in counseling and
programs for even longer periods, and received glowing reports
from his program administrators—only to ultimately relapse
after each such period of sobriety and progress.
We do not mean to discount how important it is that Father
continue to work on combatting his addiction; nor do we mean to
imply that he will again fail. But when we consider the petition’s
allegations against a back drop of these repeated failed efforts in

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the past, it is clear that the allegations do not reflect significant
changed circumstances—to the contrary, they reflect more of
the same pattern that has persisted for years. Thus, such efforts
“[a]re not prima facie evidence of a change in circumstances
because Father had already received extensive treatment for
his [substance-abuse problem]. That treatment allowed him
to achieve a period of sobriety, but it did not prevent him from
relapsing” in the past. (In re Marcelo B. (2012) 209 Cal.App.4th
635, 642 [no abuse of discretion in denying section 388 petition
without hearing], disapproved of by In re Caden C. (2021)
11 Cal.5th 614; see In re Ernesto R. (2014) 230 Cal.App.4th
219, 223 [“[a]ppellant’s recent sobriety reflect[ed] ‘changing,’
not changed, circumstances” where he “ha[d] a history of drug
relapses, [was] in the early stages of recovery, and [was] still
addressing a chronic substance abuse problem”].) Moreover, in
assessing the significance of the change Father claims his recent
period of sobriety represents, that seven-month period must
be contrasted with his over 30-year history of drug abuse. (See
In re Kimberly F. (1997) 56 Cal.App.4th 519, 531 [“the gravity
of the problem leading to the dependency . . . must be taken into
account” in assessing a claim of changed circumstances under
section 388].) This comparison likewise supports that Father’s
allegations fall far short of showing the “real reform” warranting
relief under section 388. (Id. at p. 531, fn. 9; ibid. [“[i]t is the
nature of addiction that one must be ‘clean’ for a much longer
period than 120 days to show real reform”]; In re Cliffton B.
(2000) 81 Cal.App.4th 415, 423 [“seven months of sobriety since
[the father’s] relapse in January, while commendable, was
nothing new” where the father “had a history of drug use dating

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back to his college days, and since then his periods of sobriety
alternated with recurring drug use”].)
Given this pattern and the length of time it has persisted
despite significant efforts by Father, the allegations in the
petition are also insufficient to establish that the relief Father
seeks would be in M.G.’s best interest. He argues that M.G.
deserves a chance to be reunited with her biological family,
and that she is not interested in nonfamily placements as a
permanent plan. After the termination of reunification services,
“ ‘the focus shifts to the needs of the child for permanency and
stability’ [citation], and in fact, there is a rebuttable presumption
that continued foster care is in the best interests of the child.
[Citation.]” (Stephanie M., supra, 7 Cal.4th at p. 317.) Even
though “a parent’s interest in maintaining a relationship with his
or her biological child is no longer the focus,” however, we “still
consider the benefits to a child of remaining connected with his
or her biological parent and extended family.” (In re J.M. (2020)
50 Cal.App.5th 833, 837.) But these benefits must be weighed
against their costs: here, delaying permanency for M.G. in the
hopes that Father will maintain sobriety and reunify with her,
despite the record containing no indication that things will be
different this time around and he will achieve this.
Father focuses on how long the dependency proceedings
have lasted, leaving M.G. in limbo, and the apparent limits on
her options for nonfamily placement, given her behavioral issues.
But Father’s inability to maintain his sobriety significantly
contributed to this situation: M.G. and S.M. were in a potential
adoptive home when the juvenile court granted Father’s request
to reinstate reunification services in 2017, thereby delaying those
efforts. Now, Father seeks to reinstate his reunification services

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when M.G. and S.M. are placed with a foster parent willing to
provide both children permanence through legal guardianship.
Precisely because of the behavioral challenges affecting M.G.’s
placement options, permitting Father to again delay efforts
towards this becoming a permanent home is not in her best
interest.
Finally, Father argues that section 388 plays an important
role as an “escape mechanism” for parents who make changes
late in dependency proceedings. This is true, but only when
the requirements of section 388 are met—that is, only when the
changes the parent makes are sufficient to meet the threshold
set by section 388. As discussed above, Father has failed to make
a showing that this is the case, even if all the factual allegations
in his petition are true. Moreover, Father has already once used
this escape mechanism to reinstate reunification services based
on a period of sobriety and progress—only to again have services
terminated after he relapsed. Denying Father another try when
he has made no showing that things will end differently this time
is not an abuse of discretion.

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 DISPOSITION
The juvenile court’s order is affirmed.
NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.
We concur:

BENDIX, J.

CRANDALL, J.*

*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.

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