In re C.B. CA2/4

Filed 6/17/22 In re C.B. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR

In re C.B., Person Coming B311957
Under the Juvenile Court Law.

LOS ANGELES COUNTY Los Angeles County
DEPARTMENT OF Super. Ct. No.
CHILDREN AND FAMILY 19CCJP00683
SERVICES,

Plaintiff and Respondent,

v.

C.A.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, Stephen C. Marpet, Judge Pro Tempore.
Affirmed.
Carolyn S. Hurley, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, William D. Thetford, Deputy County
Counsel, for Plaintiff and Respondent.
 INTRODUCTION

The juvenile court terminated the parental rights of C.A.
(mother) with respect to her son, C.B., under Welfare and
Institutions Code1 section 366.26. On appeal, mother challenges
the juvenile court orders denying two separate petitions filed
under section 388 to modify the order terminating her
reunification services. Finding no error, we affirm.

BACKGROUND

C.B. was the subject of a prior dependency petition. On
February 22, 2017, the Department of Children and Family
Services (Department) received a referral alleging mother and
Christopher B. (father)2 were arguing over money, their
relationship, and mother’s discipline of C.B when father pushed,
punched, and strangled mother in the presence of C.B. Mother
stated there had been at least 10 prior domestic violence
incidents between the parents and one incident led to father’s
arrest in Omaha. Consequently, in March 2017, the juvenile
court sustained a dependency petition alleging (1) the parent’s
history of domestic violence in C.B.’s presence endangered his
health and safety and placed him at risk of serious physical harm
and (2) mother’s mental and emotional problems endangered
C.B.’s physical health and safety and placed him at risk of serious
physical harm. After the parents participated in and completed
court-ordered programs, the juvenile court returned C.B. to

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

2 Father is not a party to this appeal.

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mother. Ultimately, the juvenile court terminated jurisdiction
over C.B. in November 2018.
The current dependency case arose in January 2019 when
C.B. was three years old. The Department received a referral
alleging C.B. was a victim of general neglect. A police officer went
to mother’s apartment to investigate a report she was having
issues with father. After the officer knocked a few times, C.B.
opened the door. Because the parents were in the bathroom and
C.B. was alone, the officer entered the apartment. Mother
reported father had been blocking her from leaving the
apartment. Maternal grandmother, who was on the phone with
mother at the time of the incident, called the police. Mother
explained she was staying in the apartment as a client of a
shelter program. Moreover, mother had allowed father to reside
in the apartment with her and C.B. even though she had an
active restraining order against him. Ultimately, the officer
arrested father because he was in violation of an active
restraining order and had a warrant out for his arrest. The
warrant stemmed from an incident of domestic violence by father
against mother.
The same day father was arrested, a Department social
worker went to mother’s apartment. When the social worker
arrived, she saw mother packing her bags. Mother claimed she
was moving to Nebraska because father was in jail. When talking
to the social worker, mother became emotional and stated she
stayed with father because of financial issues. Moreover, mother
explained she suffered from posttraumatic stress disorder (PTSD)
from all of the domestic abuse she experienced from father. The
social worker interviewed maternal grandmother the same day.
Maternal grandmother stated mother had left father in the past,

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but she had always returned to him for financial assistance. The
following day, the Department obtained a removal warrant and
removed C.B. from his parents. The Department placed C.B. in a
foster home and filed a section 300 petition on his behalf.
In April 2019, after mother pled no contest, the juvenile
court sustained the petition under section 300, subdivisions (a)
and (b). In so doing, it found (1) C.B. was at substantial risk of
serious physical harm due to the parents’ history of domestic
violence and engaging in violent altercations in the presence of
C.B. and (2) C.B.’s physical health and safety was placed at risk
due to mother’s failure to protect C.B. from father.
The juvenile court declared C.B. a dependent of the court
and ordered he remain in foster care. Mother’s court-ordered case
plan required her to (1) complete a 26-month domestic violence
program for victims, (2) participate in parenting education, and
(3) participate in individual counseling with a therapist.
Soon after the disposition hearing, mother moved to
Nebraska to live with a maternal uncle. While there, mother
reported to a Department social worker that she had completed a
parenting class, had enrolled in another parenting class, and was
on a list for a domestic violence program. The social worker told
mother the Department needed more information from mother
about the classes and program.
In September 2019, mother provided the Department with
confirmation she had completed a 16-week parenting program.
Mother, however, had yet to begin individual therapy or a
domestic violence class. During this period mother stayed in
contact with C.B. using FaceTime. On two occasions, once in June
and once in August, mother was in California and visited C.B. in
person.

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 At the six-month review hearing, the juvenile court found
continued jurisdiction was necessary. Among other things, the
juvenile court found mother was in “meager” compliance with the
case plan. Accordingly, the juvenile court ordered continued
reunification services and set the 12-month review hearing.
By October 2019, mother had enrolled in a domestic
violence program and individual counseling. Mother, however,
completed only three individual counseling sessions and two
domestic violence classes before leaving the program. During this
review period, mother failed to keep in contact with the
Department. More specifically, mother failed to return emails
and phone calls. The Department was, therefore, unable to
schedule meetings with her. Mother’s physical visits with C.B.
were limited during this period although she maintained
FaceTime visits two or three times a week. In November 2019,
C.B. was placed with paternal grandmother in Nebraska. In April
2020, the Department recommended termination of reunification
services.
In May 2020, maternal grandmother reported the parents
had arrived unexpectedly in Nebraska. They told paternal
grandmother they drove from California together. During this
time, a social worker from Nebraska reported the police were
investigating a new April 2020 domestic violence incident
between the parents. By June 2020, the parents had moved back
to California together. After the parents moved to California,
they would FaceTime C.B. together once or twice a week.
In September 2020, the Department reported it had
received no contact from mother despite its emails requesting
contact. Moreover, mother failed to attend the 12-month review
hearing in October 2020 even though the hearing had been

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continued to give her proper notice. At the hearing, the juvenile
court found the Department had provided the parents with 20
months of reasonable family reunification services, but the
parents had failed to comply. Consequently, the juvenile court
terminated family reunification services and set a section 366.26
hearing for February 2021.
On January 27, 2021, mother filed a section 388 petition
request to change the juvenile court’s order to terminate
reunification services. Mother requested the juvenile court take
the section 366.26 hearing off calendar and either release C.B. to
her or reinstate family reunification services and grant mother
unmonitored overnight visits. The juvenile court summarily
denied the petition finding mother was in partial compliance with
her case plan and the circumstances were changing, but had not
changed. Mother timely appealed.3
By the time of the February 2021 hearing, the parents were
no longer visiting with C.B. although they telephoned weekly.
Additionally, paternal grandmother disclosed she wanted to
provide C.B. permanency through adoption.
The juvenile court continued the section 366.26 hearing
from February to April 2021. On April 2, 2021, mother filed
another section 388 petition. This petition was identical to the
February petition other than an added letter from Single Parents
of Power Counseling Agency dated February 9, 2021. The letter
indicated mother completed 20 sessions of both individual
counseling and domestic violence classes.

3 Immediately after the denial of her first section 388
petition, mother filed a second section 388 petition. Mother did
not appeal the denial of the second petition. It is, therefore, not at
issue in this appeal.

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 On April 16, 2021, the juvenile court denied mother’s 388
petition without a hearing. It found mother’s circumstances had
not sufficiently changed and mother’s request was not in C.B.’s
best interest. Mother timely appealed. After denying mother’s
section 388 petition, the juvenile court terminated her parental
rights.

DISCUSSION

I. Denial of Section 388 Petition

A. Legal Principles and Standard of Review

“Section 388 accords a parent the right to petition the
juvenile court for modification of any of its orders based upon
changed circumstances or new evidence. [Citations.]” (In re
Alayah J. (2017) 9 Cal.App.5th 469, 478, fn. omitted.) “The
[parent] has the burden of showing by a preponderance of the
evidence (1) that there is new evidence or a change of
circumstances and (2) that the proposed modification would be in
the best interests of the child. [Citations.]” (In re Mickel O. (2011)
197 Cal.App.4th 586, 615.) “In considering whether the [parent]
has made the requisite showing, the juvenile court may consider
the entire factual and procedural history of the case. [Citation.]”
(Id. at p. 616.)
The juvenile court must hold an evidentiary hearing on a
section 388 petition only if the petitioner makes a prima facie
showing that circumstances have changed since the prior court
order and that the proposed change of court order will be in the
child’s best interests. (Cal. Rules of Court, rule 5.570(a), (d), (e);
In re G.B. (2014) 227 Cal.App.4th 1147, 1157.) While courts are to
liberally construe section 388 petitions, “‘[t]he prima facie

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requirement is not met unless the facts alleged, if supported by
evidence given credit at the hearing, would sustain a favorable
decision on the petition.’ [Citations.] The petition may not consist
of ‘general, conclusory allegations,’” and should include
declarations or other attachments demonstrating the showing to
be made at an evidentiary hearing. (In re Samuel A. (2020) 55
Cal.App.5th 1, 7, (Samuel A.).) In other words, a prima facie case
“is not made . . . if the allegations would fail to sustain a
favorable decision even if they were found to be true at a
hearing.” (In re G.B., supra, 227 Cal.App.4th at p. 1157; see ibid.
[a “prima facie case is made if the allegations demonstrate that
[the] two elements are supported by probable cause”].)
“Section 388 provides an ‘“escape mechanism”’ for parents
facing termination of their parental rights by allowing the
juvenile court to consider a legitimate change in the parent’s
circumstances after reunification services have been terminated.
[Citation.] This procedural mechanism, viewed in the context of
the dependency scheme as a whole, provides the parent due
process while accommodating the child’s right to stability and
permanency. [Citation.] After reunification services have been
terminated, it is presumed that continued out-of-home care is in
the child’s best interests. [Citation.] Section 388 allows a parent
to rebut that presumption by demonstrating changed
circumstances that would warrant modification of a prior court
order. [Citation.]” (In re Alayah J., supra, 9 Cal.App.5th at p.
478.)
With respect to the first prong of the test set forth above,
“the [parent] must show changed, not changing, circumstances.
[Citation.] The change of circumstances or new evidence ‘must be
of such significant nature that it requires a setting aside or

8
modification of the challenged prior order.’ [Citation.]” (In re
Mickel O., supra, 197 Cal.App.4th at p. 615.)
When evaluating the second prong, the court may consider
factors such as “the seriousness of the reason for the dependency
and the reason the problem was not overcome; the relative
strength of the parent-child and child-caretaker bonds and the
length of time the child has been in the system; and the nature of
the change in circumstances, the ease by which the change could
be achieved, and the reason the change was not made sooner.
[Citations.]” (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 446-
447.) Moreover, where, as here, “reunification services have been
terminated, the parents’ interest in the care, custody and
companionship of the child [is] no longer of overriding concern.
[Citation.] The focus then shifts to the child’s need for
permanency and stability, and there is a rebuttable presumption
that continued foster care is in the child’s best interests.
[Citations.]” (Id. at p. 448.) And, “[w]hen, as here, the permanent
plan is adoption, that presumption is even more difficult to
overcome. [Citation.]” (Id. at pp. 448-449.)
“We review the juvenile court’s denial of a section 388
petition for an abuse of discretion. [Citation.]” (In re Mickel O.,
supra, 197 Cal.App.4th at p. 616.) “‘[“]The appropriate test for
abuse of discretion is whether the trial court exceeded the bounds
of reason. When two or more inferences can reasonably be
deduced from the facts, the reviewing court has no authority to
substitute its decision for that of the trial court.” [Citation.]’
[Citation.]” (Ibid.)

B. Analysis

We note mother’s declaration attached to the second section
388 petition was verified by her attorney. The attorney’s

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verification was inadequate because her attorney did not have
personal knowledge of the facts alleged therein. Additionally,
mother’s attorney did not set forth the reasons why the
verification was not made by mother, as required when a party’s
attorney verifies a pleading on behalf of a party who is unable to
do so. (See Code Civ. Proc., § 446, subd. (a).) Mother’s declaration
was, therefore, not made under penalty of perjury under the laws
of the State of California. (See In re Ramone R. (2005) 132
Cal.App.4th 1339, 1348 [petition did not establish prima facie
showing because it was not verified by mother or accompanied by
mother’s sworn declaration supporting counsel’s allegations].)
Even if we were to overlook this procedural defect, we
would nevertheless agree with the juvenile court that mother’s
petition afforded no basis for the requested relief. We discuss the
reasons below.

1. Changed Circumstances

With respect to the first prong, mother argues the evidence
in both section 388 petitions show a change of circumstances. In
support, she emphasizes that per her declarations attached to her
petitions and accompanying exhibits, she: (1) “completed her
reunification services,” (2) described “in detail what she had
learned” from her services, (3) took “accountability” for failing to
protect C.B. from domestic violence, and (4) could now “provide a
safe and stable home” for C.B.
We disagree with mother’s arguments. This case arose
primarily due to concerns about mother’s long-standing and
unresolved domestic violence issues. The record reflects these
issues persisted throughout her participation in her court-ordered
case plan. Consequently, while we commend mother’s efforts
toward resolving her domestic violence issues, we cannot

10
conclude the juvenile court abused its discretion by finding she
showed “changing” rather than “changed” circumstances.
The record reflects mother has a long history of domestic
violence issues. A prior petition sustained against mother arose
from a domestic violence issue with father. The incident that
originally brought C.B. to the Department’s attention in this case
was also a domestic violence issue. Moreover, at the time this
matter arose, father had an active warrant stemming from a
separate domestic violence issue with mother. In April 2020, over
a year after the start of this dependency case, the parents’
relationship was still ongoing. At that time, father was charged
with strangulation stemming from a new domestic violence
incident with mother. Finally, based on the letter from mother’s
therapist, it appears mother was not forthcoming regarding her
continued relationship with father or about the new April 2020
domestic violence incident.
Mother argues she took responsibility for placing C.B. at
risk of domestic violence from the “start of the case” and points to
an email she wrote in January 2019. The record, however, shows
mother continued her relationship with father well after she
wrote the email. Over a year after the email, domestic violence
continued to be an issue between the parents. For example, as
noted above, in April 2020, father was criminally charged for
strangling mother. Additionally, mother contradicts herself as
she also claims she did not “realize” the relationship with father
would not change until April 2020, over a year after she wrote
the email.
With respect to mother’s completion of domestic violence
classes, mother provides conflicting evidence in support of her
petition. The record is not clear that mother competed both the

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domestic violence program and individual counseling. Moreover,
it cannot be reasonably argued that mother participated
regularly in the court-ordered treatment programs. The letter
attached to mother’s second section 388 petition refers to a May
19, 2020 progress letter. The progress letter was not, however,
attached to the petition. Additionally, the February 2021 letter
states mother completed a total of 26 sessions. The letter,
however, does not indicate which classes were domestic violence
and which were individual counseling. Finally, the letter states
mother was provided a certificate of completion indicating she
attended 20 sessions for each service, for a total of 40 sessions.
Mother, however, did not include the certificate in her petition.
While mother’s petition did include a certificate stating she
completed domestic violence classes for victims, the certificate is
not dated, does not state how many sessions of domestic violence
counseling mother completed, nor does it mention individual
counseling.
Based on this evidence, the juvenile court could reasonably
conclude mother failed to demonstrate she had completed all
court-ordered services and did not establish she had resolved her
domestic violence issues. Accordingly, the juvenile court did not
“exceed[ ] the bounds of reason” (In re Mickel O., supra, 197
Cal.App.4th at p. 616) by finding mother failed to show a change
in circumstances “‘of such significant nature’” to justify setting
aside the prior order terminating her reunification services. (Id.
at p. 615.)
In support of her arguments, mother compares her case to
In re Hashem H. (1996) 45 Cal.App.4th 1791 (Hashem H.).
There, the petitioning parent described her continuous
participation in therapy and attached a letter from her therapist

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describing her progress in therapy and her ability to care for the
child. (Id. at pp. 1796-1799.) Here, as noted above, mother did not
conclusively demonstrate she had completed all court-ordered
services or that she had overcome the problems which led to the
dependency jurisdiction. (Cf. In re I.B. (2020) 53 Cal.App.5th 133,
157 [mother’s untangling herself from father’s financial control,
understanding of what was necessary to permanently leave
father, and ability to stay away from father for eight months
despite his offers to provide assistance demonstrated changed
circumstances] & In re J.M. (2020) 50 Cal.App.5th 833, 846
[concluding mother offered substantial evidence she had
completed all domestic violence training, she resolved the
domestic violence underlying the initial dependency petition, and
she had not been in another potentially violent or abusive
relationship].)

2. Child’s Best Interest

In addressing the second prong, mother argues “she had a
preexisting bond with [C.B.], and she was now able to provide a
safe environment filled with love and support.” Considering the
factors set forth in In re Aaliyah R., supra, 136 Cal.App.4th at pp.
446-447, we conclude the juvenile court did not abuse its
discretion by finding the requested order was not in C.B.’s best
interests.
First, as discussed above, mother has not shown she has
resolved her long-standing, domestic abuse issues giving rise to
this case. (Section I.B.1, ante.)
Next, C.B. has not been in mother’s care for much of his
life. He was placed in foster care when he was three years old and
has not lived with mother since then. Moreover, C.B. has lived
with paternal grandmother, his prospective adoptive parent,

13
consistently since November 2019. Thus, by the time of the final
hearing on mother’s section 388 petition, C.B. had not been in
mother’s care for over two and a half years, almost half of his life.
Third, the record demonstrates C.B. views his placement
residence as his home and has a strong bond with paternal
grandmother. He refers to mother by her first name and refers to
paternal grandmother as “mom.” C.B. appeared to be thriving in
his placement with paternal grandmother and was bonded to her.
The social worker from Nebraska reported C.B. was very
affectionate to paternal grandmother and would hug and kiss her
without being prompted.
Lastly, the evidence regarding mother’s visits with C.B.
demonstrates that at the time of her section 388 petitions, C.B.’s
bond with mother was not similar in nature or strength to the
bond he had with paternal grandmother. After C.B. was placed
with paternal grandmother, mother visited C.B. only periodically.
After the parents moved back to California in June 2020, the
parents visited with C.B. only via FaceTime. Additionally, C.B.
did not remember ever living with his parents.
Given his strong attachment to paternal grandmother, and
the sense of stability and normalcy she provided for C.B., the
Department opined that C.B. “would be placed at risk of physical
and emotional harm again if he were released to either parent’s
care.”
Mother asks us to focus on the bond between her and C.B.
at the time this case began. Moreover, she points to her regular
phone calls to C.B. after the juvenile court terminated
reunification services. Finally, mother points to C.B.’s comment
that it was sad he had not seen his parents in a long time. Her
arguments are unavailing because, as noted above, “[w]hen two

14
or more inferences can reasonably be deduced from the facts, [we]
ha[ve] no authority to substitute [our] decision for that of the
trial court.” [Citation.]’ [Citation.]” (In re Mickel O., supra, 197
Cal.App.4th at p. 616; see also In re Anthony W. (2001) 87
Cal.App.4th 246, 251 [“Mother made no showing how it would be
[in] the children’s best interest to continue reunification services,
to remove them from their comfortable and secure placement to
live with mother who has . . . a recurring pattern of domestic
violence in front of the children”].) Moreover, “[t]he fact that the
parent ‘makes relatively last-minute (albeit genuine) changes’
does not automatically tip the scale in the parent’s favor.” (In re
D.R. (2011) 193 Cal.App.4th 1494, 1512.)
In support of her argument that she had a substantial bond
with C.B., mother cites In re Aljamie D. (2000) 84 Cal.App.4th
424. Mother’s reliance on In re Aljamie D. is misplaced. There,
unlike in this case, two minors repeatedly stated and ultimately
testified about their desire to live with their mother. (Id. at p.
432.) Here, other than C.B.’s comment that he was sad he had
not seen his parents in a long time, there is nothing in the record
to support mother’s contention she had a close bond with him. In
fact, as noted above, C.B. did not remember living with his
parents.
Accordingly, on the record before us, we conclude the
juvenile court could reasonably find mother’s bond with C.B. was
not of such a strong, compelling nature to rebut the presumption
that it was in C.B.’s best interests to remain in the care of
paternal grandmother. (See In re Aaliyah R., supra, 136
Cal.App.4th at p. 448.) The court therefore did not “exceed[ ] the
bounds of reason” (In re Mickel O., supra, 197 Cal.App.4th at p.
616) by finding that it was not in C.B..’s best interests to return

15
him to mother, to allow mother to have overnight or unmonitored
visits, or to grant mother further reunification services.

3. Conclusion
For the reasons discussed above, the juvenile court did not
abuse its discretion by denying mother’s section 388 petitions.

DISPOSITION

The orders denying mother’s section 388 petitions and
terminating mother’s parental rights are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CURREY, J.

We concur:

MANELLA, P.J.

COLLINS, J.

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