In re Ella H. CA4/1

Filed 7/7/22 In re Ella H. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re ELLA H., a Person Coming
Under the Juvenile Court Law.
D079778
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. NJ14646)

Plaintiff and Respondent,

v.

A.H.,

Defendant and Appellant.

APPEAL from orders of the Superior Court of San Diego County,
Michael J. Imhoff, Commissioner. Affirmed in part, reversed in part, and
remanded with directions.
Jacob I. Olson, under appointment by the Court of Appeal, for
Defendant and Appellant.
Lonnie J. Eldridge, County Counsel, Caitlin E. Rae, Chief Deputy
County Counsel, and Eliza Molk, Deputy County Counsel, for Plaintiff and
Respondent.
 Four months after the juvenile court terminated her reunification
services, A.H. (Mother) filed a petition for modification under Welfare and

Institutions Code section 388 alleging changed circumstances.1 Claiming she
had maintained her sobriety and found suitable housing, Mother sought to
have her two-year-old daughter Ella H. placed with her. The juvenile court
denied the petition without holding an evidentiary hearing and proceeded
under section 366.26 to order a permanent plan of guardianship. It
authorized the guardians (the paternal grandparents) to move with their
granddaughter to Texas without specifying the duration and frequency of
Mother’s visits with Ella once she also relocated there.
Mother contends the juvenile court abused its discretion by summarily
denying her section 388 petition without an evidentiary hearing. As we
explain, Mother’s petition suggested that her circumstances were at best
“changing” rather than “changed,” and no hearing was required. Mother also
challenges the court’s visitation order, arguing the court abused its discretion
in granting her unsupervised visits with Ella in Texas without specifying the
frequency or duration of those visits. This claim is appropriately conceded by
the San Diego County Health and Human Services Agency (Agency). We
accordingly remand the matter for the limited purpose of allowing the
juvenile court to specify the frequency and duration of Mother’s visitation
under the guardianship.
FACTUAL AND PROCEDURAL BACKGROUND
At birth, Ella tested positive for amphetamines and showed withdrawal
symptoms. Ella’s father N.W. (Father) told a social worker that Mother
might have “ ‘slipped up’ ” and used methamphetamine toward the end of her

1 Further undesignated statutory references are to the Welfare and
Institutions Code.
2
pregnancy. Mother acknowledged using methamphetamine up until the
fourth or fifth month of her pregnancy, but said she was not sure how she
and Ella tested positive for amphetamines when Ella was born. She would
later admit relapsing the night before Ella’s birth.
The Agency filed a petition under section 300, subdivision (b). Ella was
removed from Mother’s custody and placed in the care of her paternal
grandparents. Twenty-nine at the time of Ella’s birth, Mother admitted to
the social worker that she had used drugs since the age of 14 and struggled
with sobriety ever since. At the jurisdiction and disposition hearing in
February 2019, the court declared Ella a dependent, required her to remain
outside Mother’s care, and ordered family reunification services for both
parents. Mother’s case plan included parenting education, substance abuse
services, and substance abuse testing.
Over the next six months, Mother disclosed that she consumed alcohol
but explained she did not consider it a relapse. Her visitation with Ella was
consistent and progressed to unsupervised visits. She completed her court-
ordered treatment services by September 2019. The Agency nonetheless
raised concerns about Mother’s sobriety after she failed to test twice and had
a diluted test. It believed that Mother lacked insight into how her
relationship with Ella’s father and other users could impact her recovery and
place Ella in danger. At a contested six-month review hearing in October
2019, the court continued family reunification services for Mother but
terminated Father’s services.
Mother continued to have regular and consistent visitation with Ella
for the next several months. However, the Agency expressed concern that
Mother continued to maintain contact with Father—who was actively using—
given her admission that “being around people who use” had triggered her

3
past drug relapses. Mother admitted that she had been using drugs on and
off for 15 years before Ella was removed from her care; her longest period of
sobriety before the dependency case was three months. Acknowledging she
was participating in substance abuse treatment, the Agency nevertheless
believed that Mother lacked insight into what was required to maintain her
sobriety and failed to establish boundaries with those who were actively
using. It therefore recommended terminating Mother’s reunification services.
In March 2020, in-person visitation was suspended due to the COVID-
19 pandemic. Mother stopped communicating with the Agency around this
time, raising questions as to her sobriety. She continued to associate with
Father, who was actively using drugs. Troubled by her continued interaction
with Father, her failure to test since the end of February, and her failure to
communicate with the social worker, the Agency sought in August 2020 to
revert Mother to supervised visits. The court denied that request, keeping
visitation unsupervised. Mother continued to associate with Father and was
arrested in October after an altercation between the two.
The contested 12-month review hearing was repeatedly postponed. The
Agency noted in its April 2021 report that Mother missed three drug tests
between December 2020 and March 2021. She admitted she did not complete
a requested drug test because she had consumed alcohol. She additionally
sent messages to friends asking for clean urine to pass a drug test, offering
drugs, and asking to smoke a bowl. During a recorded conversation with
Father, the Agency heard Mother audibly smoke a substance from what she
identified as a bong. Due to these ongoing concerns, the Agency and Ella
requested that Mother be required to submit to a hair follicle test. The court
granted that request.

4
 The contested 12-month review hearing was finally held in June 2021.
In an addendum report filed before that hearing, the Agency noted that while
it was clear Mother loved Ella, concerns lingered about her sobriety given her
consistent contact with Father and failure to submit to a scheduled hair
follicle test. Noting that Mother had used methamphetamine since she was a
teenager and had parental rights terminated over her two older children “due
to concerns over her long-standing substance abuse issues,” the Agency
indicated it lacked “definitive evidence that the mother has achieved, or
maintained any prolonged sobriety.” Once more, the Agency recommended
terminating Mother’s reunification services and setting a permanency
planning hearing. Ella’s counsel joined in that request, questioning Mother’s
sobriety and her ability to secure appropriate housing for Ella. Mother
objected to setting a permanency plan and asked the court to return Ella to
her care. Despite evidence of alcohol use, she “never had a positive test.”
Mother claimed she maintained her sobriety, interacted appropriately with
Ella, and had obtained housing.
Adopting the Agency’s recommendation, the court terminated Mother’s
reunification services at the 12-month review hearing. While commending
Mother for completing her treatment programs and regularly and
consistently visiting Ella, the court found circumstantial evidence that she
was not sober. Throughout the pendency of the case, there was never any
significant period of consistent negative tests, and there was concern about
adulterated tests. While Mother had “on many occasions attempted in good
faith and expended great energy in trying to overcome” her obstacles, the
record indicated that she “has not maintained her sobriety, and that it is a
significant remaining issue in the case.” Terminating Mother’s services, the
court set a permanency plan hearing under section 366.26.

5
 In a report filed in September, the Agency recommended terminating
Mother’s parental rights and ordering a permanent plan of adoption. The
Agency expressed concern about an incident that took place in August:
Mother arrived to pick up Ella for a visit and after a verbal altercation spit in
paternal grandfather’s face, prompting him to obtain a restraining order
against her. The report noted that Mother wanted Ella returned to her care.
Claiming she had maintained her sobriety, no longer associated with drug
users, participated actively in Narcotics Anonymous (NA), and met regularly
with her sponsor, Mother told the social worker she had made strides in
getting her life together. The Agency discounted this proffer because Mother
did not provide documentation of her progress or contact information for her
sponsor when asked. The Agency indicated that Mother was currently living
with her parents, and had been approved for Section 8 housing on her own.
She was searching for employment but relying on unemployment insurance
to meet her daily needs. Although the Agency acknowledged a parent-child
relationship between Ella and Mother, it believed preserving that
relationship did not outweigh the benefits of adoption.
Two weeks passed. In October, Mother filed a petition under section
388 seeking to modify the court’s June 2021 order terminating her
reunification services. Noting that services had been terminated “due to
suspected substance abuse and unstable housing,” Mother maintained she
had addressed both concerns. She claimed she was living with her parents in
stable housing that Ella could share and that she had maintained her
sobriety by avoiding triggers and staying away from drug users. The petition
also alleged that Mother continued to attend NA meetings and engaged with
her long-time sponsor. Attached to her petition were two letters. The first
was from her sponsor stating that Mother “has really been making an

6
attempt at changing her life around for the better” and “making smarter
choices” by living with her parents and appearing for virtual NA meetings.
A separate letter from a clinic indicated that Mother had attended 21
substance abuse treatment sessions between October 2020 and March 2021.
In an addendum report filed in November, the Agency opposed
Mother’s section 388 petition. It noted that Mother had yet to provide
documentation of her continued efforts in maintaining sobriety or contact
information for her sponsor. There was nothing in the Agency’s record
showing drug treatment after March 2021, and Mother’s last drug test with
the Agency was in April 2021. There was no indication Mother could
financially provide for Ella. And although she said she was living with her
parents, they told the social worker Mother did not reside in their home. As a
separate matter, the Agency noted that the caregivers’ restraining order
against Mother complicated her visitation. Finally, despite Mother’s claim
that she was staying away from drug users, she was unable to provide the
Agency with individuals who were cleared to pick up Ella given their criminal
or substance abuse histories.
As to best interests, the Agency noted that Ella had “a relationship
with her mother, enjoys her visits and expresses excitement when she visits
with her.” The paternal grandparents expressed interest in providing
permanency through guardianship to maintain the parent-child relationship,
and Mother was not in a position to care for Ella full time. For these reasons,
it asked the court to summarily deny the section 388 petition. Moving on to
Ella’s permanent plan, the Agency amended its earlier stance and
recommended legal guardianship to preserve Ella’s established relationships
with Mother and the maternal side of her family.

7
 The court held a combined section 388 and 366.26 hearing on December
1, 2021. That morning, Mother amended her petition to provide her new
residential address in San Marcos and pictures depicting a bedroom with a
bed and children’s play set. The Agency and Ella argued that Mother had
failed to make a prima facie case of changed circumstances with respect to
her sobriety to warrant an evidentiary hearing. When asked to comment,
Ella’s paternal grandfather said he did not believe Mother was staying clean
and sober. Mother’s counsel, by contrast, argued that her housing was stable;
she had a clean room for Ella and necessities for her care; and even the
Agency acknowledged the mother-child bond. Mother had never tested
positive for drugs. Mother believed she met her burden to make a prima facie
case of changed circumstances and best interests and was entitled to an
evidentiary hearing.
Seeking clarification, the court asked Mother for details about her new
residence. Mother stated she had not signed a formal lease but was staying
there until she could save enough to get her own place. Mother had lived in
that house with its five other occupants for about two months.
The court summarily denied Mother’s petition, concluding she did not
make a prima facie showing of changed circumstances. Mother claimed
changed circumstances based on a new residence and continued sobriety.
The court questioned Mother’s claim of stable housing where she waited until
the hearing date to share her new address and offered nothing more than a
few photographs of a bedroom. Regarding Mother’s continued sobriety, the
court noted that nothing had changed. Mother had refused a drug test in
May 2021, raising questions about her sobriety and prompting the court to
terminate reunification services and set a section 366.26 hearing. Even if
circumstances had changed, the court reasoned that Mother failed to

8
establish that placement with her would serve Ella’s best interests. It again
highlighted how little was known about Mother’s living arrangements. With
so many unknowns, the court could not find it would serve Ella’s best
interests to return to her mother’s care.
Turning to the section 366.26 hearing, the Agency recommended a plan
of legal guardianship with supervised visitation by video at least twice a
month and in-person visits at least twice per year on Saturday and Sunday
for four hours. Mother’s counsel noted that this was less visitation than what
Mother currently had. Ella’s counsel agreed that Mother should have more
frequent in-person visitation than twice a year.
The court adopted the Agency’s recommendation to order a permanent
plan of legal guardianship. Although Ella was likely to be adopted, it found
that exceptions to terminating Mother’s parental rights applied. First, Ella’s
current caretakers wished to pursue guardianship, and it would harm Ella to
remove her from their care. Second, Ella had an established and positive
relationship with Mother such that the beneficial parent-child relationship
exception applied. It issued letters designating Ella’s paternal grandparents
as her legal guardians.
It was known to everyone by the time of this hearing that Ella’s
paternal grandparents had retired and wanted to move to Texas. The court
allowed them to relocate to Texas with Ella in December. Until that date,
Mother would have two unsupervised visits with Ella. Mother indicated that
she wanted to move to Texas in the future. Because the paternal grandfather
had an elder abuse restraining order against her, visitation in Texas would
have to be coordinated through an intermediary—specifically, paternal
grandfather’s adult daughter Tracy. Tracy would arrange phone, video, and
social media contact with Ella, as well as exchange letters or gifts with

9
Mother once the guardians moved to Texas. After Mother relocated there,
Tracy would be “the intermediary to arrange for the mother’s unsupervised
visits on a daytime basis,” with the parties agreeing “to the pickup and drop
off and what the itinerary would be.”

DISCUSSION
Mother raises two arguments on appeal. First, she claims the juvenile
court abused its discretion in denying her section 388 petition without
holding an evidentiary hearing. Second, she argues remand is necessary for
the court to specify the frequency and duration of her visitation following her
anticipated relocation to Texas. We reject the first claim but accept the
second and send the matter back for limited proceedings to clarify the
visitation order.

A. Section 388 Petition
Section 388, subdivision (a) allows a parent to change, modify, or set
aside a prior juvenile court order “ ‘if the petitioner establishes by a
preponderance of the evidence that (1) new evidence or changed
circumstances exist[,] and (2) the proposed change would promote the best
interests of the child.’ ” (In re Mary G. (2007) 151 Cal.App.4th 184, 205
(Mary G.).) A parent who makes a prima facie showing of both elements has
a right to an evidentiary hearing, and the petition must be liberally
construed in favor of granting a hearing. (Ibid.; see Cal. Rules of Court, rule
5.570(a).)
Despite the permissive standard, no hearing is required if the liberally
construed allegations in the petition do not make a prima facie showing of
changed circumstances and that the proposed change would promote the
child’s best interests. (Mary G., supra, 151 Cal.App.4th at p. 205; see In re
G.B. (2014) 227 Cal.App.4th 1147, 1157; Cal. Rules of Court, rule 5.570(d)(1).)

10
“ ‘The prima facie requirement is not met unless the facts alleged, if
supported by evidence given credit at a hearing, would sustain a favorable
decision on the petition.’ ” (Mary G., at p. 205, citing In re Zachary G. (1999)
77 Cal.App.4th 799, 806.) “In determining whether the petition makes the
required showing, the court may consider the entire factual and procedural
history of the case.” (In re K.L. (2016) 248 Cal.App.4th 52, 62; see In re
Daniel F. (2021) 64 Cal.App.5th 701, 711.) A petition “must show changed,
not changing, circumstances.” (In re Mickel O. (2011) 197 Cal.App.4th 586,
615.) We review the denial of a section 388 petition without an evidentiary
hearing for abuse of discretion, reversing only if the court’s ruling was
arbitrary capricious, or patently absurd. (Mary G., at p. 205; In re G.B., at
p. 1158.)
Applying that standard, we conclude no error occurred. Mother’s
section 388 petition alleged changed circumstances based on her continued
sobriety and finding a new place of residence. The petition did not
demonstrate a prima facie case of either.
As to her housing, Mother alleged in her October 2021 petition that she
was living with her parents. In November, the Agency discovered this was
untrue. Mother amended her petition on the day of the hearing to provide a
new address and photos. In so doing, she demonstrated that her housing
situation was at best changing, not changed. She admitted not having a
lease or formal rental arrangement at her new address and reported that she
was staying with a friend “for as long as I need in hopes that I’m going to get
my own housing.” The home was owned by a person named Wanda, who
lived there with her two sons and two grandchildren. Mother claimed she
had been staying there for the past month and a half or two months, since
late October.

11
 Mother’s last-minute housing assertions were properly assessed in light
of the procedural history of the case. When the dependency petition was
filed, Mother was homeless and “bouncing around.” Six months later, she
was again homeless. She lived with Father or a different boyfriend at various
points, and sometimes stayed with friends or her parents. Two months
before the court terminated reunification services, Mother reported staying at
a hotel and having no money. As of June 2021, the Agency did not know if
she had located housing. By September, she was living with her parents and
moved out a month later. Even crediting her assertion in December 2021
that she had lived with Wanda without any formal lease for the previous two
months, Mother at best demonstrated that her housing situation might be
changing.
The proffer was likewise deficient as to her sobriety. Despite the
Agency’s request, Mother failed to provide documentation to support her
claim that she was sober and continuing with treatment. Mother had not
drug tested since April 2021 or documented any treatment since March 2021.
A letter from her sponsor stated Mother had been “making an attempt at
changing her life around” and “making smarter choices,” including by
appearing for virtual NA meetings. But accepting this as true, Mother
merely showed that circumstances were changing, not changed. The letter
from the clinic corroborated what the parties and the court already knew—
Mother attended substance abuse treatment through March 2021. Missing
from Mother’s offer of proof was any showing that she had become sober
between the time of the June 2021 review hearing and her section 388
petition three months later. At the June hearing, the court commended
Mother for expending energy in trying to maintain sobriety but expressed

12
concern with her missed and adulterated tests. Nothing in the petition
suggested that circumstances had changed.
Mother admitted using methamphetamine since her teenage years.
Over the fifteen years since, she struggled to maintain sobriety for more than
three months at a stretch. She lost custody of her two older children due to
her drug use. The court appropriately considered the entire factual and
procedural history of the dependency case in summarily denying Mother’s
petition. And, given the severity of her drug problem, it could reasonably find
that her alleged sobriety between June and December “was not particularly
compelling.” (Mary G., supra, 151 Cal.App.4th at p. 206.) Faced with similar
records of lengthy substance abuse punctuated by intermittent periods of
sobriety, courts routinely uphold the summary denial of a section 388
petition. (Ibid.; see also In re Angel B. (2002) 97 Cal.App.4th 454, 463
[although mother completed a drug program, her brief sobriety paled in
comparison to her years of addiction, and she was unable to remain sober in
the past even when the stakes involved losing her other child]; In re Ernesto
R. (2014) 230 Cal.App.4th 219, 223 [despite her completion of a drug
treatment program, mother’s recent sobriety merely reflected changing
circumstances given her history of relapses].)
Because Mother did not establish a prima facie case of changed
circumstances, the juvenile court did not abuse its discretion in denying her

petition without holding an evidentiary hearing.2

2 Given this conclusion, we need not address whether Mother made a
prima facie showing that returning Ella to her would promote the child’s best
interests.
13
B. Visitation Order
Mother separately argued the juvenile court abused its discretion in
failing to specify the frequency and duration of her visits under the
guardianship. The Agency appropriately concedes error and urges a limited
remand to permit the juvenile court to specify the frequency and duration of
Mother’s visitation in Texas.
During the section 366.26 hearing, the juvenile court selected a
permanent plan of guardianship. Ella’s paternal grandparents were selected
as her legal guardians, and Mother was allowed unsupervised visitation. An
attachment to the letters of guardianship ordered that after Mother relocated
to Texas, Ella’s aunt Tracy would be the intermediary, facilitating Mother’s

unsupervised visits with Ella.3 But the court did not specify the frequency or
duration of Mother’s visits once she moved to Texas.
When a juvenile court selects a permanent plan of guardianship, it
must order parental visitation “unless the court finds by a preponderance of
the evidence that the visitation would be detrimental to the physical or
emotional well-being of the child.” (§ 366.26, subd. (c)(4)(C).) “The court has
the sole power to determine whether visitation will occur.” (In re E.T. (2013)
217 Cal.App.4th 426, 439.) Although it may give the legal guardians
discretion over the time, place, or manner of visits, it may not delegate the
frequency or duration of visits to the discretion of the guardian or an
intermediary. (In re M.R. (2005) 132 Cal.App.4th 269, 274.) Here, the court’s
visitation order failed to give any indication about the frequency or duration
of Mother’s visits, effectively vesting discretion in Ella’s guardians or in Tracy
(the intermediary) to decide whether visitation would actually occur.

3 The attachment described Tracy as “the maternal aunt.” As Mother
notes, Tracy was the daughter of Ella’s paternal grandparents.
14
Remand is required to allow the juvenile court to add the necessary specifics
to its order. (In re Rebecca S. (2010) 181 Cal.App.4th 1310, 1314 (Rebecca S.);
In re E.T., at p. 439.)
DISPOSITION
The portion of the order regarding visitation is reversed, and the
matter is remanded to the juvenile court with directions to specify the
frequency and duration of Mother’s visits. (Rebecca S., supra, 181
Cal.App.4th at p. 1315.) The court in making an appropriate visitation order
may of course consider current circumstances of the parties, including
Mother’s place of residence and any existing restraining order against her. In
all other respects, the orders dated December 1, 2021, denying Mother’s
section 388 petition and selecting a permanent plan of legal guardianship are
affirmed.

DATO, J.

WE CONCUR:

HALLER, Acting P. J.

BUCHANAN, J.

15