In re S.A. CA4/1

Filed 11/18/22 In re S.A. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re S.A., a Person Coming Under
the Juvenile Court Law.
D080561
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES AGENCY,
(Super. Ct. No. NJ15770A)
Plaintiff and Respondent,

v.

A.P.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County,
Michael Imhoff, Commissioner. Affirmed.
Christopher R. Booth for Defendant and Appellant.
Claudia Silva, County Counsel, Caitlin E. Rae, Chief Deputy County
Counsel, and Katie Abajian, Deputy County Counsel for Plaintiff and
Respondent.
 In this dependency action, A.P. (Father) filed a Welfare and
Institutions Code section 3881 petition seeking to change the juvenile court’s
prior order placing his daughter, S.A., with M.M. (Mother) in California.
Father asked the juvenile court to instead place S.A. with him in Arizona.
The juvenile court denied this request, and Father appealed, contending the
juvenile court abused its discretion by finding that he did not carry his
burden under section 388 to show new evidence or a change of circumstances
warranting the requested change in S.A.’s placement and that the requested
placement change was in S.A.’s best interest. We conclude the court did not
abuse its discretion and affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND2

A. The section 300 petition and detention hearing
In August 2021, the San Diego County Health and Human Services
Agency (the Agency) petitioned the juvenile court under section 300,
subdivision (b), on behalf of minor S.A. The Agency alleged there was a
substantial risk S.A. would suffer serious physical harm or illness due to
Mother’s delusional and paranoid thoughts and her recent attempt to run
into oncoming traffic with S.A. and S.A.’s younger half-brother, E.M.3

1 All further statutory references are to the Welfare and Institutions
Code unless otherwise designated.

2 “In accord with the usual rules on appeal, we state the facts in the
manner most favorable to the dependency court’s order.” (In re Janee W.
(2006) 140 Cal.App.4th 1444, 1448, fn. 1.)

3 E.M. is also the subject of the juvenile court proceedings, but because
this appeal concerns only S.A., we limit our discussion of E.M. accordingly.

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 At the detention hearing, the juvenile court ordered that S.A. be
detained with Mother in San Diego under various conditions, including that
Mother reside in maternal grandmother’s home, not be unsupervised with the
children outside of the home, and follow all court orders regarding visitation
with Father. The court also granted Father—who lived in Arizona—
unsupervised visitation with S.A. every weekend with weekly visitation by
telephone.
B. The jurisdictional and dispositional hearings
At the continued jurisdictional hearing, the court made a true finding
on the petition by clear and convincing evidence, and Father set a contested
dispositional hearing regarding S.A.’s placement.
At the November 8, 2021 contested dispositional hearing, the court
considered each of the reports in evidence, including the Agency’s
jurisdiction/disposition report and October 2021 addendum report. In its
reports, the Agency recommended that S.A. be placed with Mother on the
condition that Mother continue to follow court orders from the detention
hearing and that Father receive enhancement services. The Agency’s
addendum report reflected that S.A. had said she felt safe at Mother’s home,
felt safe with Father, and that she did not know how she felt about visiting
Father in Arizona.
Mother, the Agency, and S.A.’s counsel asked the court to order the
case plan as written, including the Agency’s recommendation that S.A. be
placed with Mother. Father’s counsel stated that Father had previously
anticipated asking for placement, but he did not do so at the hearing and did
not voice any opposition to the Agency’s recommendation of placement with
Mother. Based on the evidence, the court placed S.A. with Mother, pursuant
to section 361(a). The court also amended the visitation schedule in response
to Father’s request for two fewer weekends per month with S.A., due to the

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expense and burden on Father of traveling from Arizona to see S.A. in
California.
C. Special hearings regarding visitation
The court held special hearings on November 17, 2021 and April 6,
2022 to address Father’s complaints about Mother obstructing his visitation.
During the November 17, 2021 hearing, Father’s counsel expressed concern
that after Father had driven from Arizona to California for a recent visit with
S.A., the child was unavailable and Mother and S.A.’s phones were turned
off. The court ordered that Father would have visits with S.A. every other
week and that he would pick up and drop off S.A. from school.
At the April 6, 2022 hearing, Father’s counsel stated that two weeks
before, Father tried to pick up S.A. from school, but Mother arrived at the
same time, physically took S.A. from him, and made comments about not
doing anything that was not spelled out in a court order. This incident was
also outlined in the Agency’s April 6, 2022 supplemental report. In its report,
the Agency stated that despite Mother’s lack of cooperation with visitation,
the Agency still believed it was in S.A.’s best interest to remain in her current
placement because S.A. had always lived with Mother and the maternal
family, attended school in San Diego, had friends both in her school and
neighborhood, and her main support and connections were in San Diego. The
report further stated that S.A. enjoyed visits with Father but that she
indicated that she wanted to live only with Mother.
Mother’s counsel stated that he had discussed the situation with
Mother and that she would comply with the visitation schedule moving
forward. The court then ordered specific times and dates for Father to pick
up S.A. from school without Mother’s interference and set a hearing for
Father’s recently-filed section 388 petition.

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D. Father’s section 388 petition and the initial hearing
In his section 388 petition, Father contended that the court should
change its November 8, 2021 order placing S.A. with Mother in California,
and instead, place S.A. with him in Arizona. Father contended this would be
in S.A.’s best interest because S.A. “would have the benefit of a relationship
with both parents.”
As changed circumstances justifying his petition, Father stated that
Mother continued to make it difficult for him to visit with S.A. and failed to
ensure S.A.’s regular school attendance. Father attached e-mails
substantiating the multiple times—including on November 12, 2021;
December 24, 2021; February 26, 2022; and March 25, 2022—during which
Mother obstructed his scheduled visits with S.A. In one of these e-mails,
Father also complained that S.A. had “horrible” school attendance and that
Mother had not provided a doctor’s note for each time that S.A. was absent
from school for being sick. He also attached an attendance sheet reflecting
that S.A. was absent from school for 18 out of 120 days (15 percent of the
time) while in Mother’s custody.
At the May 9, 2022 initial hearing on Father’s section 388 petition,
Father asked the court to make a prima facie finding on his petition and to
set an evidentiary hearing. Specifically, Father contended that visitation had
been a problem for Father “since day one,” even prior to S.A.’s juvenile case.
He further contended that Mother’s failure to comply with the court’s
visitation order was a change in circumstances sufficient to warrant a prima
facie finding because there had been multiple incidents where Father
traveled from Arizona to California for his visitation with S.A., but Mother
“thwarted” it.
The Agency submitted on the prima facie finding without argument.
Mother opposed, contending there had not been a change of circumstances

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and it would not be in S.A.’s best interest to place her with Father. Mother
noted that S.A. had never lived away from Mother; that S.A. had a close bond
with her half-brother, E.M., who was also in the home; and that, as reflected
in the Agency’s report, S.A. stated she did not want even extended visits with
Father and instead said that she only wanted two days with Father and then
to return to Mother’s home. S.A.’s counsel reiterated that it would not be in
S.A.’s best interest to separate her from her half-brother.
The court considered Father’s section 388 petition, the parties’
arguments, and the Agency’s reports and found that Father had carried his
prima facie burden. The court set an evidentiary hearing on Father’s section
388 petition.4
E. The evidentiary hearing on Father’s section 388 petition
At the June 13, 2022 evidentiary hearing on Father’s section 388
petition, Father asked the court to modify its placement order and place S.A.
with him in Arizona. He argued that he was available to care for S.A. and
that S.A.’s current placement with Mother was a “fictitious placement”
because of the condition that Mother could not leave the home
unsupervised—which Father contended she had violated. Father further
contended that he had a good relationship with S.A. and that S.A. was
comfortable visiting him in Arizona. Father argued in the alternative that if
S.A. was not removed from Mother, the court should modify the custodial
arrangement so that Father would have S.A. during school breaks.

4 The juvenile court must liberally construe a section 388 petition in
favor of its sufficiency for the granting of an evidentiary hearing. (In re
Marilyn H. (1993) 5 Cal.4th 295, 309.) The petitioner need not show a
probability of prevailing on the petition at a full hearing; rather, the
petitioner need only make a prima facie showing to trigger the evidentiary
hearing requirement. (In re Aljamie D. (2000) 84 Cal.App.4th 424, 432.)

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 The Agency opposed the petition’s request for a change in placement
and referred the court to the Agency’s May and June 2022 status reports.
The Agency’s May 2022 report stated S.A. had received weekly counseling
services with her school counselor from September 2021 to January 2022. In
April 2022, S.A.’s teacher suggested that S.A. would benefit from further
counseling services. Mother agreed, and the Agency reported that S.A. was
in the process of starting counseling services again with another school
counselor. The report stated Mother acknowledged that she had interfered
with Father’s visitation but indicated it was because she was anxious and
worried about something bad happening to S.A., and that she struggled with
being separated from S.A.
The Agency’s June 2022 report indicated that S.A. initially said she
would only like two-day visits with Father and then to return to Mother, but
she later expressed an interest in spending extended time with Father if she
could “sleepover with” paternal grandmother, whom she liked. The report
also stated that earlier in June 2022, Mother started therapy and began
taking medication for her anxiety disorder diagnosis.
Like the Agency, Mother opposed Father’s petition, arguing that a
change in placement was not in S.A.’s best interest. Mother pointed to the
Agency’s reports showing that S.A. felt safe and comfortable with her, that
S.A. wanted to stay with Mother, and that there had not been any safety
concerns regarding S.A. being in Mother’s care. She stated that S.A. was
close with her younger half-brother, who lived in the home, and that S.A. had
not spent any substantial amount of time outside of Mother’s care. Mother
further contended that, as indicated in the Agency’s addendum report, she
was now in therapy to address her separation anxiety, was taking
medication, and was responsive to the Agency.

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 S.A.’s counsel submitted on the changed circumstances prong of
Father’s petition but opposed the petition on the ground that removing S.A.
from her Mother and half-brother, with whom she was close, would not be in
S.A.’s best interest.
The court considered Father’s petition, the Agency’s reports—including
its May 9, 2022 and June 13, 2022 addendum reports—and a psychological
evaluation for Mother. As to Father’s contention that Mother had violated a
placement condition by leaving the home unsupervised with S.A., the court
reviewed the previous minute orders and stated that S.A. had been officially
“placed” with Mother at the November 8, 2021 dispositional hearing and that
no conditions were imposed on Mother at that time.5 The court
acknowledged that Mother had “greatly disrupted” Father’s visitation with
S.A. but observed that Mother was now taking medication and in therapy,
which the court believed would “go a long way” toward resolving the
visitation issue.

5 Father disputes this conclusion. He contends that during the detention
hearing, the court conditioned S.A.’s detention with Mother on Mother not
leaving the home unsupervised with S.A., among other conditions. Father
posits that this condition was not merely a condition of detention but was
also a condition required for placement with Mother because at the
November 8, 2021 disposition hearing at which the court placed S.A. with
Mother, the court incorporated “by reference the balance of the
recommendations in the dispositional report.” In the Agency’s dispositional
report, the Agency recommended S.A.’s placement with Mother “on the
condition that [Mother] continues to follow court orders from [the] detention
hearing.” As the court observed at the section 388 petition hearing, however,
the minute order from the disposition hearing did not specify any particular
conditions regarding placement with Mother. As discussed post, we need not
resolve this discrepancy. Regardless of whether this condition applied at
disposition, we conclude the juvenile court did not abuse its discretion in
finding that changing S.A.’s placement would not be in S.A.’s best interest.

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 The court granted Father’s section 388 petition in part and denied it in
part. Specifically, the court granted Father’s request for extended visits with
S.A. but denied his request for placement. As to placement, the court found
that Father had not met his burden to show a sufficient change in
circumstances, and even if Father had established a sufficient change in
circumstances, it would not be in S.A.’s best interest to place her with Father.
Regarding Father’s request for extended visits, the court found there had
been a change in circumstances—due to S.A.’s good relationships with Father
and paternal grandmother—and that granting extended visits would be in
S.A.’s best interest.
Father appeals.
II.
DISCUSSION

On appeal, Father challenges the portion of the juvenile court’s order
denying his section 388 petition’s request for placement. Father contends the
juvenile court abused its discretion by finding that Father did not carry his
burden to show both that a significant enough change of circumstances
and/or new evidence justified the change in placement and that placing S.A.
with him in Arizona was in S.A.’s best interest. The Agency disagrees and
contends that Father failed to show either of these requirements for his
section 388 petition.
A. Applicable law
Section 388 allows a parent to petition the juvenile court to modify a
placement order due to changed circumstances or new evidence. (In re
Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).) To prevail on a
section 388 petition, the parent petitioning for a change of the placement
order—here, Father—generally must show by a preponderance of the

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evidence both that (1) there is new evidence or changed circumstances
warranting a change of the juvenile court’s prior placement order and (2) the

proposed change is in the best interest of the child.6 (Ibid.) In evaluating a
section 388 petition, the juvenile court may consider the evidence in the
record as a whole. (See In re J.M. (2020) 50 Cal.App.5th 833, 847, citing In re
Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.)
Not every change in circumstance or piece of new evidence can justify
modification of a prior order. Rather, “[t]he change in circumstances or new
evidence must be of such significant nature that it requires . . . modification
of the challenged order.” (In re A.A. (2012) 203 Cal.App.4th 597, 612, italics
added.) A sufficient “change in circumstances” also must be “substantial” or
“material.” (In re N.F. (2021) 68 Cal.App.5th 112, 120; In re Ernesto R. (2014)
230 Cal.App.4th 219, 223.) Similarly, “new evidence” for section 388
purposes must be “material” and must be “evidence that, with due diligence,
the party could not have presented at the dependency proceeding at which
the order, sought to be modified or set aside, was entered.” (In re H.S. (2010)
188 Cal.App.4th 103, 105.)
We review the juvenile court’s denial of a section 388 petition for abuse
of discretion. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 447.) Thus,
unless it is clearly established that the trial court made an arbitrary,

6 Here, the parties’ briefing on appeal is unclear about which burden
they contend Father needed to satisfy to prevail on his section 388 petition.
The parties sometimes refer to Father’s burden as by a preponderance of the
evidence, but at other times, they refer to it as one of clear and convincing
evidence. Regardless, we need not decide which burden applied here because
we conclude that the juvenile court did not abuse its discretion by finding
that Father did not make the required showing, even by the less-demanding
preponderance of the evidence standard.

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capricious, or patently absurd determination, the trial court’s ruling should
not be disturbed on appeal. (Stephanie M., supra, 7 Cal.4th at 318.) In other
words, there is no abuse of discretion “ ‘ “[w]hen two or more inferences can
reasonably be deduced from the facts.” ’ ” (Id. at p. 319.) Rather, “ ‘ “[t]he
appropriate test . . . is whether the trial court exceeded the bounds of
reason.” ’ ” (Id. at pp. 318-319.)
B. Analysis
Father contends the juvenile court abused its discretion by denying his
section 388 petition’s request for placement of S.A. We are not persuaded.
As to the first requirement for relief under section 388, Father argues
that he supported his petition with sufficient “new evidence” and/or evidence
of “changed circumstances,” including evidence of: (1) Mother’s ongoing
interference with Father’s visitation; (2) Mother’s unsupervised time outside
the home with S.A., which Father contends violated a condition of S.A.’s
placement with Mother; and (3) S.A.’s absences from school without a doctor’s
note. Father argues that he carried his burden to show the second
requirement for relief under section 388—that placing S.A. with Father was
in S.A.’s best interest—because he showed the importance of S.A. having a
relationship with both parents. We address these arguments in turn.
Although Father does not develop his argument that he presented “new
evidence” within the meaning of section 388, we agree with Father that some
of his evidence concerned incidents that had not yet happened by the time of
the juvenile court’s November 8, 2021 hearing during which it placed S.A.
with Mother. For example, some of the incidents during which Mother
interfered with Father’s visitation occurred in the days and months after the
November 8, 2021 disposition hearing, as did some of S.A.’s absences from
school without a doctor’s note. Thus, this constituted new evidence that, even

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with due diligence, Father could not have presented at the disposition
hearing. (See In re H.S. (2010) 188 Cal.App.4th 103, 105.)
Nevertheless, Father did not carry his burden to show that placing S.A.
with him was in S.A.’s best interest, and thus, we conclude the juvenile court
did not abuse its discretion. Father contends that the importance of S.A.
having a relationship with both parents—which Father claims can only be
accomplished by placing S.A. with him—shows that the requested placement
change was in her best interest.7 But, for several reasons supported by the
record on appeal, Father failed to show that a complete change in S.A.’s
placement was in her best interest. First, Agency reports and testimony
indicated S.A.’s preference to remain with Mother, that S.A. had never lived
apart from Mother, and that S.A. had a close relationship with her half-
brother (who also lived with Mother). Agency reports also stated that S.A.
had friends at her school and in her neighborhood, that her support network
was in San Diego, that she previously participated in therapy at her school,

and that she was in the process of doing so again.8 Simply put, Father did
not show by a preponderance of the evidence that uprooting S.A. from her
Mother and half-brother, friends, school, therapy, and support network in

7 At the evidentiary hearing on Father’s section 388 petition, the juvenile
court acknowledged the importance of promoting S.A.’s relationship with
Father and the paternal family by granting Father extended visits with S.A.

8 The juvenile court also considered that Mother had recently started
therapy, which the court believed could improve Mother’s ability to co-parent.
Hopefully, this positive development will encourage Mother to participate in
co-parenting going forward, particularly because co-parenting can only
benefit S.A.

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California to move to Arizona with Father was in her best interest.9 Thus,
the juvenile court did not “exceed the bounds of reason” by finding that
placing S.A. with Father was not in S.A.’s best interest. (Stephanie M.,
supra, 7 Cal.4th at 318.) Accordingly, because we conclude that the juvenile
court’s denial of Father’s section 388 petition’s request for placement was not
an abuse of discretion, we affirm.
III.
DISPOSITION

The order is affirmed.

IRION, J.

WE CONCUR:

McCONNELL, P. J.

HUFFMAN, J.

9 We are not persuaded by Father’s additional contention that the
juvenile court erred because S.A.’s best interests are the functional
equivalent of what is “not detrimental.” Father is mistaken. In contrast to
the authority cited by Father, the present appeal concerns a placement
determination, not a visitation determination, and the court did not remove
S.A. from Mother. (Cf. In re Randalynne G. (2002) 97 Cal.App.4th 1156, 1170
[after child was removed from both parents, holding that an absence of
detriment was equivalent to the child’s best interests when determining post-
guardianship visitation orders].)

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