Filed 7/21/26 In re C.S. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re C.S., a Person Coming Under B340622
the Juvenile Court Law.
(Los Angeles County
Super. Ct. Nos.
22LJJP00183,
22LJJP00183C)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent.
v.
A.S.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County,
Stephanie M. Davis, Judge. Affirmed.
Paul Couenhoven, under appointment by the Court of Appeal, for
Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Jacklyn K. Louie, Assistant
County Counsel, Kimberly Roura, Principal Deputy County Counsel, for
Plaintiff and Respondent.
INTRODUCTION
Athena S. (mother) filed a petition for modification under Welfare and
Institutions Code section 388,1 asking the juvenile court to return her minor
child to her care or grant her reunification services with him. The juvenile
court denied her petition. Mother now appeals, arguing the court abused its
discretion in denying her petition.2 We find no abuse of discretion and affirm.
As the parties are familiar with the facts and procedural history of the
case, we do not restate those details in full here. Below, we discuss only the
facts and history as needed to resolve—and provide context for—the issues
presented on appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and father had three children together: D.S. (born 2005), A.S.
(born 2007), and C.S. (born 2009). The family had a long history of
involvement with the Los Angeles County Department of Children and
Family Services (Department). As relevant here, in 2015, the juvenile court
sustained allegations of alcohol abuse by mother stemming from an arrest for
driving under the influence with all three children in the car. In 2017, the
juvenile court again sustained allegations of alcohol abuse by mother and
ordered her to participate in a 12-step program and obtain a sponsor to help
1 All further statutory references are to the Welfare and Institutions
Code, unless otherwise stated.
2 Father is not a party to this appeal.
2
her maintain her sobriety. Mother failed to obtain a sponsor or attend
Alcoholics Anonymous (AA) meetings.
The family again came to the Department’s attention in 2022, when
D.S. violently attacked mother in the family home. When interviewed by the
Department, D.S. reported repeated physical and sexual abuse by mother
beginning when he was 11 years old. D.S. said he attacked his mother
because he saw her sleeping in the same bed as his younger brother, C.S.,
and believed she was abusing him as well. In response, the Department filed
a section 300 petition in May 2022, initiating the dependency proceedings
that give rise to this appeal. The petition alleged mother sexually abused
D.S., and that her past and present alcohol abuse—as well as unresolved
mental health issues—left her unable to care for the three children.
Mother adamantly denied the allegations of sexual abuse but admitted
that she relapsed approximately two years ago and was now regularly
drinking alcohol. She admitted that she struggled with alcoholism and drank
shots of vodka in the morning and sometimes throughout the day. Mother
also reported drinking between one and three pints (the equivalent of
approximately 8 to 24 servings) of alcohol daily. Mother admitted she used
alcohol to self-medicate but claimed her drinking did not interfere with her
ability to care for her children.
A psychological examination revealed that mother’s alcoholism caused
her to sleep “most of the day,” which interfered with her ability to supervise
the children and contributed to their poor attendance and performance at
school. The psychologist was troubled by mother’s history of alcoholism,
unsuccessful attempts at maintaining her sobriety, and tendency to minimize
the effect of alcoholism on her parenting capacity. The children’s maternal
3
grandmother also confirmed mother’s struggles with alcoholism interfered
with mother’s ability to get the children to school in the morning.
The juvenile court sustained the allegations against mother and
removed A.S. and C.S. from her care and placed them with relatives.3 The
court denied mother’s request for reunification services, concluding she had
not made substantial progress in mitigating the causes that necessitated
removing the children from her care.
In April 2023, mother filed a petition under section 388, asking the
juvenile court to either return C.S. to her care or grant her reunification
services with him. In her petition, mother argued she completed an
outpatient program for substance abuse and several sessions of counseling
related to child sexual abuse awareness. In December 2023, the juvenile
court granted mother’s request for reunification services with A.S., but
denied any relief as to C.S. As part of its ruling, the juvenile court ordered
mother to undergo weekly testing for alcohol with “no missed or dirty tests,”
and participate in a 12-step program “with a court card and sponsor.”
In April 2024, mother filed a second petition under section 388, again
seeking reunification services with C.S. or to have him returned to her care.
In response, the Department acknowledged that mother was making
progress, but noted that she had missed 4 of her 20 scheduled alcohol tests
between January 2024 and May 2024.4 It also noted that mother admitted
3 D.S. was arrested for his role in the physical altercation with mother
and was in custody at the time of the disposition hearing.
4 Mother had a long history of inconsistent attendance for testing. For
example, the record shows mother missed 11 of her 19 scheduled tests
between June 20, 2023, and October 17, 2023. Mother also missed two of six
scheduled tests between July 2024 and August 2024.
4
she did not have a sponsor and was not participating in a 12-step program or
regularly attending AA meetings.5 Based on these facts, the Department
argued mother was not putting in the necessary effort to prevent another
relapse.
The Department also argued that C.S. was diagnosed with autism and
had special needs, and that mother was already struggling to meet her own
needs. It argued that having responsibility for meeting C.S.’s needs would
add additional stress to mother’s life, putting her at further risk of relapse. It
noted that C.S. was thriving with maternal grandmother, was receiving all
necessary services, and that it was in his best interest to remain in his
grandmother’s care.
When interviewed by the Department, C.S. said he did not want to live
with mother in her current home because he would not have his own bedroom
and that he preferred to stay in his current placement. Mother agreed that
her home was too small to have C.S. returned to her care and told the
Department that she preferred to have her request for reunification services
granted rather than have C.S. returned to her home.
The juvenile court denied mother’s petition in September 2024, echoing
the Department’s concerns about mother’s ability to maintain her sobriety
and meet C.S.’s needs. However, the juvenile court acknowledged that
mother had made progress in addressing the circumstances that led to the
sustained allegations against her and stated that if she was “able to maintain
her sobriety and do what she needs to do for an extended period of time,” she
could bring another petition under section 388.
5 The Department also noted that, while mother claimed to have worked
on a 12-step program as part of the outpatient substance abuse treatment
program she completed, she was unable to recite the 12 steps.
5
Mother timely appealed the denial of her section 388 petition.
DISCUSSION
I. Legal Standards
Section 388 allows a parent to petition to change, modify, or set aside
any previous juvenile court order. (§ 388, subd. (a).) “To obtain an
evidentiary hearing on a section 388 petition, a parent must make a prima
facie showing that circumstances have changed since the prior court order,
and that the proposed change will be in the best interests of the child.
[Citations.]” (In re Alayah J. (2017) 9 Cal.App.5th 469, 478 (Alayah J.).) The
parent petitioning under section 388 has the burden of establishing both
prongs by a preponderance of the evidence. (In re J.M. (2020) 50 Cal.App.5th
833, 845.)
“To support a section 388 petition, the change in circumstances must be
substantial.” (In re Ernesto R. (2014) 230 Cal.App.4th 219, 223 (Ernesto R.).)
A petition that only shows changing—not changed—circumstances is
insufficient to require an evidentiary hearing. (Ibid.; In re Baby Boy L.
(1994) 24 Cal.App.4th 596, 610.) The fact that a parent “makes relatively
last-minute (albeit genuine) changes” does not automatically tip the scale in
the parent’s favor. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 530.)
A section 388 petition may not be based on a parent’s conclusory
assertions. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250 (Anthony W.).)
Nor is it “enough for a parent to show just a genuine change of circumstances
under the statute. The parent must show that the undoing of the prior order
would be in the best interests of the child. [Citation.]” (In re Kimberly F.,
supra, 56 Cal.App.4th at p. 529.) “When custody continues over a significant
period, the child’s need for continuity and stability assumes an increasingly
6
important role.” (In re Angel B. (2002) 97 Cal.App.4th 454, 464.) “After the
termination of reunification services, a parent’s interest in the care, custody
and companionship of the child is no longer paramount. [Citation.] Rather,
at this point, the focus shifts to the needs of the child for permanency and
stability.” (Ibid.)
“In determining whether [a section 388] 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.) “We normally review
the grant or denial of a section 388 petition for an abuse of discretion.”
(Alayah J., supra, 9 Cal.App.5th at p. 478.) “A court exceeds the limits of
legal discretion if its determination is arbitrary, capricious or patently
absurd. The appropriate test is whether the court exceeded the bounds of
reason.” (In re L.W. (2019) 32 Cal.App.5th 840, 851, citing In re Stephanie M.
(1994) 7 Cal.4th 295, 318–319.)
II. Analysis
Mother argues the juvenile court abused its discretion in denying her
petition. Mother claims that C.S.’s removal was primarily due to concerns
about her alcohol abuse, and that she established a change in circumstances
because she “remained sober for two and a half years . . . without
participation in AA or having a sponsor.”
In moving for relief under section 388, it was mother’s burden to
establish a change in circumstances. Her assertion that she stopped
drinking, standing alone, did not establish by a preponderance of the
evidence that she had been successful in maintaining her sobriety between
May 2022 and September 2024. (Anthony W., supra, 87 Cal.App.4th at p.
250.) Rather, the evidence before the juvenile court showed mother had an
extensive history of failing to appear for her alcohol tests. A missed test,
7
without adequate justification, is properly considered the equivalent of a
positive test. (See In re Natalie A. (2015) 243 Cal.App.4th 178, 186; accord In
re Kadence P. (2015) 241 Cal.App.4th 1376, 1384, disapproved of on another
ground in In re N.R. (2023) 15 Cal.5th 520, 560, fn. 18.) Mother attempts to
minimize this evidence, acknowledging only that she missed “some” tests.
The record shows that between June 2023 and September 2024, mother
missed at least 17 tests. The juvenile court could have properly considered
each of the missed tests as positive for alcohol, contradicting mother’s claim
of sobriety.
Taken cumulatively, the evidence before the juvenile court established
that, while mother had completed a substance abuse program and tested
negative for alcohol when she appeared for testing, she also: (1) had an
extensive history of alcoholism including prior relapses; (2) refused to
participate in a 12-step program or obtain a sponsor despite several court
orders directing her to do so; and (3) failed to test for alcohol 17 times in the
approximate year leading up to the hearing on her petition. At most, this
evidence shows mother’s circumstances were changing, not changed. This is
insufficient to entitle mother to relief under section 388. (Ernesto R., supra,
230 Cal.App.4th at p. 223.) We therefore find no abuse of discretion by the
juvenile court in denying mother’s section 388 petition.
8
DISPOSITION
The juvenile court’s order denying mother’s section 388 petition is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ZUKIN, P. J.
We concur:
TAMZARIAN, J.
COGLIATI, J.*
* Judge of the Santa Cruz Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
9