Filed 9/29/26 In re M.S. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re M.S., a Person Coming Under the
Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E087743
Plaintiff and Respondent, (Super. Ct. No. J298244)
v. OPINION
L.S.,
Defendant and Appellant.
In re M.S., a Person Coming Under the
Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E088136
Plaintiff and Respondent,
v.
L.S. et al.,
Defendants and Appellants.
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APPEAL from the Superior Court of San Bernardino County. Lynn C. Poncin,
Judge. Affirmed.
Jesse McGowan, under appointment by the Court of Appeal, for Defendant and
Appellant, L.S.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and
Appellant, J.P.
Laura Feingold, County Counsel, and Joseph R. Barrell, Deputy County Counsel,
for Plaintiff and Respondent
I.
INTRODUCTION
Defendants and appellants, J.P. (Father) and L.S. (Mother) appeal the juvenile
court’s order terminating their parental rights to their minor child, M.S.-D, and the court’s
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orders summarily denying their Welfare and Institutions Code section 388 petitions
without holding an evidentiary hearing. Their sole argument on appeal is that the
juvenile court erred in denying Father’s petition. We disagree and affirm.
1
All further statutory references are to the Welfare and Institutions Code.
2
II.
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FACTUAL AND PROCEDURAL BACKGROUND
In October and November 2021, plaintiff and respondent, the Riverside County
Child Department of Social Services (DPSS) received referrals concerning infant M.S.-D.
During DPSS’s investigation, the maternal grandmother (MGM) reported that Mother
neglected M.S.-D. She also reported that Mother and her 16-year-old daughter, A., both
of whom lived with MGM, often engaged in verbal and physical altercations. MGM
believed Mother might be abusing substances and had unaddressed mental health
problems. A. also reported that Mother physically assaulted her and neglected M.S.-D.,
and likewise believed MGM was abusing drugs and had mental health issues.
DPSS also interviewed Father, who reported there was domestic violence between
him and Mother, that he knew of Mother’s physical abuse of A., and he knew Mother
previously used methamphetamine but he thought she stopped when pregnant with M.S.-
D. At the time, Mother and Father lived separately and M.S.-D. had never lived with
Father.
M.S.-D., then 11 months old, was taken into protective custody and placed with
Mr. G. and Mrs. P (the caregivers). DPSS also filed a petition on her behalf under section
300, subdivision (b) (failure to protect), alleging that Mother had a long, unresolved
substance abuse history, which placed M.S.-D. at a substantial risk of serious harm. The
2
Given the narrow focus of the parents’ appeal, we need provide only a limited
recitation of the facts and background of this case.
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petition also alleged that Father knew of Mother’s substance abuse, yet failed to protect
M.S.-D.
The juvenile court ordered M.S.-D. detained from the parents in November 2022,
and set the matter for a combined jurisdiction/disposition hearing in December 2022.
DPSS filed an amended petition on M.S.-D.’s behalf, which added another section
300, subdivision (b) allegation that Father was aware of the domestic violence between
Mother and A. in M.S.-D.’s presence and failed to protect her, and an allegation under
section 300, subdivision (g) that Father does not live with M.S.-D. and had not provided
for her care or support.
At a contested jurisdiction/disposition hearing in February 2023, the juvenile court
sustained the amended petition’s allegations, removed M.S.-D. from the parents’ care,
and ordered reunification services for the parents. Father’s case plan required him to
participate in counseling and a parenting program.
In June 2023, Father agreed to a case plan that included general counseling and
parenting education. About a month later, however, Father told DPSS that he was
“getting overwhelmed with the different services he was referred to” and that he would
“address counseling when he is finished with the other services.”
In September 2023, the case was transferred from DPSS to San Bernardino
County Child and Family Services (CFS).
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In January 2024, CFS reported that Father had completed parenting classes and
had attended a few counseling sessions, but he had missed several, and his therapist often
had trouble getting a hold of him. His therapist found that he had not benefitted from his
parenting classes or his therapy sessions. Because of Father’s non-compliance, his
therapist dropped him as a client in late January 2024.
In February 2024, law enforcement responded to a domestic violence incident at
Father’s home. Father claimed Mother had locked him out of the house and then bit him
in the ear when he tried to enter. Mother, on the other hand, claimed she left the house
and Father refused to let her back in when she returned, so she went in through a sliding
glass door. According to Mother, Father then pinned her against the door jamb and
picked her up by the arm. Law enforcement removed Mother from the home.
Father began counseling with Make A Difference Association (MADA) in March
2024. In May 2024, CFS received a progress report from MADA, which stated Father
had participated in therapy sessions, and had learned strategies to protect M.S.-D. and to
establish appropriate boundaries in relationships. Around the same time, Father’s case
plan was amended to include a domestic violence program so that he could learn how to
address, among other things, abusive relationships and how to safely coparent.
It was unclear whether the MADA therapist was aware of the recent domestic
violence incident between Mother and Father. In June 2024, Father’s therapist told CFS
that Father reported that he was still romantically involved with Mother and lived with
her, and she remained physically abusive toward him. The therapist therefore
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recommended Father enroll in domestic violence classes and explained that she did not
include this recommendation in Father’s progress report because Father had not been
forthcoming about his abusive relationship with Mother.
Later that month, on June 14, 2024, the juvenile court terminated the parents’
reunification services and set the matter for a section 366.26 hearing in October 2024.
In its report for that hearing, CFS recommended terminating the parents’ parental
rights to M.S.-D. CFS reported that she had a strong relationship with her caregivers,
who she saw as her parents. The caregivers had provided for all of her needs and wanted
to adopt her. On the other hand, Father did not consistently visit M.S.-D. When he did
visit, he appeared to lack the skills necessary to keep M.S.-D. engaged or to redirect her
as necessary. M.S.-D. did not seek Father out for comfort, though they were affectionate
with one another. In CFS’s view, M.S.-D. did not have an emotional or physical
attachment to Father.
At Father’s request, the juvenile court authorized a bonding study by Robert E.
Brodie, Ph.D. Dr. Brodie submitted a bonding and assessment report after observing a
three-hour visit between Father and M.S.-D. and an interview with Father afterwards.
Father interacted with her appropriately, engaged with her, and disciplined/redirected her
properly. M.S.-D. appeared comfortable with Father and exhibited a close bond and
attachment by running and jumping on him and calling him “papa.”
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However, toward the end of the visit, M.S.-D. became tired and sought out the
caregiver, Mrs. P., and called out for her as “mommy.” When M.S.-D. fell and began
crying, Father told her to come to him, but she went to Mrs. P. for comfort.
In Dr. Brodie’s view, Father had an emotional connection and bond with M.S.-D.
M.S.-D. was attached to him “in terms of comfort” and saw him as a fun playmate, but
did not see him in a disciplinarian/parental role. Dr. Brodie was concerned, however, that
Mrs. P.’s presence might have affected whether and to what extent M.S.-D. saw Father as
a parental figure. Dr. Brodie noted that M.S.-D. often stood near or interacted with Mrs.
P. more than she did with Father, but she might have sought out Father more with a
neutral observer.
Dr. Brodie concluded that M.S.-D. and Father seemed bonded and attached to
Father, but the “attachment [was] early,” and “not yet solidified.” Dr. Brodie believed
that M.S.-D. was beginning to form a secure attachment with Father, which “would
strengthen and develop into a substantial, positive and emotional attachment to one
another” with further visits. Dr. Brodie thus concluded that terminating Father’s parental
rights “would be detrimental to [M.S.-D.] even when balanced against the countervailing
benefit of a new adoptive home.”
Based on Dr. Brodie’s report, the juvenile court ordered in December 2024 that
Father’s visits with M.S.-D. would be supervised by someone other than the caregivers.
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During the proceedings, Father visited M.S.-D. but missed several visits. The
visits were largely positive and appropriate, though Father often struggled to regulate and
redirect M.S.-D. The social worker would frequently have to intervene during M.S.-D.’s
tantrums, and she would often seek out the social worker when distressed. M.S.-D.
identified the caregivers as “mom” and “papa” and sometimes called out for them. She
did not have trouble ending visits with Father, and often ended them without hugging or
saying goodbye to him. After visits, however, M.S.-D. often became “dysregulated.”
In June 2025, the caregivers requested de facto parent status, which the juvenile
court granted in September 2025.
3
About six months later, on March 23, 2026, Father filed a section 388 petition.
Father asked the juvenile court to return M.S.-D. to his care and custody under a family
maintenance plan or, alternatively, that her permanent plan be changed to a Permanent
Plan Living Arrangement under which he would receive services. Father also requested
unsupervised visits.
In support of the position, Father submitted evidence that he had enrolled in
individual therapy and a domestic violence program, and he had completed seven of 12
sessions of a parenting class. Father provided a letter from his therapist, which stated that
Father had his initial assessment on February 11, 2026, and he attended therapy sessions
3
In February 2026, the juvenile court summarily denied Mother’s section 388
petition. Mother appeals that order, but offered no argument on the issue but instead only
joined Father’s argument that the court erroneously denied his March 2026 section 388
petition.
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on February 18, 2026, and March 18, 2026, and he had another session scheduled for
March 25, 2026. Father also provided a letter from a MADA therapist, which stated that
Father enrolled in domestic violence classes on February 25, 2026. He had attended four
sessions in the following weeks and was expected to complete eight more. The therapist
also stated that Father completed a domestic violence class in 2024, but Father submitted
no supporting proof.
Father reported that he was no longer in a relationship with Mother and lived on
his own. He continued to visit M.S.-D. twice per week for two hours, and she called him
“daddy.” He believed they had a close bond and he was able to provide a safe, loving
home for her.
The juvenile court denied Father’s petition without holding an evidentiary hearing,
finding that Father had not shown that his circumstances had changed or that his requests
were in M.S.-D.’s best interests. The court observed that Father did not complete his case
plan before his services were terminated in mid-June 2024, and “20 months later [he] has
now reenrolled in services.” The court thus found that Father’s circumstances were
changing, not changed.
At the contested section 366.26 hearing later that day, the juvenile court
terminated the parents’ parental rights to M.S.-D. and freed her for adoption by the
caregivers. The parents timely appealed.
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III.
DISCUSSION
Father argues, with Mother joining, that the juvenile court erroneously denied his
section 388 petition without holding an evidentiary hearing. They further contend that,
because the court improperly denied the petition, the court improperly terminated their
parental rights to M.S.-.D. We disagree.
Section 388 authorizes a parent of a dependent child to petition for a hearing to
modify a previous court order. (§ 388, subd. (a)(1).) To trigger the right to an evidentiary
hearing on a section 388 petition, the parent must make a prima facie showing that (1)
new evidence or changed circumstances exist and (2) the proposed modification would be
in the child’s best interest (In re G.B. (2014) 227 Cal.App.4th 1147, 1157; § 388, subd.
(d); Cal. Rules of Court, rule 5.570(h).)
“To make a prima facie showing under section 388” that would warrant holding an
evidentiary hearing, “the allegations of the petition must be specific regarding the
evidence to be presented and must not be conclusory.” (In re G.B., supra, 227
Cal.App.4th at p. 1157.) “‘A “prima facie” showing refers to those facts which will
sustain a favorable decision if the evidence submitted in support of the allegations by the
petitioner is credited.’ [Citation.] ‘Whether [the petitioner] made a prima facie showing
entitling [the petitioner] to a hearing depends on the facts alleged in [the] petition, as well
as the facts established as without dispute by the [dependency] court’s own file . . . .’
[Citation.]” (In re B.C. (2011) 192 Cal.App.4th 129, 141.) Thus, when deciding whether
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the parent has made a prima facie 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 review the juvenile court’s decision to deny a section 388 petition without an
evidentiary hearing for an abuse of discretion. (In re K.L., supra, 248 Cal.App.4th at p.
62.) The juvenile court’s decision will not be disturbed unless the court “‘“has exceeded
the limits of legal discretion by making an arbitrary, capricious, or patently absurd
determination [citations].”’ [Citations.]” (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
The juvenile court did not abuse its discretion by denying Father’s section 388
petition without an evidentiary hearing. The juvenile court reasonably found that Father
failed to make a prima facie showing that the requested changes were in M.S.-D.’s best
interests.
“[A]fter the court has bypassed or terminated reunification services and set the
matter for a section 366.26 hearing, the focus of the case shifts from the parents’ interest
in the care, custody, and companionship of the child to the needs of the child for
permanency and stability. [Citations.] A court entertaining a section 388 petition at this
stage in the proceedings ‘must recognize this shift of focus in determining the ultimate
question before it, that is, the best interest of the child.’” (In re N.F. (2021) 68
Cal.App.5th 112, 121.)
By the time Father filed his section 388 petition, M.S.-D. was four years old and
had spent all but the first 11 months of her life in the caregivers’ care. And in those first
11 months of her life, she was not in Father’s care. She has thus never lived with Father.
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The caregivers, on the other hand, have provided for all of M.S.-D.’s needs and
have given her a loving, stable home for years. By all accounts, she is thriving in their
care, and they are “overjoyed” at the prospect of adopting her. They are committed to
meeting all of her needs and appear capable of doing so in all respects.
Although Father was granted supervised visits twice per week for one or two
hours, he was inconsistent with his visits. The juvenile court thus properly found that he
did not maintain regular and consistent contact with M.S.-D.
The court also reasonably concurred with CFS’s assessment that there was no
substantial bond between Father and M.S.-D., despite Dr. Brodie’s suggestion otherwise.
M.S.-D. had no trouble leaving Father when visits ended, and she often did not hug him
when leaving or say goodbye. It appeared to CFS that M.S.-D. considered Father a
friendly visitor or playmate, not a parental figure. Even then, nothing in the record
suggests that M.S.-D. wanted more or longer visits with Father.
By contrast, M.S.-D. calls the caregivers “mommy” and “papa,” recognizes them
as her parents, and is bonded to them. Because of the nature and length of their
relationship, the juvenile court granted the caregivers de facto parent status about six
months before Father filed his petition.
On this record, the juvenile court reasonably found that M.S.-D.’s best interests
would not be served by granting Father’s section 388 petition, thereby disturbing their
permanent and stable placement in a safe, loving home. (See In re N.F., supra, 68
Cal.App.5th at p. 122.) At this stage of the proceedings, it was in M.S.-D.’s best interests
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“‘to have a placement that is stable, permanent, and that allows the caretaker to make a
full emotional commitment to the child.’” (In re Celine R. (2003) 31 Cal.4th 45, 52-
53.) M.S.-D.’s “interest in stability [is] the court’s foremost concern and outweigh[s] any
interest in reunification.” (In re Edward H. (1996) 43 Cal.App.4th 584, 593.) The court
thus did not abuse its discretion in summarily denying the petition without an evidentiary
hearing and, in turn, did not err in terminating the parents’ parental rights to M.S.-D.
IV.
DISPOSITION
The juvenile court’s orders denying Father’s and Mother’s section 388 petition and
terminating the parents’ parental rights to M.S.-D. are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
MILLER
Acting P. J.
RAPHAEL
J.
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