In re W.O. CA4/2

• Court: California Court of Appeal
• Decided: July 14, 2025
• Docket: E085088
• Status: Unpublished

Opinion

Filed 7/14/25 In re W.O. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re W.O. et al., Persons Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E085088

Plaintiff and Respondent, (Super.Ct.No. J300965, J300966, J300967) v. OPINION A.O. et al.,

Defendants and Appellants.

APPEAL from the Superior Court of San Bernardino County. Cara D. Hutson,

Judge. Dismissed.

Richard L. Knight, under appointment by the Court of Appeal, for Defendant and

Appellant, A.O.

Lelah S. Forrey-Baker, under appointment by the Court of Appeal, for Defendant

and Appellant, W.O.

1 Tom Bunton, County Counsel, and Helena Rho, Deputy County Counsel, for

Plaintiff and Respondent.

I. INTRODUCTION

A.O. (Mother) and W.O. (Father) are the parents of Al.O., S.O., and We.O. In

July 2024, the children were declared dependents of the juvenile court and formally

removed from their parents’ custody after a contested jurisdictional and dispositional

hearing pursuant to Welfare and Institutions Code1 section 361. The dispositional order

also provided that each parent would be granted separate, weekly supervised visits with

the children.

In October 2024, both Mother and Father filed petitions pursuant to section 388

seeking to modify the visitation order to provide for more liberalized visits. The juvenile

court denied both petitions without conducting a formal evidentiary hearing. Parents

appeal from the orders denying their modification petitions, arguing the juvenile court

erred by denying their petitions without first granting them an evidentiary hearing.

However, while this appeal was pending, the juvenile court conducted a six-month

review hearing pursuant to section 366.21, found that there was a substantial probability

the children would be returned to parents’ custody within six months, granted continued

reunification services, and entered a new visitation order, partially liberalizing parents’

visitation rights.

Given this record, San Bernardino County Children and Family Services (CFS)

1 Undesignated statutory references are to the Welfare and Institutions Code.

2 argues the appeals from the denial of parents’ modification petitions are now moot. We

agree and dismiss the appeals.

II. BACKGROUND

In May 2024, Al.O. called law enforcement in response to an incident in which

Mother became intoxicated after consuming an excessive amount of alcohol, physically

attacked Father while he was holding We.O., and physically attacked Al.O. Upon

investigation, CFS discovered multiple prior referrals regarding allegations of domestic

violence in the home, as well as allegations of parents’ abuse of alcohol and other

controlled substances. As a result, CFS filed petitions on behalf of Al.O., S.O., and

We.O., pursuant to section 300 et seq., alleging they were at risk of serious physical harm

due to Mother’s and Father’s failure to supervise, protect, or adequately provide for her

needs.

In July 2024, the juvenile court held a contested jurisdictional and dispositional

hearing. At the conclusion of the hearing, the juvenile court sustained the allegations of

the petition,2 declared the children dependents of the juvenile court, and formally

removed the children from parents’ custody. Both parents were granted reunification

services, with an admonition that services might not extend beyond six months given

2 The juvenile court dismissed one allegation in the petition related to parents’ previous incarceration but sustained the remaining allegations involving domestic violence and substance abuse.

3 We.O.’s age.3 The dispositional order provided that each parent would be granted

separate, supervised visits once a week. The juvenile court expressed the belief that

visitation with each parent should remain separate as a result of the unresolved domestic

violence in the home and that it could reassess the issue of visitation if parents “finish

their domestic violence classes and show benefit.” It then set a status review hearing

pursuant to section 366.21 to be held in January 2025.

In October 2024, both Mother and Father filed petitions pursuant to section 388,

seeking to modify the visitation order. Specifically, parents sought to increase the

frequency of visitation to three times a week, authorize potential overnight and weekend

visits, and permit visitation with both parents to occur together. In support of their

petitions, parents alleged they had completed the domestic violence and substance abuse

courses required as part of their reunification case plan. The juvenile court set a hearing

to determine whether to grant a formal, evidentiary hearing on the petitions. However,

after accepting argument from the parties, the juvenile court denied the petitions without

setting a formal evidentiary hearing. Parents appeal from the orders denying their

petitions.

3 Generally, “[f]or a child who, on the date of initial removal from the physical custody of the child’s parent or guardian, was under three years of age, court-ordered services shall be provided for a period of 6 months from the dispositional hearing . . . .” (§ 361.5, subd. (a)(1)(B).)

4 While this appeal was still pending, the juvenile court held the scheduled six-

month status review hearing pursuant to section 366.21(e)(1).4 At the hearing, the

juvenile court continued the children as dependents of the juvenile court and declined to

return them to parents’ custody. However, the juvenile court (1) found that both parents

had made progress toward alleviating the circumstances that led to We.O.’s removal;

(2) found there was a substantial probability that We.O. will be returned to parental

custody within six months; (3) found there was a compelling reason not to set a hearing

pursuant to section 366.26; (4) granted both parents continued reunification services; and

(5) liberalized visitation with parents by increasing the frequency of supervised visits.

Parents explicitly renewed the requests for liberalized visitation that were made in their

section 388 petitions, but the juvenile court declined to grant that request.

III. DISCUSSION

A. General Legal Principles and Standard of Review

The only claim raised in this appeal is that the juvenile court erred in denying

parents section 388 petitions for modification of a prior visitation order without

conducting an evidentiary hearing.

“Section 388 allows a parent to petition to change, modify, or set aside any

previous juvenile court order. [Citation.] ‘The petitioner 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

4 On April 1, 2025, CFS filed a motion to augment the record, and we reserved ruling on the motion to be considered with the appeal. We now grant the motion.

5 child.’ ” (In re J.M. (2020) 50 Cal.App.5th 833, 845; § 388, subd. (a).) Generally, “[t]he

juvenile court has discretion whether to provide a hearing on a petition alleging changed

circumstances.” (In re Aljamie D. (2000) 84 Cal.App.4th 424, 431.) However, a

“ ‘ “parent need only make a prima facie showing to trigger the right to proceed by way

of a full hearing” ’ ” (id. at p. 432), and a “petition may be denied without a hearing ‘only

if the [petition] fails to reveal any change of circumstance or new evidence which might

require a change of order” (In re R.F. (2023) 94 Cal.App.5th 718, 728). “We review the

summary denial of a section 388 petition for an abuse of discretion.” (R.F., at p. 728; In

re C.J.W. (2007) 157 Cal.App.4th 1075, 1079.)

B. The Appeals Are Moot

One of several arguments asserted by CFS on appeal is that Mother’s and Father’s

challenge to the juvenile court’s orders denying their section 388 petitions are now moot.

For the reasons explained below, we agree.

“A court is tasked with the duty ‘ “to decide actual controversies by a judgment

which can be carried into effect, and not to give opinions upon moot questions or abstract

propositions, or to declare principles or rules of law which cannot affect the matter in

issue in the case before it.” ’ ” (In re D.P. (2023) 14 Cal.5th 266, 276.) “A case becomes

moot when events ‘ “render . . . it impossible for [a] court, if it should decide the case in

favor of [appellant], to grant him any effect[ive] relief.’ ” [Citation.] For relief to be

‘effective,’ two requirements must be met. First, the [appellant] must complain of an

ongoing harm. Second, the harm must be redressable or capable of being rectified by the

outcome the plaintiff seeks.” (Ibid.)

6 Here, the juvenile court issued a visitation order at the time of disposition, which

parents sought to modify through their section 388 petitions. However, during the

pendency of this appeal, the juvenile court held a six-month review hearing, considered

parents’ requests for modified visitation, and issued a new visitation order. Given this

procedural history, we conclude that parents are unable to meet either prong of the test

articulated in In re D.P. to show this court can grant effective relief.

First, there is no basis for this court to conclude that parents suffer any ongoing

harm from being deprived of an evidentiary hearing prior to denial of their section 388

petitions. To the extent parents claim they were deprived of the ability to present their

arguments and evidence in the context of a full hearing, the record shows that the juvenile

court subsequently held a statutory six-month review hearing. At the time of that

hearing, the juvenile court had “the statutory power to order that reunification services,

including visitation, be offered, modified, continued, or . . . terminated.” (In re Natasha

A. (1996) 42 Cal.App.4th 28, 35.) And parents specifically renewed their requests for the

juvenile court to consider modification of visitation at the time of the hearing. Further, at

that hearing, parents were permitted to fully litigate the issues regarding visitation.

Parents have not argued, on appeal, that their rights were improperly limited during the

six-month review hearing. Thus, parents have already been afforded a full hearing on

their requests for modification of visitation and no longer suffer any harm from being

deprived of an evidentiary hearing by way of their section 388 petition.

Second, there is no basis for this court to conclude that parents suffer any ongoing

harm from any findings related to the denial of their section 388 petitions. The summary

7 denial of a section 388 petition at the prima facie stage does not involve the resolution of

conflicting evidence, factual findings or a final determination on the merits of any issue.

Instead, the juvenile court determines only whether “the facts alleged, if supported by

evidence given credit at [a] hearing, would sustain a favorable decision on the petition.”

(In re J.P. (2014) 229 Cal.App.4th 108, 127 [emphasis added]; In re Edward H. (1996)

43 Cal.App.4th 584, 593.) It is a preliminary determination that the juvenile court may

reconsider at any time. (See In re G.B. (2014) 227 Cal.App.4th 1147, 1160 [“[E]ven if

the juvenile court . . . had determined when it checked the box that Mother’s section 388

petition established a prima facie case, it retained the discretion to change that

determination upon further consideration . . . .”].) Thus, the denial of the petitions at the

prima facie stage does not result in any findings that would adversely impact subsequent

hearings or determinations by the juvenile court.

Third, even if the juvenile court erred in denying the modification petitions

without an evidentiary hearing,5 any harm cannot be redressed in this appeal. The proper

remedy for the erroneous denial of a section 388 petition without an evidentiary hearing

is to remand the matter with directions for the juvenile court to conduct the evidentiary

hearing. (In re R.A. (2021) 61 Cal.App.5th 826, 839-840 [remand to conduct an

5 We observe that at least one published decision has concluded that it is not an abuse of discretion to summarily deny a section 388 petition where “the petition sought a hearing on the very issue the court ha[s] already indicated would be considered at a hearing that ha[s] already been scheduled.” (In re B.C. (2011) 192 Cal.App.4th 129, 142.) At the time parents filed their section 388 petitions, the juvenile court was already scheduled to conduct a status review hearing, at which time the issue of parents’ progress toward alleviating the causes that led to removal, custody, additional reunification services, and visitations would be addressed.

8 evidentiary hearing on petitioner’s motion]; In re Daniel F. (2021) 64 Cal.App.5th 701,

717 [same].) At the hearing, the juvenile court would still be required to determine that

the preponderance of the evidence showed changed circumstances and the best interests

of the child warrant modification of an order. (In re Stephanie M. (1994) 7 Cal.4th 295,

317.) However, “when an appellate court reverses a prior order of the trial court on a

record that may be ancient history to a dependent child, the trial court must implement

the final appellate directive in view of the family’s current circumstances and any

developments in the dependency proceedings that may have occurred during the

pendency of the appeal.” (In re Anna S. (2010) 180 Cal.App.4th 1489, 1501; In re D.P.,

supra, 14 Cal.5th at p. 284; In re Malick T. (2022) 73 Cal.App.5th 1109, 1129 [Where the

appellate court remands for a new hearing, the juvenile court is required to reassess the

matters “under the circumstances as they exist at the time of the new hearing.”].)

Here, even if parents could successfully show error, the appellate remedy of a

remand to conduct an evidentiary hearing on their section 388 petitions could not provide

effective relief. The visitation order issued at the time of disposition which the petitions

seek to modify is no longer in effect. Further, the facts that parents alleged in their

petitions to show changed circumstances warranting modification have already been

considered at the time of the subsequently held status review hearing. Thus, remand for a

new evidentiary hearing to determine whether the allegations of parents’ petitions are

supported by the evidence would be fruitless. At this point in the proceedings, even if the

allegations were fully established by the evidence presented at a new evidentiary hearing,

9 the allegations could not constitute changed circumstances warranting modification of

any existing order currently in effect.

Fourth, we are unpersuaded by parents’ argument that they continue to suffer

ongoing harm because the juvenile court has yet to grant them visitation on the terms

they requested in their petitions. The visitation order now in effect was issued after a full

hearing in which parents had the opportunity6 to raise the very issues they sought to raise

in their section 388 petitions. Any perceived harm they currently face is the result of the

new visitation order issued at the six-month review hearing and not from denial of their

section 388 petitions. (See In re J.P., supra, 229 Cal.App.4th at pp. 128-129 [Parents

were not prejudiced by erroneous denial of section 388 petition where the juvenile court

subsequently holds a six-month review hearing and the order issued after hearing is

uncontested.]; In re Victoria C. (2002) 100 Cal.App.4th 536, 544-545 [parent not

prejudiced by erroneous denial of section 388 petition where juvenile court subsequently

holds a statutory review hearing where parties contest the same issue raised in petition].)

Finally, we decline parents’ request to exercise our discretion to reach the merits

of their challenge. While we have inherent discretion to reach the merits of an otherwise

moot dispute (In re D.P., supra, 14 Cal.5th at p. 282), whether to exercise such discretion

6 Parents also briefly argue that they continue to suffer harm because Mother intended to cross-examine a social worker at an evidentiary hearing on her section 388 petition and was denied a due process right to do so. However, parents were entitled to a contested status review hearing, even without an offer of proof. (In re James Q. (2000) 81 Cal.App.4th 255, 266.) Thus, the denial of their section 388 petitions could not have deprived them of the opportunity to cross-examine any relevant witnesses at the time they renewed their requests for modification of visitation rights at the status review hearing.

10 is generally guided by consideration of numerous factors. (Id. at pp. 282-287.) However,

none of those factors appear compelling in this case. As we have already explained, the

underlying order which parents sought to modify is no longer in effect, parents have

already had a full opportunity to litigate the merits of their modification request at a

subsequent review hearing, and the juvenile court’s summary denial of a section 388

petition does not result in any findings that are stigmatizing or would adversely impact

any future determinations. Because none of the generally recognized factors that would

weigh in favor of discretionary review appear in this case, we decline to exercise our

discretion to reach the merits of parents’ claims.

IV. DISPOSITION

The appeals are dismissed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS J.

We concur:

McKINSTER Acting P. J.

RAPHAEL J.