Filed 8/21/15 In re Christian P. 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



In re CHRISTIAN P. et al., Persons
Coming Under the Juvenile Court Law.
                                                                 D067855
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
                                                                 (Super. Ct. No. CJ1107A-B)
         Plaintiff and Respondent,

         v.

ABIGAIL G.,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Laura J.

Birkmeyer, Judge. Affirmed.



         Emily Uhre, under appointment by the Court of Appeal, for Defendant and

Appellant.
       Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel, and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and

Respondent.

       Abigail G. (Mother) appeals the judgment terminating her parental rights over

Christian P. and M.P. (together, the children). First, Mother contends the court erred by

denying her Welfare and Institutions Code section 3881 petition to modify an order

terminating her reunification services. Second, Mother contends the court erred by

declining to apply the beneficial relationship exception to termination of parental rights

and adoption under section 366.26, subdivision (c)(1)(B)(i). We affirm.

                   FACTUAL AND PROCEDURAL BACKGROUND

       In November 2012, the San Diego County Health and Human Services Agency

(the Agency) filed dependency petitions on behalf of one-year-old Christian and one-

month-old M.P. As to Christian, the Agency alleged he faced a substantial risk of abuse

or neglect based on the severe physical abuse inflicted on his sibling, M.P., by their father

(Father). (§ 300, subd. (j).) As to M.P., the Agency alleged she was a child under five

who had suffered severe physical abuse, knowingly inflicted by Father. (§ 300, subd.

(e).) M.P. had been discovered with extensive bruises on different body parts,

hemorrhaging in the face and head from pressure and possible strangulation, significant

abdominal trauma, elevated liver enzymes, a possible rib fracture, and scars. Father was

arrested, imprisoned, and ultimately convicted of child cruelty.



1      All further statutory references are to the Welfare and Institutions Code.
                                             2
       The Agency's reports reflected that Mother and Father were both 18 years old,

unmarried, and had been in a volatile relationship for two years. Neither had graduated

from high school. When she was 15, Mother smoked marijuana (about 10 times a day)

and drank alcohol. During her pregnancies with Christian and M.P., Mother moved back

and forth multiple times between her parents' home and the paternal grandparents' home.

Due to parental disapproval over her unplanned pregnancies, Mother suffered from

depression, a condition she would struggle with for years.

       Before and during Mother's relationship with Father, he was physically violent,

had angry outbursts, violated parole, abused drugs, drank alcohol, and experienced

mental health problems. After M.P.'s physical abuse was discovered, a criminal

protective order prevented Father from having any contact with M.P. until 2016. Mother

was completely shocked that M.P. had suffered severe physical abuse. Mother did not

recognize the signs of abuse, and she did not believe Father would intentionally hurt M.P.

       In February 2013, the court sustained the Agency's petitions, declared the children

to be dependents, and ordered them to be placed in the care of relatives. Thereafter, the

children resided with their paternal aunt and uncle, F.T. and A.T. (together, Relatives).

The court ordered reunification services for Mother and Father, including child abuse

classes and therapy. Mother initially delayed attending her child abuse classes and

eventually made slow progress. At the six-month review hearing, the court found that

returning the children to Mother and Father would be detrimental and reunification

services had been reasonable and ordered six more months of services for them.



                                             3
       Despite acknowledging that her relationship with Father was destructive and

harmful to the children, Mother deceived those around her and continued seeing him. For

a few months, Mother's unsupervised visits with the children were revoked after she and

Father had a violent physical confrontation and she had allowed M.P. to have

unauthorized contact with Father. Mother also had several violent arguments with Father

over the phone.

       In 2014, Mother found out she was pregnant again with Father's child, became

severely depressed and withdrawn, and left her job. She threatened to abort her unborn

child if Father left her and required prompting to seek prenatal care. She stopped visiting

the children for several weeks and stopped attending her individual therapy sessions for

several months. Father, who had not yet begun his therapy or child abuse classes, was

still using drugs and was arrested for possession of crystal methamphetamine. At the 12-

month review hearing, the court terminated reunification services for Father. Although

the court expressed extreme concern with Mother's failure to participate in services, it

ordered six more months of reunification services for her, stating that Mother must

immediately change her behavior. The court further found that the services provided so

far had been reasonable and ordered the children to remain placed in relative care.

       After Father was imprisoned, Mother began making a little more progress in her

child abuse classes and therapy sessions, but one therapist stated that Mother showed

signs of being in an abusive or controlling relationship. Another therapist stated that

Mother still had strong feelings for Father. Mother was visiting and communicating with

Father while he was in prison. With respect to the children, Mother would visit them, but

                                             4
she had trouble disciplining Christian. Also, Mother was not consistently involved with

the children's care; at one point she was unaware that M.P. had been sick with a high

fever for four days. After a contested 18-month review hearing, the juvenile court

terminated reunification services for Mother, finding that she had failed to participate

regularly and make substantive progress in a court-ordered treatment plan. She had not

fully completed her 52-week child abuse program.

         Subsequently, Mother completed her child abuse program and gave birth to a

healthy baby. She stopped attending her individual therapy sessions for several months

to concentrate on her newborn baby, and then restarted. Mother was regularly visiting

the children about three times a week for several hours at a time and, during these visits,

she generally demonstrated appropriate parenting skills. Nevertheless, the children

identified Relatives as their "family" and primary caregivers. For nearly two years, the

children had been thriving under the care of Relatives, who were employed, stable, and

had raised two teenage daughters. Relatives loved the children, were committed to

adopting and raising them, and were meeting the children's daily physical and emotional

needs.

         In January 2015, Mother filed a section 388 petition to modify the court's order

terminating her reunification services and obtain custody of the children. A month later,

the court held contested section 388 and section 366.26 hearings. After considering

witness testimony, documents, and arguments of counsel, the court found that Mother

had not met her burden of demonstrating changed circumstances or that placement of the

children with her was in their best interests. Furthermore, the court found that the

                                              5
children were likely to be adopted and no statutory exception applied to termination of

parental rights. The court terminated Mother's and Father's parental rights.

                                       DISCUSSION

                                              I

           The Juvenile Court Did Not Err in Denying the Section 388 Petition

A.     Applicable Law

       Under section 388, a parent may petition the court to change, modify, or set aside

a previously made court order. The petitioning party has the burden of showing, by a

preponderance of the evidence, that (1) there is a change of circumstances or new

evidence and (2) the proposed change is in the child's best interests. (§ 388; In re Jasmon

O. (1994) 8 Cal.4th 398, 415-416.) To support a section 388 petition, the change in

circumstances must be substantial. (In re Ernesto R. (2014) 230 Cal.App.4th 219, 223.)

"A petition which alleges merely changing circumstances and would mean delaying the

selection of a permanent home for a child to see if a parent, who has repeatedly failed to

reunify with the child, might be able to reunify at some future point, does not promote

stability for the child or the child's best interests." (In re Casey D. (1999) 70 Cal.App.4th

38, 47.)

       When determining whether a proposed section 388 modification is in the child's

best interests, the court considers a number of factors, including the seriousness of the

problem leading to the dependency, the reason the problem continued, the strength of the

parent-child and child-caretaker bonds, the time the child has been in the system, the



                                              6
nature of the change of circumstance, the ease by which it could be achieved, and the

reason it did not occur sooner. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 530-532.)

       Whether a previously made order should be modified and whether a change would

be in the minor's best interests are questions within the sound discretion of the juvenile

court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) The juvenile court's order will not

be disturbed on appeal unless the court has exceeded the limits of legal discretion by

making an arbitrary, capricious, or patently absurd determination. (Ibid.)

B.     Analysis

       Mother contends that her reunification services should not have been terminated

and she should have been given custody of the children. To support changed

circumstances, Mother argues that she completed her child abuse program, participated in

therapy, and cared for a newborn baby without Agency intervention. To support that the

proposed modification would be in the children's best interests, Mother argues that her

participation in services ameliorated the problems that gave rise to the children's need for

Agency protection, and she has a strong bond with the children.

       Based on our review of the record, the court did not abuse its discretion in finding

that Mother's circumstances had not changed in a way that resolved the issues requiring

removal of the children from her. The court indicated that Mother's completion of her

child abuse class and participation in therapy showed she was in the process of changing,

at best. Mother had not established that her mental health and emotional state had

stabilized to the point where she could protect and parent the children under all

circumstances. Notably, she had stopped therapy for several months preceding the

                                              7
section 388 hearing, and her therapist did not have enough information to assess Mother's

emotional stability or capability to raise three children on her own. The court considered

the entire history of the case, including concerns regarding Mother's inability to cope

with stressful events, which manifested in depression and isolation, and her past

gravitation to Father who she outwardly acknowledged to be abusive and violent. There

was evidence that Mother was continuing to communicate with Father in prison and was

still in some kind of relationship with him despite her statements to the contrary. Father

would be released from prison, and his problems remained untreated. Likewise, given

the uncertainty of Mother's coping mechanisms, her care of one baby without Agency

involvement did not show that Mother could safely parent three small children. Thus, the

court did not err in finding that Mother had not demonstrated changed circumstances to

reinstate reunification services.

       In addition, the court did not abuse its discretion in finding that placing the

children in Mother's custody would not be in their best interests. The physical abuse of

one-month-old M.P. had been severe. Mother had not only failed to protect her baby, she

had minimized Father's violent nature and believed him to be incapable of performing

intentional acts of abuse. As we have explained, issues concerning Mother's emotional

state and relationship with Father remained unresolved; thus, the problems leading to the

children's dependency had not significantly ameliorated. Moreover, the court noted that

although Mother had positive visits with the children, they did not consider her their

primary caretaker. Instead, they routinely went to Relatives for comfort, bathing, and

feeding, and Mother was not typically involved with the children's medical care or

                                              8
education. She had not availed herself of the ample time and opportunities to take a

greater role in the children's care. Finally, the court emphasized that the children had

been living with Relatives for a protracted period of time—virtually all of M.P.'s life—

and they primarily looked to Relatives as parents.

       The juvenile court did not err in denying Mother's section 388 petition.

                                              II

     The Juvenile Court Did Not Err in Declining to Apply the Beneficial Relationship
                                 Exception to Adoption

A.     Applicable Law

       At a section 366.26 permanency planning hearing, once the juvenile court finds by

clear and convincing evidence that the child is likely to be adopted within a reasonable

time, the court is required to terminate parental rights and select adoption as the

permanent plan unless the parent shows that termination of parental rights would be

detrimental to the child under one of several statutory exceptions. (In re Michael G.

(2012) 203 Cal.App.4th 580, 589.) One of these statutory exceptions is the beneficial

relationship exception to adoption, which applies when it would be detrimental to the

child to terminate parental rights in that "[t]he parents have maintained regular visitation

and contact with the child and the child would benefit from continuing the relationship."

(§ 366.26, subd. (c)(1)(B)(i), italics added.) The burden is on the party seeking to

establish the beneficial relationship exception to produce evidence establishing the

exception is applicable. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314 (Bailey J.).)




                                              9
       We apply a substantial evidence standard of review to a juvenile court's findings

on whether the requirements for the beneficial relationship exception have been

established. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.).)2

B.     Analysis

       The juvenile court found that Mother had maintained regular visitation and contact

with the children. Thus, to show applicability of the beneficial relationship exception to

adoption, Mother was required to establish she had a relationship with the children that

they would benefit from continuing. Here, substantial evidence supports the trial court's

finding that Mother did not establish the existence of such a relationship.

       The statutory phrase "benefit from continuing the relationship" (§ 366.26, subd.

(c)(1)(B)(i)) refers to a parent-child relationship that "promotes the well-being of the

child to such a degree as to outweigh the well-being the child would gain in a permanent

home with new, adoptive parents. In other words, the court balances the strength and

quality of the natural parent[-]child relationship in a tenuous placement against the

security and the sense of belonging a new family would confer. If severing the natural

parent[-]child relationship would deprive the child of a substantial, positive emotional



2      As the Agency notes, a "hybrid" standard of review regarding the beneficial
relationship exception has been used in some cases. In In re J.C. (2014) 226 Cal.App.4th
503, the court applied the substantial evidence standard of review to the factual issues of
whether the parent maintained regular visitation and contact with the child and whether
the parent proved he or she had a beneficial parental relationship with the child.
However, as to the weighing test in which the juvenile court balances the strength of the
parent-child relationship against the benefits the child would derive from adoption, the
abuse of discretion test applied. (Id. at p. 531; see Bailey J., supra, 189 Cal.App.4th at
pp. 1314-1315.)
                                             10
attachment such that the child would be greatly harmed, the preference for adoption is

overcome and the natural parent's rights are not terminated." (Autumn H., supra, 27

Cal.App.4th at p. 575.)

       To meet the burden of proof to establish a beneficial relationship, "the parent must

show more than frequent and loving contact, an emotional bond with the child, or

pleasant visits—the parent must show that he or she occupies a parental role in the life of

the child." (In re I.W. (2009) 180 Cal.App.4th 1517, 1527 (I.W.); see In re Jason J.

(2009) 175 Cal.App.4th 922, 936-937; In re Derek W. (1999) 73 Cal.App.4th 823, 827.)

The evidence must establish more than merely "a loving and happy relationship" (In re

Beatrice M. (1994) 29 Cal.App.4th 1411, 1419), and the parent must be more than " 'a

friendly nonparent relative.' " (Jason J., at p. 938.) "A child who has been adjudged a

dependent of the juvenile court should not be deprived of an adoptive parent when the

natural parent has maintained a relationship that may be beneficial to some degree, but

that does not meet the child's need for a parent." (In re Angel B. (2002) 97 Cal.App.4th

454, 466.) "[I]t is only in an extraordinary case that preservation of the parent's rights

will prevail over the Legislature's preference for adoptive placement." (In re Jasmine D.

(2000) 78 Cal.App.4th 1339, 1350.)

       Here, although it was undisputed that Mother and the children had a loving

relationship, substantial evidence supports the juvenile court's findings that it was not a

beneficial parent-child relationship within the meaning of the statutory exception to

adoption. The Agency reported that Mother generally had pleasant and positive visits

with the children as well as displayed appropriate parenting skills. However, the children

                                             11
were babies when they were taken into protective custody and had spent most of their

lives in Relatives' home. The children were too young to understand the concept of a

biological parent, and they considered Relatives' immediate family to be their own.

Relatives directed the children's daily routine, including baths, meals, potty training, teeth

brushing, and other activities, even on many nights that Mother was supposed to handle

certain tasks. Relatives arranged the children's medical care and educational needs, i.e.,

Christian's speech therapy; Mother was largely uninvolved in those matters. When the

children were hurt or sick, they looked to Relatives for comfort. The children generally

separated easily from Mother, and their primary attachment was to Relatives.

       Based on this evidence, the juvenile court reasonably could conclude that Mother

did not establish that she "occupies a parental role in the [lives] of the [children]." (I.W.,

supra, 180 Cal.App.4th at p. 1527.) Moreover, the court found that the children had done

exceedingly well and thrived in a stable home such that any relationship between them

and Mother was not outweighed by the security of a permanent placement. Finally, the

court stated that any emotional attachment the children had to Mother would not be

greatly harmed if parental rights were terminated.

       We accordingly conclude that Mother has not successfully shown that substantial

evidence does not support the juvenile court's determination that the beneficial

relationship to adoption was inapplicable.




                                              12
                                 DISPOSITION

     The judgment is affirmed.



                                               HALLER, Acting P. J.

WE CONCUR:



MCDONALD, J.



MCINTYRE, J.




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