Filed 3/7/16 In re A.P. CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                        (Shasta)
                                                            ----




In re A.P. et al., Persons Coming Under the Juvenile                                         C079395
Court Law.

SHASTA COUNTY HEALTH AND HUMAN                                                          (Super. Ct. Nos.
SERVICES AGENCY,                                                                       13JVSQ2984301,
                                                                                       13JVSQ2984401,
                   Plaintiff and Respondent,                                           13JVSQ2984501)

         v.

D.P. et al.,

                   Defendants and Appellants.




         J.T., mother of the minors, and D.P., father of A.P., appeal from the orders of the
juvenile court denying their petitions for modification and terminating their parental
rights.1 (Welf. & Inst. Code, §§ 388, 366.26, 395.)2 Mother contends the court abused




1   B.B., the father of the other two minors, has not appealed.

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its discretion in denying her petitions for modification and erred in failing to apply the
beneficial parental relationship exception to avoid terminating her parental rights. Father
argues the denial of his petition for modification should be reversed for ineffective
assistance of counsel. Father further argues the court erred in terminating his parental
rights in light of counsel’s inadequate representation regarding his petition for
modification which resulted in a denial of due process. We affirm.
                                           FACTS
        The minors, T.T., age four; A.T., age two; and A.P., age three months, were
detained in September 2013 due to parental substance abuse and chronic domestic
violence which placed the minors at risk of physical harm. When the Shasta County
Health and Human Services Agency (Agency) removed the minors from the home, they
went willingly with the social worker and did not ask to return home. The minors were
placed together.
        The disposition report recommended the parents be offered reunification services.
An addendum filed in December 2013 stated D.P. had been sentenced to state prison.
Mother was making little progress in services and had only sporadic contact with the
Agency. The minors were thriving in foster care. All three had shown delays of various
sorts when removed from the home, and all were showing improvement.
        A second addendum in February 2014 reported the minors continued to make
progress in overcoming their delays. Mother did not recognize that her behaviors had led
to the minors’ removal and remained minimally involved with services. D.P. was serving
a two-year sentence in state prison and services were no longer recommended for him
since the length of his sentence exceeded the reunification period. The Agency continued
to recommend reunification services for mother.




2   Further undesignated statutory references are to the Welfare and Institutions Code.

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       At the jurisdiction/disposition hearing in February 2014, the court sustained the
petitions, ordered services for mother, and bypassed services for D.P. The June 2014
case plan for mother required her to attend and show progress in anger management
classes, participate in a mental health assessment including a psychiatric evaluation,
complete a domestic violence program, participate in a parenting class, and submit to
drug testing. D.P.’s attorney informed the court she would file a petition for modification
seeking services when D.P. was released from custody.
       The July 2014 review report recommended termination of mother’s services.
Mother had made some changes, but when she did not get her way, she reverted back to
blaming others for her failures. D.P. remained in prison and sent the social worker two
certificates for three-day training programs in conflict resolution. Mother visited fairly
consistently and was able to demonstrate parenting skills when interacting with the
minors but still asked for a lot of help from staff in visits. Mother continued to have
outbursts and difficulty managing her emotions, requiring staff to be present for mother’s
transactions with the foster mother. Visit staff was concerned because mother’s unstable
emotional state led her to snap at the minors. Mother did not take responsibility for the
minors’ removal, had not done required random testing, and had not completed the
recommended mental health services, including a psychological evaluation, individual
therapy, a medical evaluation, and anger management classes. The review hearing was
continued due to D.P.’s imminent release from custody.
       An addendum in September 2014 stated that mother did complete a psychological
evaluation which concluded mother would benefit from therapy. Mother had begun
individual therapy and her anger management class was nearly complete as she needed
only two more classes. Mother tested positive for marijuana in July 2014 and failed to
test in August 2014. Mother’s contact with the social worker had marginally improved,
but she was evicted from her residence in August 2014. Mother continued to use good



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parenting skills when visiting the minors. D.P. remained in state prison and expected to
be released in late September 2014.
       D.P. was out of custody and present at the six-month review hearing in October
2014 but did not file a petition for modification seeking services. The court adopted the
recommended findings and orders terminating reunification services for mother and
setting a section 366.26 hearing to select a permanent plan.
       The January 2015 assessment for the section 366.26 hearing recommended
termination of parental rights. Mother continued to visit and show good parenting skills.
D.P. had visited A.P. twice since his release from state prison in September 2014. A.P.’s
delays had resolved and the behavioral issues of the other two minors, A.T. and T.T.,
were being addressed with consistent parenting and therapy. The Agency planned to
transition all three minors to an approved placement in Idaho with the paternal
grandparents of A.T. and T.T. The Agency assessed the minors as adoptable although
they had ongoing behavioral issues and skill delays.
       Mother filed section 388 petitions for modification in January 2015, seeking to
modify the October 2014 order terminating her services to an order returning the minors
to her custody with family maintenance services. Mother alleged, as changed
circumstances, that she visited regularly and had graduated from the 16-week anger
management class on October 13, 2014. Mother also alleged she had stable housing and
was voluntarily continuing to participate in Triple P parenting. Mother alleged the
proposed order was in the minors’ best interest because they had a strong bond with her
and reunification was in their best interests.
       In March 2015, the Agency filed an addendum addressing the visitation
relationship between the parents and the minors. Mother had monitored visits once a
week for two hours. Mother was affectionate and attentive at visits, greeting the minors
with smiles and hugs. Mother brought activities to engage the minors and her attendance
was good.

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       The social worker also observed a visit in February between mother and all three
minors. Mother involved the minors in activities, redirected them as needed, and
maintained eye contact with the baby. The social worker did not see any physical
expressions of affection from mother or the minors and the minors did not say they loved
her. Mother did not hold A.P. The foster mother reported that the minors seldom ask to
see mother but are happy about going to visits because they get presents and mother
brings food. The foster mother said the youngest minor did not see mother as parental
and visits for the other minors were simply a part of their weekly routine. The addendum
concluded that the minors had a relationship with mother due to the continued visits but
that mother did not fill a parental role for them. Further, there was no evidence she had
resolved the issues of drug abuse and domestic violence which had led to the minors’
removal and her reported progress had not been sustained over time.
       D.P. had supervised monthly visits and started visiting in October 2014. The
social worker observed D.P.’s February 2015 visit. D.P. appropriately parented A.P. and
the visit went well.
       A second addendum in April 2015 reported mother’s last drug test was in June
2014 and that it remained difficult to contact her about the petitions for modification,
vaccination permission for the minors, and other issues. The addendum noted mother
had not completed the recommended mental health services. The Agency had been
unable to verify mother’s claimed medical issues and could not assess whether she
continued to blame others for the minors’ removal. The minors needed permanency now
and could not wait for mother to demonstrate whether she could safely care for them.
       A third addendum in mid-April provided an update regarding a sheriff’s record of
a call to a recent domestic violence incident between mother and D.P. at the trailer park
where mother lived. The Agency remained concerned about mother’s ability to regulate
her emotions.



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       In May 2015, D.P. filed a petition seeking to modify the February 4, 2014, order
bypassing his services to an order for services based on his recent discharge from
incarceration. (§ 366.22, subd. (b).) D.P. alleged, as changed circumstances, that he
completed a parenting education program in prison, maintained contact with the social
worker, and immediately contacted both counsel and the social worker on his release.
D.P. alleged the modification would be in A.P.’s best interests because he had visited
A.P. since his release from custody; had engaged in voluntary services including
parenting, drug and alcohol treatment, and anger management; was employed; and was
living with family. D.P. attached certificates from programs he completed in prison,
including a three-day training in anger management and conflict resolution; a three-day
training in advanced anger management and conflict resolution; completion of a
parenting education program and a letter of support from his current employer. D.P. also
provided a letter dated April 14, 2015, from his probation officer stating that D.P. was
compliant with his conditions of his release and was referred to a 52-week batterer’s
program to help him reunify with mother. D.P. had last attended the program in March
2015 and had only completed eight and one-half weeks of the program. The probation
officer made it clear that the program was not required as a condition of his supervision.
       The combined hearing on the section 388 petitions for modification and the
section 366.26 issues commenced in May 2015. Mother testified she had not done any
additional classes but had continued to work on personal growth and conflict resolution
“within herself.” Mother testified she did complete the anger management class she was
in when services were terminated in October 2014. Further, she had continued with
parenting classes which helped her during visits. Mother testified she currently had a
stable residence in a mobile home she bought, had food and clothing for the minors, and
was drug free, although she had not participated in services for that issue. Mother said
she had not been involved in domestic violence since October 2014 and was not at the
trailer park during the incident described in the Agency’s third addendum. Mother felt

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she could care for the minors with family support and had not needed mental health
treatment or medication. Mother did go to a counselor, but it was expensive and she had
not seen the counselor since services were terminated. Mother believed she was stable
now and it was best for the minors to be in her care.
       D.P. testified that while he was in prison for domestic violence against mother, he
completed a parenting class and two conflict resolution classes. On his release, his
probation officer recommended a batterer’s program which he began but had not
completed. D.P. testified he did well on parole and visited A.P. monthly. He had signed
up for a parenting class but had only attended two classes due to his work schedule. D.P.
denied he was involved in any domestic violence with mother. He blamed his prior
domestic violence on drug use and said he was clean since he was sentenced to state
prison where he participated in 12-step meetings. He had no intention of reunifying with
mother.
       D.P.’s counsel argued he was entitled to services under section 366.22,
subdivision (b) as an incarcerated parent who actively participated in services in custody.
The Agency’s counsel argued that D.P. did not meet the statutory criteria for services and
the statute did not apply to him. Counsel also argued that mother had shown no change
since the testimony in October. Mother was not in therapy or on medication, had not
completed services to prevent domestic violence, and did not participate in drug
treatment because she said it was not a problem.
       In ruling, the court reviewed the history of the case, noting that D.P. was bypassed
for services and mother’s services were terminated. The court denied mother’s petitions
for modification, finding mother had made minimal changes since termination of
services, having only completed the two remaining sessions of the anger management
program she was already in. The court found there was no change in circumstances, and,
even if there was, the proposed modification would not be in the minors’ best interests.



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       The court found father’s petition for modification untimely as it could have been
brought in the previous October when he was released from custody since he had done
programs in prison and was visiting the minor all prior to the six-month review hearing.
Father still did not act when mother filed her petitions for modification in January. It was
not until four months later that he attempted to extend services pursuant to section
366.22, subdivision (b). The court found that the statute did not apply to D.P. and that, in
any case, the evidence did not support the necessary findings even if the statute had
applied. The court observed that father was in custody for domestic violence against
mother and had not continued to participate in the 52-week batterer’s program and had no
home for the child. The court denied father’s petition for modification.
                                       DISCUSSION
                                              I
       Mother contends the juvenile court abused its discretion in denying her petitions
for modification because she demonstrated both changed circumstances and that the
proposed order was in the minors’ best interests.
       A parent may bring a petition for modification of any order of the juvenile court
pursuant to section 388 based on new evidence or a showing of changed circumstances.3
“The parent requesting the change of order has the burden of establishing that the change
is justified. [Citation.] The standard of proof is a preponderance of the evidence.
[Citation.]” (In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) Determination of a
petition to modify is committed to the sound discretion of the juvenile court and, absent a


3 Section 388 provides, in part: “Any parent . . . may, upon grounds of change of
circumstance or new evidence, petition the court in the same action in which the child
was found to be a dependent child of the juvenile court . . . for a hearing to change,
modify, or set aside any order of court previously made or to terminate the jurisdiction of
the court.” (§ 388, subd. (a)(1).) The court must set a hearing if “it appears that the best
interests of the child . . . may be promoted by the proposed change of order . . . .” (§ 388,
subd. (d).)

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showing of a clear abuse of discretion, the decision of the juvenile court must be upheld.
(In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; In re Robert L. (1993) 21 Cal.App.4th
1057, 1067.) The best interests of the child are of paramount consideration when the
petition is brought after termination of reunification services. (In re Stephanie M., supra,
7 Cal.4th at p. 317.) In assessing the best interests of the child, the juvenile court looks
not to the parent’s interests in reunification but to the needs of the child for permanence
and stability. (Ibid.; In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
       At the time the juvenile court terminated services, mother had not completed anger
management, was not drug testing, and had not participated in domestic violence classes.
Mother’s petitions for modification stated that, shortly after her services were terminated,
she completed the anger management class. Further, she now had a stable home and was
continuing parenting classes. The petitions did not mention drug testing, drug relapse
prevention, or domestic violence classes. In her testimony mother simply said she was
drug free but had not participated in any services. Similarly, she testified she had not
been involved in any domestic violence but did not indicate she had participated in any
classes or therapy to address the previous problem or deal with violence issues in any
concrete manner. Additionally, she said she did not need mental health treatment,
although there was evidence that she continued to have issues with labile emotions, and it
remained unclear whether she continued to blame others for the minors’ removal. At
best, the evidence showed mother’s circumstances were changing, not changed.
       Mother was also required to show that the proposed modification was in the
minors’ best interests. The minors, who were overcoming developmental delays and
behavioral issues which existed when they were removed from the home, needed
permanence and stability with consistent parenting and continued therapy to meet their
potential. In the months following the order terminating her services, mother had
actively addressed only a few of the concerns which existed when the juvenile court
terminated her services. The issues which remained were not likely to be resolved

                                              9
quickly. Mother was seeking not merely return of the minors, but additional services for
an unknown period of time to achieve reunification. Such delay was not in the minors’
best interests.
       Given that circumstances had not changed and that mother did not demonstrate
that return would be in the minors’ best interests, the juvenile court was not required to
gamble with the minors’ safety and stability by granting mother’s petitions for
modification. There was no abuse of discretion in denying the petition.
                                              II
       Mother further contends that the beneficial parental relationship exception should
apply because she visited the minors regularly and there was a strong bond between her
and the minors.
       At the selection and implementation hearing held pursuant to section 366.26, a
juvenile court must choose one of the several “ ‘possible alternative permanent plans for
a minor child . . . . The permanent plan preferred by the Legislature is adoption.
[Citation.]’ [Citation.] If the court finds the child is adoptable, it must terminate parental
rights absent circumstances under which it would be detrimental to the child.” (In re
Ronell A. (1996) 44 Cal.App.4th 1352, 1368.) There are only limited circumstances
which permit the court to find a “compelling reason for determining that termination [of
parental rights] would be detrimental to the child.” (§ 366.26, subd. (c)(1)(B).) The
party claiming the exception has the burden of establishing the existence of any
circumstances which constitute an exception to termination of parental rights. (In re
Cristella C. (1992) 6 Cal.App.4th 1363, 1373; In re Melvin A. (2000) 82 Cal.App.4th
1243, 1252; Cal. Rules of Court, rule 5.725(d)(4); Evid. Code, § 500.)
       Termination of parental rights may be detrimental to the minor when: “The
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).) However, the
benefit to the child must promote “the well-being of the child to such a degree as to

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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 attachment such that the child
would be greatly harmed, the preference for adoption is overcome and the natural
parent’s rights are not terminated.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575;
In re C.F. (2011) 193 Cal.App.4th 549, 555.) Even frequent and loving contact is not
sufficient to establish this benefit absent a significant positive emotional attachment
between parent and child. (In re I.R. (2014) 226 Cal.App.4th 201, 213.)
       Mother satisfied the first element of the exception by visiting the minors regularly.
However, she did not establish that the strength and quality of the parent/child
relationship would outweigh the security and sense of belonging adoption would provide.
       When the minors were first removed from the home, they went willingly with the
social worker and did not ask to return home. The minors thrived in foster care where
consistent and stable parenting reduced their developmental delays and decreased the
behavioral problems of the two older minors. They did not ask about visits but were
happy to go because they got food and presents. Mother’s parenting in visits was good
and this made visits pleasant but, as late as February 2015 in the observed visit, there
were no signs or verbalizations of affection between mother and the minors. The
evidence showed that the quality of the parent/child contact was equivalent to that of a
friendly visitor and there was no evidence that severing the contact would be detrimental
to the minors. The juvenile court did not err in failing to apply the beneficial relationship
exception to avoid termination of parental rights.
                                             III
       D.P. argues the denial of his petition for modification should be reversed for
ineffective assistance of counsel because counsel delayed in filing the petition, thereby

                                             11
causing the juvenile court to deny the petition as untimely. D.P. asserts that the juvenile
court would have granted his petition for modification if it had been timely and that he
would have reunified with the minor, avoiding termination of his parental rights. He
contends that it was error to terminate his parental rights because counsel’s inadequate
performance constituted a violation of his due process rights.
        D.P.’s appellate counsel sought expansion of her appointment in order to bring a
petition for writ of habeas corpus in the juvenile court to litigate the question of
ineffective assistance of trial counsel, relying on a broader factual basis than the record
on appeal could provide. This court granted the request. (See In re Darlice C. (2003)
105 Cal.App.4th 459, 466.)
        The petition was filed and fully litigated resulting in a lengthy written opinion by
the juvenile court denying the petition.4 The juvenile court found D.P.’s trial counsel’s
performance in the matter of timely filing a petition for modification to seek reunification
services for D.P. after his release from prison was inadequate. However, the juvenile
court did not find D.P. was prejudiced thereby because he did not “demonstrate that a
better outcome than the termination of his parental rights” would have occurred. The
court found D.P.’s conclusions speculative because there was no basis to conclude that
D.P. would complete his services, if offered, or that completion would result in
reunification. The juvenile court noted that prior to its ruling on May 19, 2014, the
information suggested to the contrary. Further, there remained concerns about D.P.’s
ongoing domestic violence and waiting for D.P. to complete services if the petition were
granted would result in a significant delay in permanency for the minor.
        A parent claiming ineffective assistance of counsel has the burden of showing that
counsel failed to act in a manner to be expected of reasonably competent counsel, that




4   At respondent’s request we have taken judicial notice of the juvenile court’s ruling.

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“counsel’s representation fell below an objective standard of reasonableness . . . .”
(Strickland v. Washington (1984) 466 U.S. 668, 688; [80 L.Ed.2d 674, 693]; In re
Emilye A. (1992) 9 Cal.App.4th 1695, 1711.) The parent must also show prejudice, that
is, “a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” (Strickland v. Washington, at
p. 694; People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) A claim for ineffective
assistance of counsel may be rejected “if the party fails to demonstrate that but for trial
counsel’s failings, the result would have been more favorable to the defendant.” (In re
Nada R. (2001) 89 Cal.App.4th 1166, 1180.)
       D.P. was unable to demonstrate that, had counsel’s performance been adequate, he
would have had a successful outcome in either his petition for modification or in
successfully avoiding termination of his parental rights. No due process violation or
reversible error appears.
                                       DISPOSITION
       The orders of the juvenile court terminating parental rights are affirmed.



                                             /s/
                                           Blease, Acting P. J.

We concur:



         /s/
       Butz, J.



         /s/
       Duarte, J.


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