Filed 6/13/16 In re R.F. CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


In re R.F., et al., Persons Coming Under the
Juvenile Court Law.

SONOMA COUNTY HUMAN                                                  A144952
SERVICES DEPARTMENT,
                                                                     (Sonoma County
         Plaintiff and Respondent,                                   Super. Ct. Nos. 4228-DEP, 4229-DEP)
v.
MARIA S.,
         Defendant and Appellant.


         Three children of Maria S. (Mother) were detained after Mother and her domestic
partner (Father), the presumed father of the two younger children, were found to be living
in a filthy home and failing properly to supervise the children as a result of the parents’
drug abuse. The parents also had a history of domestic violence. During the year-long
reunification period, both parents failed to participate successfully in drug treatment
programs, and reunification services were terminated.
         Immediately prior to the permanency planning hearing (Welf. & Inst. Code,1
§ 366.26), Mother filed a section 388 petition requesting return of the children to her
custody, arguing she had been drug-free for over a year. In the alternative, she resisted
their adoption, contending the juvenile court should select guardianship under the
“beneficial relationship” exception. (§ 366.26, subd. (c)(1)(B)(i).) The juvenile court

         1
             All statutory references are to the Welfare and Institutions Code.
denied Mother’s section 388 petition and entered a plan of adoption. Finding no abuse of
discretion, we affirm.
                                      I. BACKGROUND
       In June 2013, the Sonoma County Human Services Department (Agency) filed
dependency petitions in connection with Mother’s three children, L.F., a 14-year-old girl,
R.F., a 10-year-old boy, and J.F., a four-year-old boy.2 The petitions alleged Mother had
failed to provide adequate care, supervision, and a safe living environment due to her
substance abuse. It was also alleged that Mother and Father engaged in domestic
violence. (§ 300, subds. (b), (c).)
       The jurisdictional and dispositional report stated that Mother and the children
lived in an unkempt, filthy home with little or no food and no gas service and in which
“multiple family members” smoked marijuana and used methamphetamines. The report
claimed Mother had left the boys in the care of their 14-year-old sister for days at a time,
Mother and Father were regular users of methamphetamine, and on repeated occasions
Father had assaulted Mother while the children were at home. In speaking to the Agency,
Mother denied most of the allegations, although she acknowledged Father’s violence.
The juvenile court found the jurisdictional allegations true and declared the children
wards of the court.
       Prior to the 12-month review hearing, scheduled for July 2014, the Agency
reported that following the children’s detention, Mother had twice entered residential
drug treatment programs without completing them. The Agency had since been unable to
contact her. Father admitted to having relapsed into drug abuse after a period of sobriety.
At the time of the report, the parents were still living together, although both
acknowledged that Father’s drug abuse threatened Mother’s sobriety. Both parents had
regularly attended weekly visitation with the boys, but the Agency reported they had
difficulty “creat[ing] structure and discipline” for the boys and relied on staff to maintain


       2
        The present appeal concerns the two boys. We will discuss L.F. only as
necessary to explain the boys’ circumstances.


                                              2
discipline. The Agency recommended the court terminate reunification services and
schedule a section 366.26 permanency planning hearing, based on the parents’ “evident
pattern of inconsistency and lack of commitment” in participating in reunification
services, particularly drug abuse treatment.
          In an October 2014 order, the juvenile court, following a contested hearing,
terminated services and scheduled a permanency planning hearing for the boys. This
court affirmed that decision on the merits in denying Mother’s petition for an
extraordinary writ. (Maria S. v. Superior Court (Jan. 14, 2015, A143380) [nonpub.
opn.].)
          In a report filed on January 27, 2015, prior to the section 366.26 hearing, the
Agency reported the parents’ visitation had been decreased to semimonthly after the
termination of services and to monthly on or around January 6, 2015. The parents had
faithfully continued to attend visits, but they struggled to engage the boys and entertained
them with cell phone games. The boys had been placed together in a prospective
adoptive home and were doing reasonably well. They had bonded with the members of
their prospective family and expressed no distress at the prospect of adoption.
          In anticipation of the section 366.26 hearing, Mother filed a petition under
section 388 to modify the court’s earlier order and return the boys to her custody.
Attachments to the petition demonstrated that Mother and Father were actively involved
in a church. Mother had been participating in an outpatient drug abuse treatment
program for seven months and claimed to have been drug-free for a year, and she was
receiving weekly individual therapy. Mother’s psychotherapist believed that because of
her dedication, Mother was “less likely to relapse than most of my past clients.”3 There
was no indication, however, that Father had addressed his own admitted relapse into drug
use.

          3
         The petition contained no independent confirmation of Mother’s claim of
sobriety. A letter from the drug treatment program submitted with the petition stated
only that she was participating in group sessions and “appear[ed] to be making good
progress toward sustained abstinence.”


                                                3
       The motion also attached copies of notes from the “visit monitors” for eight of the
parents’ visits with the boys during October 2014 through January 2015. The notes
provided a different impression of the visits than the characterization in the Agency
report. The monitors observed extensive interaction among family members, finding the
parents engaged, attentive, and affectionate with the children. The parents played games
and sports with the boys, talked, and had generally busy, cheerful meetings. Although
the boys did not always behave, the monitors generally reported not having to intervene.
There was only one reference to excessive use of a cell phone, and there was no
indication the parents struggled to engage the boys.
       At the hearing on March 9, 2015, Mother testified she had been sober since
March 1, 2014, over a year a prior. She acknowledged having failed to attend scheduled
Agency drug testing from June through September of that year, although she claimed to
have appeared for equivalent testing. Mother said she had also begun taking prescription
antidepressant medication, which alleviated her depression. Mother characterized her
visits with the boys as successful. Mother said she was able to handle all behavioral
issues that arose during the visits. She believed she had “maintained a bond” with the
boys throughout the proceedings, based on the boys’ frequent expressions of affection.
       Mother acknowledged she continued to live with Father, who was not in a
treatment program. Mother characterized Father’s domestic violence as “more shouting”
than violence and blamed it on Father’s drug use. Neither parent was then participating
in domestic violence counseling, although they had in the past.
       The boys’ social worker also testified. Asked about the bond between Mother and
the boys, the social worker said relations between the parents and the boys were “okay”
and “cordial,” but “I have not seen much beyond that.” The social worker, who had only
observed two visits, said there was little interaction between the boys and the parents,
who struggled to engage the boys in conversation. R.F. was reserved, barely spoke to
them, and was reluctant to leave the car to begin the visits, and both boys defied the
parents’ directions. They did not seem to regret leaving at the end of visits.



                                             4
       The juvenile court denied Mother’s section 388 petition, terminated parental
rights, and ordered the boys’ adoption, finding insufficient evidence to support the
“beneficial relationship” exception.
                                       II. DISCUSSION
       Mother appeals the juvenile court’s decision, contending the court abused its
discretion in denying the section 388 petition and declining to find a beneficial
relationship between her and the boys.
A. Mother’s Section 388 Petition
       The purpose of the child dependency laws is to protect abused and neglected
children and to provide them permanent, stable homes. (In re Marilyn H. (1993)
5 Cal.4th 295, 307 (Marilyn H.).) After a child has been removed from the custody of his
or her natural parents under this system, the initial focus is on reuniting children and
parents through the provision of services designed to correct the problems that led to the
dependency proceeding. (Id. at p. 304.) After a statutorily prescribed time dependent
upon the age of the child (§ 361.5, subd. (a)), the juvenile court must make provision for
the permanent care of the child (§ 366.21, subd. (f)). At this point, the court’s focus
shifts from reunification to the child’s need for permanency and stability, and the court
must schedule a hearing under section 366.26, at which a plan for permanent care is
chosen. (Marilyn H., at pp. 304, 309.) If the natural parents have been unsuccessful at
reunification, this may entail permanent removal of the children from their home.
(Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249.)
       Throughout a dependency proceeding, section 388 grants parents the right to
petition for the modification of any court order on the basis of changed circumstances or
new evidence. (Marilyn H., supra, 5 Cal.4th at pp. 308–309.) “[R]eunification pursuant
to section 388 must remain a viable possibility even after the formal termination of
reunification services . . . if there is . . . a ‘legitimate change of circumstances.’ ” (In re
Kimberly F. (1997) 56 Cal.App.4th 519, 529 (Kimberly F.); see similarly In re Jasmon O.
(1994) 8 Cal.4th 398, 415.) Under section 388, however, the burden of proof is on the
petitioner to demonstrate by a preponderance of the evidence that the proposed


                                                5
modification is in the child’s best interests. (Jasmon O., at p. 415.) The petition “is
addressed to the sound discretion of the juvenile court and its decision will not be
disturbed on appeal in the absence of a clear abuse of discretion.” (Ibid.)
       The court in Kimberly F. established an analytical framework for evaluating a
section 388 petition seeking to modify an order terminating reunification services. As
that decision describes in more detail, the juvenile court should weigh (1) the seriousness
of the problem which led to the dependency and the reason for any continuation of that
problem or, alternatively, the reason the problem was not overcome prior to the
section 366.26 hearing; (2) the strength of the relative bonds between the dependent child
and both parents and caretakers, which in turn is affected by the length of time the child
has been in the dependency system; and (3) the degree to which the original problem may
be easily removed or ameliorated, and the degree to which it actually has been.
(Kimberly F., supra, 56 Cal.App.4th at pp. 530–532.) “While this list is not meant to be
exhaustive, it does provide a reasoned and principled basis on which to evaluate a
section 388 motion.” (Id. at p. 532.) While the Kimberly F. factors have been criticized
as failing to give sufficient weight to the child’s need for permanency and stability at this
stage of a dependency proceeding (see In re J.C. (2014) 226 Cal.App.4th 503, 526–527),
they are a good starting point for analysis.
       We find no abuse of discretion in the juvenile court’s conclusion Mother failed to
demonstrate a sufficient change of circumstances so that their return to her was in the
boys’ best interests. Mother argues the section 388 petition demonstrated she had
“cleared up the deficiencies in her case plan” by maintaining sobriety for a year,
continuing to engage in individual therapy, and maintaining consistent visitation. The
argument fails to acknowledge the full scope of the factors leading to the boys’ detention:
drug abuse by both parents that led to wholly inadequate parenting and domestic violence
between them that threatened the boys’ safety. Mother’s testimony suggested she had
provisionally overcome one of these factors, her own drug abuse. Her claim of a year’s
sobriety, however, was not particularly credible. During the time she claimed to be
sober, she dropped out of two treatment programs and failed to appear for scheduled drug


                                               6
testing for several months. The juvenile court could reasonably have concluded her
period of sobriety was significantly shorter than the claimed year. Yet even if Mother’s
claim was accepted at face value, two obstacles remained. First, Mother continued to live
with Father, who was not reported to have ceased his admitted drug abuse. As both
acknowledged, Father’s continued drug abuse in the household posed a continuing threat
to Mother’s sobriety. Second, Mother and Father had done little to address the risk of
domestic violence between them. In her testimony, Mother had minimized the nature of
the violence as “shouting,” rather than confronting it honestly. Neither parent was
actively involved in domestic violence counseling. Given the couple’s continued
cohabitation and their failure to address satisfactorily the problems giving rise to the
boys’ detention, the family court could readily have concluded there had been an
insufficient change in circumstances to justify returning the boys to Mother.
B. Beneficial Relationship
       Adoption is the strongly preferred permanent plan for dependent children who
have not reunified with their parents. “After reunification efforts have terminated, the
focus shifts from family reunification toward promoting the best interests of the child. A
child has a fundamental interest in belonging to a family unit, which includes a
‘placement that is stable, permanent, and that allows the caretaker to make a full
emotional commitment to the child.’ ” (In re Zachary G. (1999) 77 Cal.App.4th 799,
808.) At this stage, the juvenile court must order adoption and termination of parental
rights unless “one of the specified circumstances [in section 366.26,
subdivision (c)(1)(B)] provides a compelling reason for finding that termination of
parental rights would be detrimental to the child.” (In re Celine R. (2003) 31 Cal.4th 45,
53.)
       The exception claimed by Mother is found in section 366.26,
subdivision (c)(1)(B)(i), which authorizes the juvenile court to decline to terminate
parental rights if it finds termination would be detrimental to the child because “[t]he
parents have maintained regular visitation and contact with the child and the child would
benefit from continuing the relationship.” “ ‘To trigger the application of the parental


                                              7
relationship exception, the parent must show the parent-child relationship is sufficiently
strong that the child would suffer detriment from its termination.’ [Citation.] A
beneficial relationship ‘is one 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 re Marcelo B. (2012) 209 Cal.App.4th 635, 643 (Marcelo B.).)
Demonstrating the child would benefit from continuing the parental relationship “requires
the parent to prove that ‘severing the natural parent-child relationship would deprive the
child of a substantial, positive emotional attachment such that the child would be greatly
harmed. [Citations.] A biological parent who has failed to reunify with an adoptable
child may not derail an adoption merely by showing the child would derive some benefit
from continuing a relationship maintained during periods of visitation with the parent.’
[Citation.] Evidence that a parent has maintained ‘ “frequent and loving contact” is not
sufficient to establish the existence of a beneficial parental relationship.’ ” (Ibid.)
       It is the parent’s burden to show the beneficial parental relationship exception
applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1345.) There is some difference
of opinion regarding the applicable standard in reviewing a juvenile court’s finding on
the beneficial parental relationship exception, with courts applying either the substantial
evidence or abuse of discretion standards, or a combination. (See In re K.P. (2012)
203 Cal.App.4th 614, 621–622.) We find little practical difference in these
circumstances. (See In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314–1315.)
       The record holds little evidence to suggest the termination of Mother’s parental
rights would deprive the boys of a “ ‘substantial, positive emotional attachment such that
[they] would be greatly harmed.’ ” (Marcelo B., supra, 209 Cal.App.4th at p. 643.)
While Mother and Father visited regularly, the nature of the visits did not demonstrate an
unusually strong bond with the parents. The Agency’s characterization suggested the
boys were relatively indifferent to their parents. The monitors’ reports suggested
visitation involved happier, more intense interactions. Yet even these reports did not
suggest the boys’ relationship to their Mother was such that they would be greatly



                                               8
harmed by its termination. According to the Agency, the boys did not report anxiety or
regret when faced with the prospect of adoption and separation from Mother.
       Mother’s testimony that a “bond” had been maintained based on the boys’
expressions of affection, standing alone, did not support application of the exception.
Rather, this is at most an example of the type of “ ‘ “frequent and loving contact” ’ ” that
is insufficient to support the finding of a beneficial relationship. (Marcelo B., supra,
209 Cal.App.4th at p. 643.)
       Mother argues the Agency’s gradual reduction of the parents’ visitation following
the termination of reunification services violated her “due process right to prevent the
termination of her parental rights.” In the case she cites as authority, however, the
mother was denied visitation entirely throughout the course of the dependency
proceedings, thereby preventing her from any opportunity to reunify with the child. (In
re Hunter S. (2006) 142 Cal.App.4th 1497, 1501, 1505–1506.) No similar denial existed
here. Ample opportunity for visitation occurred during the services period. Further, the
parents continued to be permitted biweekly visits with the boys through January 2015.
Only in the two months immediately preceding the section 366.26 hearing were visits
reduced to once per month. There is no factual basis for the claim that Mother was
prevented from demonstrating a beneficial relationship by restrictions on visitation.
                                   III. DISPOSITION
       The juvenile court’s order is affirmed.




                                              9
                                 _________________________
                                 Margulies, Acting P.J.


We concur:


_________________________
Dondero, J.


_________________________
Banke, J.




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