Filed 4/22/13 In re C.G. CA5


                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
                                     FIFTH APPELLATE DISTRICT


In re C.G. et al., Persons Coming Under the
Juvenile Court Law.

KERN COUNTY DEPARTMENT OF HUMAN                                                            F065594
SERVICES,
                                                                             (Super. Ct. Nos. JD126658 &
         Plaintiff and Respondent,                                                    JD126659)

                   v.
                                                                                        OPINION
A.N.,

         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Jon E. Stuebbe,
Judge.
         Marsha F. Levine, under appointment by the Court of Appeal, for Defendant
Appellant.
         Theresa A. Goldner, County Counsel, Kelley D. Scott, Deputy County Counsel, for
Plaintiff and Respondent.
                                                        -ooOoo-


         *Before     Wiseman, Acting P.J., Cornell, J., and Peña, J.
       A.N. (mother) appeals from the juvenile court‟s orders denying her petition to
modify the court‟s previous orders (Welf. & Inst. Code, § 388) and terminating her
parental rights (Welf. & Inst. Code, § 366.26).1 Mother contends: (1) the juvenile court
abused its discretion by denying mother‟s request to reinstate her reunification services
for six months, and (2) the court further erred by failing to apply the “beneficial
relationship” exception to termination of parental rights (§ 366.26, subd. (c)(1)(B)(i)).
       We disagree and affirm the court‟s order.
                     FACTUAL AND PROCEDURAL HISTORIES
       When this case began, mother and E.G. III, the presumed father (father), were
living together with their two daughters, C.G., born in 2009, and A.G., born in 2011.
Mother also has an older daughter, N.L., who was living in the home, but she is not a
party in this case. (Mother has two other children; they live with their fathers.)
       C.G. and A.G. were placed in protective custody on June 30, 2011. The Kern
County Department of Human Services (Department) filed juvenile dependency petitions
on the girls‟ behalf on July 5, 2011. The petitions alleged that mother was arrested on
June 29, 2011, for battery on a spouse (father), and C.G. and A.G. were present at the
time of the incident. Mother had a history of domestic violence; in March 2010, she
agreed to protect her children from domestic violence between herself and father. The
home was reported to be filthy and unsafe, and mother was advised to have the home
cleaned up. On June 29, 2011, the home was found to be “deplorable, unsanitary and
unlivable” for the girls. The next day, the home remained too dirty for the girls to reside
in the home. Similar allegations were made against father. In addition, it was alleged
that, in March 2011, father tested positive for methamphetamine at a level indicated to be
strong, and he had a history of drug abuse dating back to 2003.



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



                                              2.
       At the detention hearing on July 7, 2011, the juvenile court found a prima facie
showing that C.G. and A.G. were persons described in section 300 and ordered them
removed from the home of parents.
       On July 20, 2011, the Department filed amended petitions, adding details to the
original allegations. The Department alleged that, during the domestic violence incident
of June 29, 2001, mother struck father 15 to 20 times with an open hand and closed fist.
On June 16, 29, and 30, 2011, health and safety hazards were found in the home. The
girls had access to an unconstructed bedroom and bathroom with nails and unsecured air
duct holes in the floor. There was little food in the home, trash and clothes throughout
the home, and trash and dirty diapers in the yard. The Department further alleged that the
girls were at substantial risk because of mother‟s mental illness. Mother had been
prescribed medication for schizophrenia and bipolar disorder, but she did not take her
medication on a regular basis.
       The Department prepared a social study for the jurisdictional hearing. It reported
that mother had a history with Child Protective Services in Los Angeles County. In 2004,
a referral of general neglect was received for N.L. Mother‟s sister reported that mother
had given her temporary custody of N.L. because mother was on drugs. Mother entered a
drug rehabilitation center but left before completing the program. According to mother,
she had been off drugs for almost a year, and she was discharged from a treatment
program because she completed drug counseling and parenting classes. The referral was
determined to be unfounded.
       In the current case, mother and father submitted to the amended petitions on the
basis of the social workers‟ reports. On August 5, 2011, the juvenile court found the
allegations of the amended petitions true. At the hearing on disposition held
September 12, 2011, the court adjudged the girls dependent children of the court and
placed them in the custody of the Department for suitable home placement. The court
found that mother and father made minimal progress toward alleviating the causes for the


                                            3.
girls‟ removal. The court ordered family reunification services to be provided for the
parents for a period of time not to exceed six months. Mother was ordered to participate
in counseling for domestic violence as a perpetrator, parenting, and neglect. She was
ordered to comply with mental health counseling and medication and to submit to random
drug testing. She was to have supervised visitation with the girls twice weekly.
       In a social study for the six-month status review hearing, the Department reported
that mother refused or failed to test nine times from September 2011 to February 2012. In
addition, mother tested positive for amphetamine and methamphetamine in September
2011 and January 2012, the only two times she submitted drug tests. Mother moved to
Los Angeles in November 2011 and had not provided the Department any documentation
that she was attending counseling for domestic violence, substance abuse, or parenting in
Los Angeles. She failed to attend a scheduled appointment with a psychiatrist on
February 1, 2012. For these reasons, the Department recommended termination of family
reunification services.
       At the status review hearing on April 5, 2012, the juvenile court found that mother
and father failed to participate regularly and make substantive progress in their court-
ordered treatment plans. Since the children were under three years old and there was not
a substantial probability they would be returned to the home within six months, the court
ordered the termination of reunification services. The court specifically found that
mother had made minimal progress toward alleviating the causes of the children‟s
removal and she made minimally acceptable efforts to facilitate the return of the children
to her care. A section 366.26 hearing was set for August 2012, and notice was given that
the Department recommended terminating parental rights and implementing a plan of
adoption.
       On July 3, 2012, mother filed a petition under section 388 requesting that the girls
be placed with her in a sober living home or, alternatively, that family reunification
services be reinstated. Mother asserted that she had been in a sober living home, Shields


                                             4.
for Families, since March 2012 and was actively pursuing all components of her former
family reunification plan. She submitted documents showing that she enrolled in Shields
for Families on March 13, 2012, she was making good progress in individual therapy, and
she regularly attended visits with her daughters. Shields for Families was described as a
community-based, multidisciplinary program for high-risk families, providing substance
abuse counseling, case management, parenting classes, child development services,
mental health, family reunification, and other services. Mother also completed a parent
education class and had all negative results for two months of random drug testing.
       The Department prepared a social study for the section 366.26 hearing, which was
submitted to the court on July 20, 2012. It described some of the supervised visits
between mother and the girls. In July and September 2011, mother and father had
supervised visits together. On January 6, 2012, mother and the maternal grandmother
visited the girls. It was reported, “At all times, both women were patient with the
children and attended to their needs .…” On January 27, 2012, mother had a two-hour
visit with the girls. She requested a visit in the morning so that she could make it to the
Greyhound station to go back to Los Angeles. In February 2012, mother asked to change
visits to every other week for four hours to accommodate her long travel from Los
Angeles County to Kern County, and the change was approved. In a visit on June 1,
2012, mother brought her older daughter to visit with C.G. and A.G. The supervising
social worker observed that mother did not seem very engaged during the visit, and the
older daughter seemed to have a better bond with C.G. When mother would ask C.G. to
do something, C.G. would either do the opposite, say no, or ignore mother completely,
but when her older half-sister asked C.G. to do something, she seemed to respond better.
Mother appeared to pay more attention to A.G. while the older daughter seemed to do
well with both C.G. and A.G. In a visit on June 22, 2012, mother appeared nonexpressive
and the girls appeared restless. Mother was appropriate with the children and engaged
them in conversation, but she did not smile much. Mother seemed tired, although she did


                                             5.
show affection. In a visit on June 29, 2012, the supervising social worker observed that
the visit started off well, but by the end of the visit, everyone was a bit tired. Regarding
the mother-child relationship, the Department concluded that, while “the mother
appropriately interacts with the girls,” “is attentive to their needs,” and “[t]he children
appear to reciprocate their mother‟s attention and have an enjoyable time,” “[t]here is no
indication of a significant bond or attachment between the mother and the children.”
       The Department recommended terminating parental rights and referring the girls to
the county adoption agency. The girls‟ current caretakers expressed a desire to adopt
them. The girls had been living with their prospective adoptive parents for over a year,
and the girls called them “mama” and “papa.” The Department reported that it appeared
“the prospective adoptive parents and the children have bonded together in a primary
relationship that should continue.”
       On August 2, 2012, the Department submitted a supplemental social study to the
court addressing mother‟s section 388 petition. The supplemental study reported that
mother had initiated enrollment in her counseling components in October 2011, but she
failed to show consistent attendance in her programs or completion of any counseling
components until her most recent enrollment in Shields for Families. It was noted that
mother often failed to submit to drug testing, and each failed test was recorded as a
presumptive positive. When mother did submit to testing, she had three negative results
in February and March 2012, and one positive result in March 2012. The Department
wrote: “Between September 2011 and April 2012, the mother was ordered to …
complete substance abuse counseling. She failed to do so. Further the mother neglected
to drug test on a regular and consistent basis. The mother attempted to enroll in several
classes to address her court ordered case plan; however, she was not consistent with her
participation or diligent with getting enrolled [in] the appropriate programs.” Mother has
been in the Shields program for only four and a half months, and “has not shown stability
at this time.”


                                              6.
       The Department opined: “[I]t is not in the children‟s best interest to be removed
from their current pre-adoptive placement and placed with the mother. Nor, is it in the
best interest of [C.G.] and [A.G.] for the mother to receive Family Reunification Services
at this time, as any other plan may only delay the children‟s permanence. Since the
children‟s dependency[,] the mother had several chances to pursue the issues that led to
the children‟s dependency; however, she did not until recently, eight months later.…
[T]he mother‟s circumstances [have] not changed, but [are] merely changing and the
children‟s best interest would be best served by keeping them in their current placement
and pursuing a permanent plan of adoption.”
       A second supplemental social study submitted on August 17, 2012, included
information that mother had all negative drug tests from April to early July 2012. Mother
also completed a 12-week parenting class and a course in job development from a
vocational services center. The Department continued to recommend that mother‟s
section 388 petition be denied.
       On August 21, 2012, the juvenile court held a combined hearing on mother‟s
section 388 petition and the section 366.26 permanency plan hearing. Mother testified in
support of her petition. She testified that she was attending domestic violence counseling
and anger management, parenting class, and substance abuse counseling. She explained
that her residential program generally lasts from 12 to 24 months, depending on the
person. Mother had been living there for almost six and a half months and planned to
stay for 18 to 24 months. (On cross-examination, she acknowledged she had only been at
the program for five and a half months. She also attended weekly individual therapy and
was stable on her medications.
       Mother recognized that A.G. was only two months old when she was taken away
and C.G. was two and a half years old. She testified, “I understand I got a late start, and
this time around, I am serious about getting my kids and having my kids and living a full
life with my kids.” Mother believed it would hurt her children if they were not able to see


                                             7.
her anymore. She told the court that C.G. knows her as “mom,” and “for [mother] to be
cut out of her life just like that, it would be detrimental to her.” Mother testified that A.G.
“knows [her] as mom, too.” She continued, “[A.G.] probably doesn‟t understand as much
as [C.G.] does, but this is the chance that I want to show the Courts and the Department
that I‟m willing and I‟ve been making the effort to come see my kids and doing—staying
in my program and doing what I need to do to get them back.”
       Mother‟s attorney acknowledged that mother only “got serious about what she
needed to do” in the last month of her original six-month reunification period, but since
then, she has “maintained that seriousness and commitment to doing what‟s necessary.”
He argued, “[W]hile it was a late start, the kids, especially [C.G], certainly have a
significant relationship with mom, spending the first two and a half years of her life with
the mother.… [¶] [A.G.], obviously less so, but you heard from the mother‟s testimony
and you can see from the description of the visitation, that even though [A.G.] has only
been seeing mom on a visitation-type basis for most of her life, she still seems to have a
close relationship.” Mother‟s attorney asked the court to find it in the children‟s best
interest to give mother six additional months of family reunification services. Father‟s
attorney was in favor of mother‟s section 388 petition and also argued that father had
such a close relationship with the girls that this may be an appropriate case for
guardianship. The attorney for the children had no objection to mother‟s request for six
months of reunification services.
       After hearing the attorneys‟ arguments, the juvenile court denied mother‟s petition.
The court explained:

       “This is one of those cases where … it does appear that there‟s some
       evidence that the mother has finally pulled it together, is headed in the right
       direction. The question is whether or not at this stage of the proceeding and
       after this long out of her care, the children‟s need of stability and
       permanency in their life outweighs any evidence that I have before me, that,
       in fact, she has started heading in the right direction.




                                              8.
              “So it‟s a difficult balancing kind of a decision to make. They are
       very young children, especially [A.G.]. The decision, of course, is easier.
       As to [C.G.], it‟s a little more difficult because she‟s older and has more
       contact with the mother, but she also … was very young at the time she was
       taken from the home.

              “I think at this point the children‟s need for stability is—outweighs
       the need of the parent. I don‟t think that the relationship between them is so
       strong as to outweigh the children‟s need for that, so I will deny the 388
       petition.”
       The court proceeded to the section 366.26 hearing. It rejected father‟s request for
guardianship and accepted the Department‟s recommendations. Finding clear and
convincing evidence that the children were likely to be adopted, the court terminated the
parental rights of mother and father and referred C.G. and A.G. to the county adoption
agency for adoptive placement.
       Mother filed a notice of appeal the next day.
                                        DISCUSSION
I.     Section 388 petition
       Any parent or other interested party may petition the juvenile court to modify or set
aside a prior dependency order pursuant to section 388 on grounds of changed
circumstance or new evidence. (§ 388, subd. (a)(1).) The party bringing a section 388
petition has the burden to prove that the proposed change is in the best interests of the
child. (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).)
       After the termination of family reunification services, a parent‟s interest in the
care, custody, and companionship of her children is no longer paramount. “Rather, at this
point „the focus shifts to the needs of the child for permanency and stability‟ [citation],
and in fact, there is a rebuttable presumption that continued foster care is in the best
interests of the child.” (Stephanie M., supra, 7 Cal.4th at p. 317.) A court deciding a
section 388 petition “at this stage of the proceedings must recognize this shift of focus in
determining the ultimate question before it, that is, the best interests of the child.” (Ibid.)



                                               9.
Further, “[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.)
       We review a juvenile court‟s decision on a section 388 petition for an abuse of
discretion. (Stephanie M., supra, 7 Cal.4th at p. 318.) “„The appropriate test for abuse of
discretion is whether the trial court exceeded the bounds of reason. When two or more
inferences can reasonably be deduced from the facts, the reviewing court has no authority
to substitute its decision for that of the trial court.‟” (Id. at pp. 318-319.)
       Mother contends the denial of her section 388 petition was an abuse of discretion.
She asserts the court failed to make the appropriate determination, that is, whether it was
in the children‟s best interests to grant mother‟s request to place the children with her or
provide her with an additional six months of reunification services. Instead, she argues, it
appears the court prematurely applied the test for determining whether the beneficial-
relationship exception to termination of parental rights was applicable. We are not
persuaded.
       In denying mother‟s petition, the court explained, “The question is whether or not
at this stage of the proceeding and after this long out of her care, the children‟s need of
stability and permanency in their life outweighs any evidence that I have before me, that,
in fact, [mother] has started heading in the right direction.” Mother‟s position appears to
be that it was incorrect for the court to refer to “stability and permanency” rather than
“best interest” in deciding the section 388 petition. Stability and permanency, however,
are primary considerations in determining a child‟s best interest. (Stephanie M., supra, 7
Cal.4th at p. 317; In re Marilyn H. (1993) 5 Cal.4th 295, 310 [after termination of
reunification services, it is presumed that continued care is in best interest of child].)




                                               10.
Consequently, it was appropriate for the court to consider the girls‟ stability and
permanency in deciding mother‟s section 388 petition.
       Mother also relies on In re Kimberly F. (1997) 56 Cal.App.4th 519 (Kimberly F.),
in which the court identified three principle factors relevant to the juvenile court‟s
evaluation of best interests in the context of a section 388 petition: “(1) the seriousness of
the problem which led to the dependency, and the reason for any continuation of that
problem; (2) the strength of relative bonds between the dependent children to both parent
and caretakers; and (3) the degree to which the problem may be easily removed or
ameliorated, and the degree to which it actually has been.” (Id. at p. 532.)
       The facts of this case are easily distinguishable from the facts of Kimberly F.
First, in Kimberly F., the court concluded that the reason for the dependency—a dirty
home—“was not as serious as other, more typical reasons for dependency jurisdiction,
such as … illegal drug use .…” (Kimberly F., supra, 56 Cal.App.4th at p. 522.) Here, in
contrast, the reasons for dependency included father‟s drug use and mother‟s domestic
violence, and mother does not dispute that she has a substance abuse problem. Second, in
Kimberly F., the petitioning mother demonstrated an undisputedly strong bond with her
children and also had a substantial amount of unmonitored visitation. (Id. at p. 532.) In
this case, the Department reported “no indication of a significant bond or attachment
between the mother and the children,” while “the prospective adoptive parents and the
children have bonded together in a primary relationship .…” Further, mother did not
have substantial or unmonitored visitation, seeing her girls in supervised visitation only
every other week. Third, in Kimberly F., the unsanitary conditions that led to removal
had been eliminated, and the appellate court rejected the juvenile court‟s other rationale
for denying the mother‟s section 388 motion—the mother‟s alleged “narcissistic”
personality. (Id. at p. 533 [observing this was description of human personality, not
mental illness].) Here, mother does not claim that the problems that led to dependency
have been eliminated; she argues only that she is headed in the right direction.


                                             11.
       Mother was given notice that failure to cooperate or avail herself of services could
result in the termination of services after only six months. Yet, she failed to complete her
case plan components within six months, failed to submit to drug tests, and tested positive
for drugs in September 2011, January 2012, and March 2012. There was evidence that
C.G. and A.G. were bonded with their caregivers, whom they called “mama” and “papa,”
as well as evidence that mother and the girls did not share a significant bond. At the time
the court heard her section 388 petition, mother was addressing her problems but may not
have been ready to assume custody of her daughters. Under these circumstances, we
cannot say the juvenile court abused its discretion in denying her section 388 petition.
(See In re Casey D., supra, 70 Cal.App.4th at pp. 43, 48-49 [no abuse of discretion in
denying petition where mother was in drug treatment and had been drug free for about
five months; mother‟s circumstances “were changing, rather than changed”].)
II.    “Beneficial relationship” exception to termination of parental rights
       Mother also contends that the juvenile court erred in failing to apply the
“beneficial relationship” exception to termination of parental rights. (See § 366.26,
subd. (c)(1)(B)(i).) We disagree.
       The purpose of a section 366.26 hearing is to select and implement a permanent
plan for the dependent child. (In re S.B. (2009) 46 Cal.4th 529, 532.) The Legislature‟s
preferred permanent plan is adoption. (In re D.M. (2012) 205 Cal.App.4th 283, 290.)
“At a section 366.26 hearing, the court must terminate parental rights and free the child
for adoption if [1] it determines by clear and convincing evidence the child is adoptable
within a reasonable time, and [2] the parents have not shown that termination of parental
rights would be detrimental to the child under any of the statutory exceptions to adoption
found in section 366.26, subdivision (c)(1)(B)(i) through (vi). (§ 366.26, subd. (c)(1).)”
(Id. at p. 290.)
       In this case, mother does not dispute that C.G. and A.G. are adoptable. She
contends only that the beneficial parent-child-relationship exception applies. (§ 366.26,


                                            12.
subd. (c)(1)(B)(i).) To avoid termination of parental rights under the beneficial-
relationship exception, the juvenile court must find “a compelling reason for determining
that termination would be detrimental to the child” due to the circumstances that “[t]he
parents have maintained regular visitation and contact with the child and the child would
benefit from continuing the relationship.” (Ibid.) It is the parent‟s burden to prove that
the exception applies. (In re Autumn H. (1994) 27 Cal.App.4th 567, 574 (Autumn. H.).)
       The beneficial-relationship exception requires a finding that the parent-child
“relationship 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.”
(Autumn H., supra, 27 Cal.App.4th at p. 575.) “[T]he 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.” (Ibid.)
       The beneficial-relationship exception requires the parent to show more than
frequent and loving contact or pleasant visits. (In re C.F. (2011) 193 Cal.App.4th 549,
555; In re C.B. (2010) 190 Cal.App.4th 102, 126; In re I.W. (2009) 180 Cal.App.4th
1517, 1527.) “The parent must show he or she occupies a parental role in the child‟s life,
resulting in a significant, positive, emotional attachment between child and parent.
[Citations.] Further, to establish the section 366.26, subdivision (c)(1)(B)(i) exception the
parent must show the child would suffer detriment if his or her relationship with the
parent were terminated. [Citation.]” (In re C.F., supra, at p. 555.)
       We review the court‟s ruling under the abuse of discretion standard. This means
that we review the court‟s findings of fact for substantial evidence and its conclusions of
law de novo, and we reverse its application of law to facts only if it is arbitrary and
capricious. (In re C.B., supra, 190 Cal.App.4th at p. 123.)


                                             13.
       Mother argues that the court erred in failing to apply the beneficial-relationship
exception in this case. She asserts that, “[b]ecause mother visited the children regularly
and consistently, because she and the children shared a bond, and because the impact
upon the children of the juvenile court‟s decision to remove her from their lives forever is
unknown, it cannot be said that adoption substantially outweighs the benefit to the
children of maintaining their relationship with mother.” After termination of
reunification services, however, the law does not require the juvenile court to find that the
benefits of adoption substantially outweigh the benefit of continuing the parental
relationship in order to terminate parental rights. To the contrary, it was mother‟s burden
to show “a substantial, positive emotional attachment” sufficient to overcome the
preference for adoption. (Autumn H., supra, 27 Cal.App.4th at p. 575.)
       Further, since mother had the burden of proof at trial, “the question for a reviewing
court becomes whether the evidence compels a finding in favor of [mother] as a matter of
law.” (In re I.W., supra, 180 Cal.App.4th at p. 1528.) The issue is whether mother‟s
evidence was uncontradicted, unimpeached, and of such weight as to leave no room for a
judicial determination that it was insufficient to support the finding. (Ibid.) Here, there
was evidence from the Department‟s social studies that there was no significant
attachment between mother and the girls. In response, mother offered no evidence, other
than her own opinion, that the girls would be harmed if her parental rights were
terminated. On the record before us, we cannot say that the record compels a finding that
preserving the girls‟ relationship with mother outweighs the benefits of adoption. In
other words, the juvenile court did not abuse its discretion by not applying the beneficial-
relationship exception in this case.
                                       DISPOSITION
       The juvenile court order is affirmed.




                                               14.
