Filed 7/31/14 In re David G. CA2/2

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     SECOND APPELLATE DISTRICT
                                                  DIVISION TWO

In re DAVID G., et al., Persons Coming                               B253619
Under the Juvenile Court Law.
                                                                     (Los Angeles County
                                                                     Super. Ct. No. CK80412)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

         Plaintiff and Respondent.

         v.

JULIA G., et al.,

         Defendants and Appellants.




         APPEALS from an order of the Superior Court of Los Angeles County. Julie Fox
Blackshaw, Judge. Affirmed as to mother; dismissed as to father.
         Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and
Appellant Julia G.
         Frank H. Free, under appointment by the Court of Appeal, for Defendant and
Appellant David G.
         John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Peter Ferrera, Deputy County Counsel for Plaintiff and Respondent.
       Parents Julia G. (mother) and David G. (father) appeal from the termination of
their parental rights to their two children, David G., Jr. (David) and Daniel G. (Daniel).
Mother contends that the juvenile court abused its discretion in denying her petition to
modify prior orders terminating reunification services,1 and that the court erred in
refusing to apply the “benefit exception” to the termination of parental rights.2 Father’s
appointed counsel filed a brief that raised no issues, but asked that if mother’s challenges
were well taken, the termination order be reversed as to him as well.3 Father was given
the opportunity to submit an additional letter or brief identifying any contentions he
wished to raise on appeal, which he has not done. Accordingly, his appeal will be
dismissed as abandoned pursuant to In re Phoenix H. (2009) 47 Cal.4th 835, and In re
Sade C. (1996) 13 Cal.4th 952. We reject mother’s contentions and affirm the
termination order.
                                    BACKGROUND
       In December 2009, the Los Angeles County Department of Children and Family
Services (Department or DCFS) detained David at birth and filed a petition to bring him
within the jurisdiction of the court. On April 6, 2010, the juvenile court sustained the
first amended dependency petition, adjudicated David a dependent of the juvenile court,
and placed him in the care and custody of his maternal aunt Jessica R. (Jessica). The
sustained petition alleged that when David was born, both he and mother tested positive
for the existence of methamphetamine, amphetamine and opiates, and that mother had a
history of illicit drug use, including the abuse of the prescription drug Adderall. The
sustained petition also alleged that father was a registered substance abuse offender, with
a long history of drug abuse and numerous arrests and convictions for possession of



1      See Welfare and Institutions Code section 388, subdivision (a). All further
statutory references are to the Welfare and Institutions Code, unless otherwise indicated.

2      See section 366.26, subdivision (c)(1)(B)(i).

3      See generally, In re A.L. (2010) 190 Cal.App.4th 75, 80.

                                             2
narcotics, possession of narcotics for sale, second degree burglary, second degree
robbery, and battery.
       The Department reported that mother too had a lengthy criminal history, including
gun and drug related arrests and convictions beginning in 2000. In addition, father had
failed to reunify with David’s half-sisters several years earlier. Father’s parental rights to
his daughter Melissa were terminated in 2005, and she was thereafter adopted. At the
jurisdiction/disposition hearing on April 6, 2010, the court ordered monitored visits and
reunification services for the parents, and ordered them to participate in individual
counseling, parenting classes, drug counseling, and to undergo random alcohol and drug
tests. The following month, father was ordered to attend AA or NA meetings.
       Despite notice, neither mother nor father appeared at David’s six-month review
hearing in October 2010. The juvenile court found that reasonable services had been
provided to mother and father and that they were not in compliance with the reunification
plan. The court terminated parents’ reunification services with regard to David, and
scheduled a section 366.26 permanent plan hearing for February 2011. The section
366.26 hearing was later continued to March 2011.
       In December 2010, when Daniel was two months old, he was also detained from
mother and father’s custody. The Department filed a dependency petition alleging both
parents’ histories of substance abuse, the provision of permanent placement services to
Daniel’s brother David, and father’s criminal history. The court ordered monitored visits
for both parents, but no reunification services were provided to father due to the prior
termination of parental rights.4 The court ordered mother to participate in individual
counseling and to undergo random drug tests. The court ordered father to participate in
drug counseling and to undergo random drug tests. Daniel was placed in the custody of
his paternal aunt, Irene C. (Irene), who had adopted David’s half-sister Melissa, several
years before.




4      See section 361.5, subdivision (b)(10).

                                              3
       In February 2011, the Department reported that father had been arrested on theft
and robbery charges and was incarcerated pending a court hearing. Mother was in
compliance with her aftercare program, was receiving individual and drug counseling,
and had tested negative in three random drug tests. In March 2011, the court sustained
the dependency petition regarding Daniel and adjudicated him a dependent of the juvenile
court. The court ordered a permanent plan of legal guardianship for David, naming
Jessica as legal guardian. The court ordered monitored visitation for the parents a
minimum of one hour once per week.
       During the next few months, the juvenile court terminated its jurisdiction over
David and attempted to transfer Daniel’s matter to Riverside County, where mother was
reportedly living. Since the Riverside court was unable to verify residence, the matter
was returned to Los Angeles. From July to September 2011, the children’s social worker
(CSW) reported difficulties in communicating with mother to verify her residence,
explaining that mother did not return many telephone calls and seemed “guarded” about
giving information about her whereabouts. The CSW reported that mother was living in
Riverside County, but she had no stable home and had refused to make herself available
to Riverside County child welfare workers. Mother’s visits to Daniel were sporadic,
occurring approximately once a month, but mother was appropriate and attentive during
the visits. In late August, the CSW learned that mother had an outstanding arrest warrant.
During this time father was incarcerated and did not visit Daniel.
       In October 2011, the CSW reported that mother had been arrested and father was
still in custody with a release date of March 2013. Mother had discontinued visits to her
therapist some months earlier and had not visited Daniel since August. Neither parent
had been drug testing or had completed a drug rehabilitation program.
       The juvenile court removed Daniel from the custody of both parents and ordered
that he remain in Irene’s custody at the January 2012 disposition hearing. The court
ordered family reunification services and monitored visits for mother. Mother was
ordered to participate in a parenting course, individual counseling, a full drug/alcohol
program with aftercare, to investigate an in-patient drug program with the Riverside


                                             4
Probation Department, to enroll in a 12-step program with a court card and a sponsor, and
to submit to random drug and alcohol testing.
       In July 2012, Jessica filed a section 388 petition seeking to adopt David after
serving as his legal guardian for one year.5 The CSW reported that Daniel’s caretaker
Irene, had expressed an interest in adopting Daniel. The CSW had lost touch with mother
from January until March 2012, when he learned that mother was incarcerated in
Riverside County for drug possession, with a release date of October 2012. Mother was
enrolled in GED and substance abuse classes offered in the jail, but had not enrolled in
counseling services which were also offered.
       Jessica’s section 388 petition was granted in September 2012, and a new section
366.26 hearing as to David was scheduled for the following January. With regard to
Daniel, the juvenile court found mother in partial compliance with the reunification plan,
and ordered reunification services to continue, with monitored visits twice per week once
mother was released from jail. In January 2013, Daniel’s section 366.22 permanency
review hearing was calendared for March 2013, and David’s section 366.26 hearing was
continued to the same date. In the meantime, the CSW reported no contact with mother
from the time of her release from custody until mid-December, at which time the CSW
referred mother to the Clare Foundation and to a DCFS representative to assist her in
obtaining Medi-Cal services.
       In March 2013, the juvenile court found that mother was not in compliance with
the case plan for Daniel, terminated reunification services, and scheduled a section
366.26 hearing regarding Daniel. The court continued David’s hearing to July, and later
to September 2013. Hearings for both minors ultimately went forward on October 28,
2013. Prior to the hearing, mother and father filed separate section 388 petitions. Father
alleged that he had completed a 16-week recovery program while incarcerated, had

5       “Any parent or other person having an interest in a child who is a dependent child
of the juvenile court . . . 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).)

                                             5
visited David approximately two or three times per week since he was released in
February 2013, and had participated in individual counseling. Mother alleged that in
September 2013, she completed a 26-week course in parenting and substance abuse
classes, with individual counseling. Hearing on the petitions went forward on October
28, 2013, the date scheduled for the section 366.26 hearings.
       Prior to the hearing, the Department reported that the parents had been visiting
David and Daniel twice per month and that the quality of visits was appropriate. David
was healthy and thriving in Jessica’s home, but due to some defiant and angry behavior,
David was in therapy. He was responding well to therapy and had began attending a
therapeutic preschool program in August 2013. Daniel was physically and emotionally
healthy, developing appropriately, and had formed a close bond with Irene, his only
caretaker since he was two months old. Home studies were completed and approved for
both homes. At the hearing, father testified that he had been incarcerated for 25 months,
beginning in January 2010. During that time, he participated in parenting and anger
management courses and two substance abuse programs in jail, although he was not able
to complete a second substance abuse program due to his release from custody. He
attached certificates of completion or progress letters, except for those that were not sent
to him. Two weeks after his release, he began substance abuse counseling, as well as
individual and group therapy in which he participated for six months. He had been sober
since three months prior to incarceration, with the exception of “maybe . . . two beers” in
the past six months. He was due to complete probation the following month. Father
claimed he attended N.A. meetings in Riverside, but he needed a new sponsor; he had
only a temporary sponsor in Santa Monica. When asked what step he was working on,
father testified that he skipped step 4, making amends, and did not know what step 3 was.
He explained that he had not really been working on the steps as he should have and had
really not participated in a 12-step program. The three-month programs in prison,
Behavioral Development and Celebrate Recovery, did not use the 12 steps. Father denied
that mother lived with him, although they were still in a relationship and mother’s



                                              6
address and his were the same. Father claimed that he stayed with his nephew at least
three nights per week.
       Father said he had regularly visited his sons at least twice a week for the past six
months and had never had unmonitored visits nor had his visits ever been liberalized.
Although David never lived with father, and Daniel lived with him for just two or three
months, father thought it would be detrimental to them to be taken away from father. He
testified that during visits David approached father and mother when he saw them, had a
pretty good time with them, and cried half or three-quarters of the time when visits
ended. Father testified that during visits Daniel called him “Daddy,” asked for his mom,
played, and cried about half the time when they left.
       Father was currently living in Moreno Valley with his mother and daughter, and
there was room for the boys there. Father was not employed at the time of the hearing
and had not investigated childcare for the boys. Since father’s mother had Parkinson’s
disease and his adult daughter worked, neither of them would be able to help. Father
thought that David was enrolled in Head Start and was in therapy for behavior issues, but
did not think that either of his sons had a medical issue. Father had not visited the Head
Start school, did not know the name of the teacher, David’s therapist, or either boy’s
doctor. He testified that he would seek to enroll David in the best Head Start program he
could find in his area.
       Mother testified that she was incarcerated for three months in 2012 for possession
of a controlled substance. She was released into a program with an ankle monitor, but
violated a term of her release in March 2012 and was again incarcerated until October 16,
2012. Mother then completed programs in parenting, drug counseling, and individual
counseling in July or August 2013.6 It took such a long time because she “had a really
bad drug problem.” After she completed the drug treatment program with Another
Chance, mother did not enroll in another program. Mother claimed she attended N.A.
meetings three or four times per week, spoke to her sponsor as often as she could, and

6     A certificate of completion from Another Chance Health Services is attached to
mother’s petition.

                                              7
worked on her 12 steps. Her sobriety date was October 16, 2012, and she was still on the
first step, but she was unsure what that step entailed, either belief in a power greater than
herself or admitting that she was powerless and that her life had become unmanageable.
She was not in therapy.
       While incarcerated mother did not visit with David because her sister would not
bring him to the jail. However she testified that she telephoned both boys. Mother did
not visit the minors often after her release, and did not see David until his birthday in
December 2012. She did visit them on holidays, however. Mother visited with David
two days before the hearing, and her last visit with Daniel was on his birthday, the
preceding week. They went to the park where mother pushed him on the swing and
played monsters with him and her niece. Mother’s visits have always been and continue
to be monitored by her sister, sister-in-law, or her mother’s aunt. The boys call her
Mommy Julia or Mommy.
       Mother testified that she lived alone in an apartment which had room for the boys.
Mother’s father had paid her first month’s rent. Although she still had a dating
relationship with father, he did not come to her apartment and she did not go to his house.
Instead, she saw him on their visits with the boys about two or three times per week and
sometimes they would go to the movies on the weekends.
       Mother was not employed, but seeking employment. She had not looked into
daycare. Mother thought David needed therapy because of his behavior and that Daniel
needed therapy because he was more active than David. Though mother also thought her
sister-in-law was a great caretaker for Daniel, she wanted a chance to do it herself.
       The trial court denied both section 388 petitions. The court found that neither
parent had made a showing of consistent visitation, that the children had good, loving
relationships with their caretakers with whom they had lived virtually their entire lives,
that the caretakers were willing to become adoptive parents, and that the strength and
quality of the parental relationship was far outweighed by the security and sense of
belonging the children had with their caretakers. After finding by clear and convincing
evidence that the children were adoptable and that it would be detrimental for the


                                              8
children to be returned to mother or father, the court terminated parental rights. The
court ordered the custody and control of the children transferred to the Department for
adoptive planning and placement, and ordered adoption as the permanent plan.
       Mother and father filed timely notices of appeal.
                                      DISCUSSION
I. Denial of mother’s section 388 petition
       Mother contends that the juvenile court abused its discretion in denying her
section 388 petition.
       In the juvenile court mother bore the burden of supporting her petition with proof
of changed circumstances. (In re Jasmon O. (1994) 8 Cal.4th 398, 415 (Jasmon O.);
§ 388.) The change in circumstances must be substantial. (In re Heraclio A. (1996) 42
Cal.App.4th 569, 577.) It was also mother’s burden to demonstrate that regaining
custody would promote David and Daniel’s best interests. (See In re Stephanie M.
(1994) 7 Cal.4th 295, 317 (Stephanie M.).) The burden is a heavy one, as mother was
required to overcome the rebuttable presumption created by the termination of
reunification services, that returning the children to her custody was not in their best
interests. (See In re Marilyn H. (1993) 5 Cal.4th 295, 302 (Marilyn H.).) On appeal it is
mother’s burden to show a clear abuse of discretion by the juvenile court. (Stephanie M.,
supra, at p. 318.) “The denial of a section 388 motion rarely merits reversal as an abuse
of discretion. [Citation.]” (In re Amber M. (2002) 103 Cal.App.4th 681, 685-686 (Amber
M.).) The court’s ruling will not be disturbed unless it “‘“has exceeded the limits of legal
discretion by making an arbitrary, capricious, or patently absurd determination
[citations].”’ [Citations.]” (Stephanie M., supra, at p. 318.)
       Mother contends that she established a substantial change of circumstances in that
one month prior to the hearing she had completed a 26-week course on parenting and
substance abuse with individual sessions, and that she was on the first step of a 12-step
program. Mother also points to her admission that she had a “really bad drug problem,”
and argues that this admission was a substantial change in circumstances because it was a



                                              9
“radical” departure from her mental state at the outset of the dependency proceedings,
when she denied having a drug problem or a history of substance abuse.
       Relying on authority that requires a juvenile court to liberally construe a section
388 petition, mother suggests that the court was required to believe her testimony that she
had been sober for a year, and to construe that period as sufficiently sustained changed
circumstances to meet her burden. (See, e.g., Jasmon O., supra, 8 Cal.4th at p. 415; In re
Angel B. (2002) 97 Cal.App.4th 454, 461; Cal. Rules of Court, rule 5.570.) As these
authorities make clear, however, liberal construction of the petition is a pleading rule,
applicable to the court’s decision whether to grant a hearing. As the juvenile court did in
fact grant a hearing on mother’s petition, the argument is not applicable here.
       We reject mother’s suggestion that the juvenile court was required to liberally
construe the evidence in her favor. We review the evidence in the light most favorable to
the juvenile court’s orders. (See In re Autumn H. (1994) 27 Cal.App.4th 567, 576
(Autumn H.).) In determining whether a parent has met her burden, the juvenile court
may consider the entire factual and procedural history of the case. (See In re Justice P.
(2004) 123 Cal.App.4th 181, 189.) It is the exclusive province of the juvenile court to
weigh the evidence, determine the credibility of witnesses, and to resolve conflicts in the
evidence; and we may not reject those determinations on appeal. (See In re Casey D.
(1999) 70 Cal.App.4th 38, 52-53 (Casey D.).)
       Mother’s drug related arrests and convictions date from the year 2000. Her
claimed date of sobriety is October 16, 2012, giving her a substance abuse history lasting
12 years. Even if we were to assume that the juvenile court believed mother’s
uncorroborated claim to have changed, to be sober, or to be diligently participating in a
12-step program, we would find no abuse of discretion in a finding that mother had not
met her burden to show changed circumstances. After 12 years of substance abuse, one
year of sobriety and working on the first step in a 12-step program are insufficient to
prove substantially changed circumstances. At most they show changing circumstances.
(Cf. Amber M., supra, 103 Cal.App.4th at p. 686 [372 days out of 17 years, and step three
of 12-step program]; In re Cliffton B. (2000) 81 Cal.App.4th 415, 423-424 (Cliffton B.)


                                             10
[seven months of clean tests]; Casey D., supra, 70 Cal.App.4th at pp. 47-48 [recently
sober; 12-step program not yet begun]; In re Kimberly F. (1997) 56 Cal.App.4th 519,
531, fn. 9 (Kimberly F.) [sober 120 days].)
       Mother suggests we should reject the reasoning of such cases because a recovering
substance abuser is always in recovery, meaning her circumstances can always be
considered as changing; thus, she cannot meet a legal standard of changed circumstances.
She argues that instead, the inquiry should be how radically she has changed her own
mental attitude. Mother has cited no authority setting forth a rigid legal standard for
changed circumstances, and we are aware of none. Whether mother met her burden
remains a discretionary exercise, and the standard of review remains whether that
exercise of discretion was arbitrary, capricious, or patently absurd. (Stephanie M., supra,
7 Cal.4th at p. 318.)
       In any event, no matter how much mother’s circumstances may have changed, she
was not entitled to a modified order unless she also demonstrated that the change would
be in the children’s best interests. (Stephanie M., supra, 7 Cal.4th at p. 318.) Mother
claims to have met her burden of proof with evidence in each of the following categories:
“(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.” (Kimberly
F., supra, 56 Cal.App.4th at p. 532.) 7
       With regard to the first and third factors, mother concedes that her substance abuse
was a serious problem, but she argues she has maintained her sobriety and “successfully
addressed the issue which led to dependency,” at least to the degree that “further
reunification services were warranted.” Disregarding all unfavorable evidence, mother

7      Mother contends that the juvenile court’s discretion was circumscribed by the
Kimberly F. factors; however, the opinion makes clear that the factors are guidelines only
and that the juvenile court is not limited or bound by them. (Kimberly F., supra, 56
Cal.App.4th at p. 532.)


                                              11
cites only her testimony in support of her position. For example, at the disposition
hearing for Daniel in January 2012, the juvenile court ordered mother to participate in, a
full drug/alcohol program with aftercare, to investigate an inpatient drug program with
the Riverside Probation Department, to enroll in a 12-step program with a court card and
a sponsor, and to submit to random drug and alcohol testing. Mother submitted only a
certificate of completion from Another Chance Health Services, without any information
that the program complied with the court’s order.8 Mother submitted no reports
regarding random testing, no court card or other evidence of when and where she
attended meetings of her 12-step program, and no evidence of any attempt to investigate
an inpatient drug program. As mother has not shown that she complied with any of the
court’s orders we cannot agree with her conclusion that she “successfully addressed the
issue which led to dependency.”
       With regard to the strength of relative bonds, the second factor, mother argues she
was sober during her monitored visits, cites the CSW’s assessment that the visits were
“appropriate,” as well as her testimony that the boys knew she was their mother and
called her “Mommy” or “Mommy Julia.” Mother submitted no testimony from monitors
or other witnesses to her visits, no psychological report or bonding study, and she barely
described the visits herself. Moreover, in another section of her brief, mother concedes
that “the record is utterly devoid of any discussion regarding the nature of the contact
between the boys and their parents,” and that there was “scant” evidence that she acted in
a parental capacity during visits.
       Mother has cited little evidence of the boys’ bonds with their caretakers and she
does not undertake a comparison. Instead, she simply argues that David’s aggressive
behavior had strained his bond with Jessica. Mother also cites her own opinion that
Daniel should be in therapy because he is more active than David, but says nothing of the


8     Mother had enrolled in an aftercare program the year before, and as of February
2011 she was in compliance with the program, was receiving individual and drug
counseling, and had tested negative in three random drug tests, however she submitted no
evidence of completion of that program.

                                             12
boys’ attachments to their caretakers. On the other hand, mother concedes respondent’s
point that the boys have been raised from infancy by their aunts with whom they have
secure relationships. Indeed, as respondent also observed, the CSW reported in
September 2012 that Jessica had provided David with a loving, nurturing home. In
January 2013, the CSW reported that David identified his aunt as his mother and his
aunt’s partner as his father. Jessica “indicated that David was essentially her son, and
was treated no differently than her [two] biological children.” In 2012, the CSW reported
that Irene, the adoptive mother of Daniel’s half-sister, was devoted full time to Daniel’s
care, was attentive to his needs, and very interested in adopting him. The bond between
them continued to grow closer, as they did “just about everything together.” In sum,
mother failed to produce sufficient evidence to overcome the rebuttable presumption that
granting the petition would not be in the boys’ best interests. (See Marilyn H., supra, 5
Cal.4th at p. 302.)
       Nonetheless, mother contends that providing her with further reunification
services would have no “downside” because she would most likely continue to have a
relationship with the boys as they would remain in the custody of relatives, and it would
make her a better mother. Mother concludes that there would be “absolutely no threat to
the children’s security or stability.” We disagree. Security and stability result from
having a permanent home and a sense of belonging to a family. (See In re Amanda D.
(1997) 55 Cal.App.4th 813, 821; Autumn H., supra, 27 Cal.App.4th at p. 575.) Mother’s
petition was filed on the eve of freeing the children for adoption. She had been given
nearly two years to become a better mother to Daniel and nearly three years to become a
better mother to David. “While this may not seem a long period of time to an adult, it
can be a lifetime to a young child. Childhood does not wait for the parent to become
adequate. [Citation.]” (Marilyn H., supra, 5 Cal.4th at p. 310.) We conclude that the
juvenile court did not abuse its discretion in denying the petition.
II. Termination of mother’s parental rights
       Mother contends that the juvenile court erred in terminating her parental rights
after refusing to apply the benefit exception of section 366.26, subdivision (c)(1)(B)(i).


                                             13
The juvenile court found that mother had not “made any kind of showing that [she had]
had consistent visitation with the children such that it would cause the court to reconsider
the termination of parental rights.”
       The juvenile court had terminated reunification services and scheduled a section
366.26 hearing as to David in October 2010, and as to Daniel in March 2013. Each order
gave rise to a rebuttable presumption of mother’s parental unfitness. (Marilyn H., supra,
5 Cal.4th at pp. 309-310.) Because mother did not challenge those orders, termination of
parental rights was “relatively automatic” once the court found the children adoptable.
(In re Zacharia D. (1993) 6 Cal.4th 435, 447.) As the juvenile court found by clear and
convincing evidence that it was likely the children would be adopted, the court was
required to terminate mother’s parental rights, unless mother established that termination
would be detrimental to the children because she had maintained regular visitation and
contact with them and they would benefit from a continuing relationship. (See § 366.26,
subd. (c)(1)(B)(i).) Thus it was mother’s burden to establish the exception and to prove
that termination of her parental rights would be detrimental to the children. (In re Valerie
A. (2007) 152 Cal.App.4th 987, 997.) Moreover, because the children were very young
and mother had not progressed beyond supervised visits, overcoming the presumption in
favor of adoption required mother to show exceptional circumstances. (Casey D., supra,
70 Cal.App.4th at p. 51.)
       Mother contends that a challenge to a juvenile court’s order terminating parental
rights and refusing to apply a statutory exception is reviewed for substantial evidence as
stated in Autumn H., supra, 27 Cal.App.4th at page 576. Mother then argues that the
court’s ruling was error under that standard because substantial evidence supported the
application of the exception. Mother has misstated the test; it is not whether substantial
evidence supported application of the exception, but whether there is substantial evidence
to support the finding that the exception does not apply. (In re L. Y. L. (2002) 101
Cal.App.4th 942, 947.) “[We] affirm the order if supported by substantial evidence even
if other evidence supports a contrary conclusion. [Citation.]” (Ibid.) Thus, “a
[substantial-evidence] challenge to a juvenile court’s finding that there is no beneficial


                                             14
[parental] relationship amounts to a contention that the ‘undisputed facts lead to only one
conclusion.’ [Citation.]” (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314 (Bailey J.),
quoting In re I.W. (2009) 180 Cal.App.4th 1517, 1529.)
       The California Supreme Court has held that dependency orders are reviewed for
abuse of discretion. (Stephanie M., supra, 7 Cal.4th at p. 318.) Some appellate courts
apply a substantial evidence test and some review for abuse of discretion; still other
courts have applied a kind of hybrid standard, applying both as appropriate. (See, e.g.,
Bailey J., supra, 189 Cal.App.4th at pp. 1314-1316.) Under the hybrid standard, once the
parent shows that undisputed substantial evidence compelled the court to find a beneficial
parental relationship, we review the juvenile court’s “quintessentially discretionary
determination” that termination of the relationship would not be detrimental to the
children. (Id. at pp. 1314-1316.) The juvenile court’ s order is presumed to be correct,
and it is mother’s burden to show error. (In re S.C. (2006) 138 Cal.App.4th 396, 408.)
As mother contends only that substantial evidence supported application of the exception,
not that undisputed evidence compelled its application, she has not met her burden.
       Moreover, mother has not shown that she satisfied even the “threshold prong”
required for the benefit exception to apply: that she maintained regular visitation and
contact with the children. (In re Zeth S. (2003) 31 Cal.4th 396, 412, fn. 9.) Mother has
summarized several individual visits and periods of regular or semi-regular visitation, but
does not dispute respondent’s observation that her visits with David were inconsistent
during the first few months after David’s detention in December 2009. Mother
acknowledges that her visits, although weekly in January and February 2010, were only
“as often as could be arranged” in March 2010. Our review of the record indicates that
visits were regular for another month or so, were “more or less consistent” until Daniel
was born in October 2010, and then stopped, other than Christmas and another day or
two, for almost two years. Mother was incarcerated in January 2012, released for a short
time, reincarcerated in March, and released on October 16, 2012; but she did not see
David until his birthday in December 2012, and she admitted that she “didn’t really visit
often.” After several visits with David during January 2013, mother had approximately


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four more visits up to mid-July 2013. Mother visited Daniel sporadically: about once per
month from February 2011 until August 2011, and then not at all until October 2011.
Mother claimed she did not see David while she was incarcerated because her sister
would not bring him to the jail, but that she telephoned the boys. Mother did not say why
she did not have visits from Daniel or how often she telephoned, and she provided no
corroboration, such as the testimony of caretakers who passed the telephone to the boys.9
In July 2013, the Department reported that during the previous four months, mother had
had visits with Daniel twice per month. Mother has shown, at most, that the record
contains evidence of semi-regular and semi-consistent visitation, not sufficient evidence
to compel a finding in mother’s favor.
       Nor did mother establish the second prong of the exception. It was her burden to
show that terminating her parental rights would be detrimental to the children because
they would benefit from continuing their relationship with her. (See § 366.26, subd.
(c)(1)(B)(i).) “Interaction between [a] natural parent and child will always confer some
incidental benefit to the child.” (Autumn H., supra, 27 Cal.App.4th at p. 575.) Mother
was required to show a relationship in which she occupied a “parental role” and a
relationship in which her children displayed a “substantial, positive emotional
attachment” to her. (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108-1109.)
Mother concedes that there was “scant” evidence that she acted in a parental capacity
during visits and that “the record is utterly devoid of any discussion regarding the nature
of the contact between the boys and their parents.” She nevertheless argues that she met
her burden with the following evidence: she acted appropriately during visits and did not
appear to be under the influence; she brought milk and diapers to visits with Daniel when
he was an infant; she and father took turns holding him while the other parent played with
David; the boys called her Mommy Julia or Mommy; and father testified that David
appeared to be happy when he and mother visited and that both boys sometimes cried




9      Both caretakers were in the courtroom during the hearing.

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when they left.10 Mother also notes that “the record contains absolutely no evidence
whatsoever that [mother’s] relationship with her children was harmful.”
       Relying on In re S.B. (2008) 164 Cal.App.4th 289 (S.B.), mother argues that she
was not required to show that the children’s “primary attachment” was to mother, but just
that the children had a “substantial, positive emotional attachment” to her. (Id. at p. 299.)
Mother failed to establish either a primary attachment or a substantial emotional
attachment. It is not enough to produce evidence of an “emotional bond” accompanied
by pleasant visits. (In re Andrea R., supra, 75 Cal.App.4th at p. 1108.) Even frequent
and loving contact during monitored visits that amount to little more than play dates with
a loving adult is insufficient to show the requisite beneficial parental relationship.
(Bailey J., supra, 189 Cal.App.4th at p. 1316; see also Cliffton B., supra, 81 Cal.App.4th
at p. 424.) And the absence of evidence that visits were detrimental does not establish
that the visits were beneficial. (See Bailey J., at p. 1316.)
       A comparison to the facts of S.B. serves to highlight the deficiency in mother’s
evidence. In that case, the substantial, positive emotional attachment between parent and
child existed prior to the onset of dependency proceedings and the attachment continued
to exist until the section 366.26 hearing. (S.B., supra, 164 Cal.App.4th at pp. 300-301.)
In addition, the parent in S.B. established the following: the father had been his child’s
primary caretaker for three years and thus had occupied a parental role in their
relationship; as soon as the child was removed from his custody, the father immediately
“started services, maintained his sobriety, sought medical and psychological services, and
maintained consistent and regular visitation”; he complied with “‘every aspect’ of his
case plan”; the child continued to display a strong attachment to her father and was


10      Mother exaggerates father’s testimony regarding visits, and concludes that the
children would be “devastated” by a termination of parental rights. She claims the boys
expressed joy upon seeing her, but father testified that David merely approached them
and had a pretty good time, and that Daniel played and asked for his mom. Father
testified that the boys cried about half the time or three-quarters of the time when they
left, but gave no other explanation of the circumstances under which they cried or did not
cry.

                                              17
unhappy when visits ended; and the father consistently put his child’s needs and safety
before his own. (S.B., supra, at p. 298; see also In re C.F. (2011) 193 Cal.App.4th 549,
558-559.)
       Here, as David was detained at birth, he had no substantial preexisting attachment
with mother, and although mother was Daniel’s caretaker for two months, this was
insufficient to find a preexisting parental relationship. (See Bailey J., supra, 189
Cal.App.4th at p. 1316, fn. 3.) And unlike the father in S.B., mother failed to comply
with the case plan, failed to consistently and regularly visit the boys throughout the
dependency period, and for nearly two years she placed her addiction before her
children’s needs. Undisputed evidence did not establish that mother had a beneficial
parental relationship with David and Daniel.
       Once a parent establishes a beneficial parental relationship, the juvenile court must
balance the strength and quality of the relationship against the security and sense of
belonging that the prospective adoptive parents would confer. (See Cliffton B., supra, 81
Cal.App.4th at pp. 423-424; Autumn H., supra, 27 Cal.App.4th at p. 575; § 366.26, subd.
(c)(1)(B)(i).) The court’s determination is reviewed for abuse of discretion. (Bailey J.,
supra, 189 Cal.App.4th at pp. 1315-1316.) Despite mother’s failure to establish a
beneficial parental relationship, the juvenile court did engage in such balancing, and
found that providing the children with security and a sense of belonging that the adoptive
parents would provide, far outweighed the strength and quality of the natural parents’
relationship with the children. The court also found that the children had good, loving
relationships with the caretakers they had been with virtually their entire lives and who
were willing and desired to become adoptive parents. As mother does not dispute this
latter finding and did not establish a beneficial parental relationship, we find no abuse of
discretion.




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                                    DISPOSITION
      The juvenile court’s order is affirmed as to mother, and father’s appeal is
dismissed.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                                ____________________________, J.
                                                CHAVEZ

We concur:



__________________________, P. J.
BOREN



__________________________, J.
ASHMANN-GERST




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