Filed 8/18/20 In re H.F. CA2/6
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                          SECOND APPELLATE DISTRICT

                                           DIVISION SIX


 In re H.F., a Person Coming                                      2d Juv. No. B303093
 Under the Juvenile Court                                       (Super. Ct. No. J072084)
 Law.                                                              (Ventura County)


 VENTURA COUNTY HUMAN
 SERVICES AGENCY,

      Petitioner and Respondent,

 v.

 S.F.,

      Objector and Appellant.



     S.F. (mother) appeals from orders of the trial court denying
her Request to Change Court Order (Welf. & Inst. Code, § 388)1
without an evidentiary hearing, and terminating her parental


        All future statutory references are to the Welfare and
          1

Institutions Code.
rights to her biological son, H.F. (§366.26.) She contends the
trial court erred in denying the section 388 petition without an
evidentiary hearing because her petition established a prima
facie case of changed circumstances. She contends the trial court
erred in terminating her parental rights because the “beneficial
relationship” exception applies to her relationship with H.F.
(§ 366.26, subd. (c)(1)(B)(i).) We affirm.
                                FACTS
       H.F. was born in November 2018. About five months later,
in April 2019, he was taken into protective custody by
respondent, the Ventura County Human Services Agency (HSA).
Mother and H.F. were told to leave an apartment in Thousand
Oaks where they had been staying with a friend. The friend
called police in the afternoon of April 5, 2019 because mother was
making a disturbance outside. When a sheriff’s deputy arrived at
about 5:30 p.m., mother was holding her infant son while yelling
and trying to get back in to the apartment. The deputy assisted
her in recovering her belongings. Mother appeared to be
intoxicated. She told the deputy that she needed to feed the baby
but did not have a bottle. Mother also did not have a crib, a car
seat or other essential supplies for the baby. Although mother
had not committed a crime, the deputy was unwilling to leave
mother on the street or transport her to a shelter because she
was intoxicated, behaving erratically and seemed unable to
adequately care for the baby.
       An HSA social worker arrived and tried to get mother to
explain the situation. The social worker called friends and family
members identified by mother, but could not find anyone to assist
her. As they talked, the social worker became convinced mother
was under the influence of alcohol. She smelled of alcohol and




                                2
“was not making any sense during the interview.” The social
worker believed mother was becoming increasingly paranoid and
belligerent toward the sheriff’s deputy.
       Mother stated that she was planning to spend the night in
a motel. She could not say when she last fed the baby. She had
him tightly wrapped in blankets that were also covering the
baby’s mouth and nose. Both the social worker and the deputy
sheriff were concerned about the baby’s ability to breathe.
Mother told the social worker that she had “mental health issues”
for which she took medication. She also gave the social worker
conflicting information about whether she had taken medication
that day. The social worker reported that mother was initially
able to answer questions but, “after about five minutes she
became paranoid and did not make sense when answering any
questions. She was asked one thing and would answer something
totally different. She would stop during the conversation with
this social worker to belittle or insult the police.”
       After the social worker took H.F. into emergency custody,
mother continued to argue with the sheriff’s deputies. She
refused to sign any documents relating to the detention and
instead ran away into the night. H.F. was placed with his
maternal grandmother. He has remained in her custody
throughout this proceeding and she is his prospective adoptive
parent, along with a maternal aunt.
       Detention Hearing.
       At the detention hearing on April 10, 2019, respondent
informed the juvenile court that mother has four other biological
children. The two older children live with their biological father
and have virtually no relationship with mother. Both of those
children were the subject of numerous prior dependency referrals,




                                3
each of which related to mother’s substance abuse. Mother’s
third child was declared a dependent of the juvenile court in 2011
when he was 12 days old, “due to the mother’s substance abuse,
issues of domestic dispute and caretaker absence.”2 Mother failed
to engage with the family reunification services she was offered.
Reunification services were terminated and the child was placed
with his maternal grandmother, who became his legal guardian.
       In November 2013, mother’s fourth child was removed from
her custody when the child was about seven months old, “due to
mother’s substance abuse.” Although mother was offered family
maintenance services, she was bypassed for reunification services
about one year later. Mother was found to be intoxicated in her
home while she was caring for the child. She was arrested for
“Lewd Practices in Presence of Minor and Violation of Felony
Probation.” The child was placed with her maternal
grandmother, who is now her legal guardian.
       Mother has prior convictions of driving under the influence
of alcohol and a long history of alcohol abuse. She has had
numerous contacts with law enforcement arising out of her
alcohol use and domestic disputes with multiple partners,
including the biological fathers of her children. Mother was in
inpatient substance abuse treatment when she gave birth to her
fourth child; she lost custody of that child after relapsing.
       The trial court ordered H.F. detained and granted mother
supervised visitation. It set the jurisdiction and disposition


      2 Reports from that dependency proceeding indicate that
the infant was taken into protective custody after mother was
arrested for felony child endangerment and public intoxication.
The infant was being transported with mother in a car that had
no car seat, while the driver was under the influence of alcohol.



                                 4
hearing for May 8, 2019. The hearing date was later continued to
June 4, 2019.
       Between the detention hearing and the jurisdiction and
disposition hearing, mother consistently attended supervised
visits with H.F. during which she behaved appropriately. She
had numerous conversations with the social worker regarding her
history of substance abuse, domestic violence and mental health
challenges. Mother informed the social worker that she had been
diagnosed as bipolar and ADHD and said she was taking
prescription medication for both conditions.
       Mother lived in Palmdale, with her father. She was
admitted into an inpatient substance abuse treatment program
in Los Angeles County but never actually entered the program.
Instead, she entered a different outpatient recovery program.
Mother attended early recovery skills classes and a relapse
prevention group in May. On two occasions, she missed sessions
she was expected to attend. Mother also attended AA/NA
meetings in April and May and obtained a sponsor. The sponsor
indicated they had had one meeting before the jurisdiction and
disposition hearing. Mother had some difficulty complying with
the drug and alcohol testing requirement because of the long
distance between her home in Palmdale and the testing site. Her
testing dates also sometimes conflicted with supervised visits
with H.F. or with court dates. On May 1, 2019, mother tested
positive for marijuana and methamphetamine.
       Mother has a tumultuous relationship with H.F.’s biological
father. The jurisdiction and disposition report documented six
occasions between October 2017 and April 2019 in which law
enforcement responded to verbal arguments and physical
altercations between the couple. On each of these occasions, the




                                5
responding officers concluded one or both of the parents had been
drinking alcohol.
      Jurisdiction and Disposition Hearing.
      At the jurisdiction and disposition hearing, mother testified
that she did not drink alcohol on the night H.F. was taken into
protective custody. She testified that she and the baby got
stranded in Thousand Oaks because she missed the last train
back to Palmdale. Her friend had not kicked her out of the
apartment where they had been staying; she went outside
because the friend had to leave to do an errand. Mother had
money to stay in a motel that night. She also had plenty of
supplies for the baby, including a bottle to feed him with. She did
not feed the baby while the sheriff’s deputies and social worker
were there because he was sleeping and she didn’t want to wake
him up. Mother acknowledged her history of alcohol abuse,
treatment and relapse. She was in inpatient treatment in 2011,
2012 and 2016. At the time of the hearing, mother was enrolled
in an outpatient treatment program and was seeing an individual
therapist.
      Respondent recommended that family reunification
services be bypassed for mother. The recommendation was based
on mother’s failure to reunify with two other biological children,
her failure to resolve her substance abuse, domestic violence and
mental health issues, her continued use of alcohol after
treatment, her recent positive test for marijuana and her failure
to participate in services in this case. Respondent noted that
mother consistently minimized her alcohol use and lied about
continuing her relationship with H.F.’s father. Her failure to
address any of these issues meant that H.F. could not be safe in
her custody.




                                6
      The trial court found mother’s testimony to be not credible.
It sustained the petition based on mother’s alcohol abuse,
“mental health issues” and “ongoing conflict” with H.F.’s father.
Although the trial court acknowledged mother’s recent attempts
to engage services for her substance abuse and mental health
problems, it concluded these efforts were “too little too late.”
Because mother took “very little accountability” for her alcohol
and mental health issues, the trial court concluded reunification
services would not “be very helpful for her.” It found by clear and
convincing evidence that reunification services should be
bypassed for mother based on section 361.5, subdivisions (b)(10)
and (b)(13). The trial court set the permanency planning hearing
under section 366.26 for September 25. The hearing was later
continued to October 23, 2019.
      Section 388 Request to Change Court Order.
      Mother filed a section 388 Request to Change Court Order,
asking the trial court to order family reunification services, “stop”
the section 366.26 hearing and increase mother’s visitation.
Mother contended that circumstances had changed because she
had enrolled in an out-patient rehabilitation program, was active
in AA, and had begun individual therapy to address her mental
health issues. Mother’s declaration asserted that, in an effort to
demonstrate self-sufficiency, she procured “a permanent
residence and stable employment.” She did not specify where or
with whom she was living or identify her employer.
      Mother stated that she visited with H.F. frequently and
they had developed a loving bond. She also stated that, in early
May, she enrolled in an outpatient rehabilitation program and
was “consistent with my classes up until late June 2019, when I
had to relocate and was unable to continue at this program.”




                                  7
Mother also “had” to discontinue her individual therapy after
relocating. She stated that she had “participated” in AA/NA
group meetings and was able to find a sponsor. Mother did not
say whether she had continued in AA/NA or met with her sponsor
after she moved. She stated that her “goal [was] to find new
programs around my area to continue participation and enable
me to be the best parent that I know I can be.” Mother’s
declaration included no information concerning efforts she had
made to access treatment or counseling near her new home.
       Mother attached letters, attendance cards and client
service logs to her section 388 petition, to demonstrate her
participation in treatment. These documents showed that she
participated in various forms of treatment in April and May
2019. There is no record of mother’s participation after May 22,
2019.
       The trial court found that mother’s petition did not make a
prima facie showing of changed circumstances that would justify
changing its prior orders. First, most of the information
regarding mother’s participation in treatment was not new
because it predated the June 4, 2019 hearing on jurisdiction and
disposition. Second, the fact that mother had a job and a more
stable residence “is not a sufficient change of circumstance” given
mother’s chronic substance abuse issues. The trial court declined
an evidentiary hearing because the offer of proof, even if
supported by evidence, would not justify changing the order to
bypass reunification services.
       Section 366.26 Hearing.
       In its report for the section 366.26 hearing, respondent
noted that, since the jurisdiction and disposition hearing in early
June, mother had had eight contacts with law enforcement.




                                8
Seven of these incidents occurred after mother initiated contact
with H.F.’s biological father. In six of the incidents, the
responding officer noted that mother seemed intoxicated, had
rapid or slurred speech, was behaving irrationally, or was
“rambling,” “incoherent” or “manic.”
      Respondent reported that mother had attended most of her
supervised visits with H.F. Although she was generally loving
and caring toward the baby, she spent a great deal of time
showing pictures of him to the person supervising the visit. On a
couple of occasions, mother argued with the visit supervisor. Her
comments and behavior made a male supervisor uncomfortable,
so a different person was assigned to monitor her visits. The
baby seemed to recognize mother when she entered the room.
They appeared to have a loving connection. H.F. did not show
emotion when the visits ended or when mother missed a visit.
      The report concluded that mother continues to struggle
with alcohol and unresolved mental health concerns. She made
no attempt to resolve these issues. Instead, she continued to
drink and have frequent contact with law enforcement related to
her alcohol consumption. The report stated that mother is
“combative,” makes threats and blames others for her
circumstances. She had not admitted any of her problems or
accepted responsibility for her actions. She continued to contact
H.F.’s father despite the restraining orders and their long history
of domestic violence. Mother did not provide respondent with any
evidence that she participating in treatment or counseling.
Respondent concluded that her use of alcohol and her erratic
behavior would pose a risk to H.F. if he were to be returned to
her care. Respondent also noted that the termination of parental
rights would not be detrimental to H.F. because “he does not




                                9
appear to have a significant parental bond with . . . mother
. . . that outweighs the benefits he will receive in a permanent
home.” Following respondent’s recommendation, the trial court
found that H.F. is adoptable and terminated mother’s parental
rights.
                            DISCUSSION
        Mother contends the trial court erred and violated her right
to due process when it denied her section 388 petition without an
evidentiary hearing. She further contends the trial court erred
when it terminated her parental rights despite her beneficial
relationship with H.F.
        Section 388 Petition. To prevail on a section 388 petition,
the moving party must establish that new evidence or changed
circumstances exist so that the proposed change in the court’s
order would promote the best interests of the child. (§388, subds.
(a), (b); In re Marilyn H. (1993) 5 Cal.4th 295, 309-310.) If the
liberally construed allegations of the petition do not make a
prima facie showing of both elements, the petition may be denied
without a hearing. (In re Zachary G. (1999) 77 Cal.App.4th 799,
807-808.) We review the trial court’s denial of an evidentiary
hearing for abuse of discretion. (In re Marcelo B. (2012) 209
Cal.App.4th 635, 641-642; In re Anthony W. (2001) 87
Cal.App.4th 246, 250.)
        Even liberally construed, mother’s section 388 petition did
not establish a prima facie case that her circumstances had
changed so that modifying the previous orders would be in H.F.’s
best interests. The letters and attendance records attached to
her declaration were the same documents presented to the court
at the jurisdiction and disposition hearing. They showed mother
participated in a rehabilitation program, group meetings and




                                10
individual therapy in April and May 2019. But mother admitted
that she left the program and her counselor when she moved, and
that she had not yet accessed new treatment services. She did
not mention whether she continued to attend AA meetings or to
meet with her sponsor. Evidence that a parent has achieved a
brief period of sobriety, or is in the midst of addressing a chronic
substance abuse or mental health problem, “though
commendable, is not a substantial change of circumstances.” (In
re Ernesto R. (2014) 230 Cal.App.4th 219, 223.) The trial court
did not abuse its discretion when it summarily denied mother’s
section 388 petition.
       Termination of Parental Rights. If reunification efforts fail
and the trial court finds that a child is adoptable, the trial court
must terminate parental rights. (§ 366.26, subd. (c)(1).) One
exception to this rule allows the court avoid termination if it
“finds a compelling reason for determining that termination
would be detrimental to the child [because] (i) The parents have
maintained regular visitation and contact with the child and the
child would benefit from continuing the relationship.” (Id., subd.
(c)(1)(B)(i).) Mother contends the trial court erred when it found
this exception did not apply to her relationship with H.F.
       We review the trial court’s finding for substantial evidence.
(In re Autumn H. (1994) 27 Cal.App.4th 567, 576-577.) In
determining whether this exception applies, the trial court
considers “(1) the age of the child, (2) the portion of the child’s life
spent in the parent’s custody, (3) the positive or negative effect of
interaction between the parent and the child, and (4) the child’s
particular needs.” (In re Angel B. (2002) 97 Cal.App.4th 454,
467.) “We recognize that interaction between parent and child
will always confer some incidental benefit to the child. [Citation.]




                                  11
To meet the burden of proof, the parent must show more than
frequent and loving contact, an emotional bond with the child, or
pleasant visits. [Citation.] The parent must demonstrate more
than incidental benefit to the child. In order to overcome the
statutory preference for adoption, the parent must prove he or
she occupies a parental role in the child’s life, resulting in a
significant, positive emotional attachment of the child to the
parent.” (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.)
       Substantial evidence supports the trial court’s
determination that the beneficial relationship exception did not
apply. H.F. was only five months old when he was removed from
mother’s custody; he has lived in the same home with his
maternal grandmother, aunt and half-siblings ever since. His
caregivers love and care for H.F. and have provided him with a
safe and stable home. H.F. smiles and laughs when he is with
his caregivers. He seeks them out for comfort and assistance.
       Mother attended most of her supervised visits with H.F.
but the record does not show that she occupies a parental role in
his life. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) Her
visits with H.F. were generally pleasant and brief. Mother
“usually fed the child, changed his diaper, sang to the child and
was attentive to him during visits.” She read to him, played
music off her phone for him, and encouraged “tummy time.”
H.F.’s social worker reported that he would smile and coo when
mother entered the room to start a visit. He did not show any
emotion when the visits ended and had no “adverse emotional
effects” when mother missed a visit.
       The beneficial relationship exception applies where the
parent and child have “a substantial, positive emotional
attachment such that the child would be greatly harmed” by its




                               12
termination. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
There is no substantial evidence mother forged such a
relationship with H.F. Although he appears to have enjoyed his
visits with her, H.F. had no difficulty separating from mother at
the visit’s end and had no reaction if she missed a visit.
Moreover, there is no evidence he would be harmed by
termination of the relationship. As an infant, H.F.’s primary
needs are for safety and stability. These needs are amply met by
his caregivers. Mother, by contrast, has demonstrated no ability
to provide either safety or stability. She continues to abuse
alcohol and has not stabilized her mental health. As a
consequence, she remains emotionally volatile and has frequent
contact with law enforcement. Mother also maintains her
relationship with H.F.’s biological father, despite their violent
history. Under these circumstances, the trial court correctly
found there was no beneficial relationship within the meaning of
section 366.26, subdivision (c)(1)(B)(i).
                          CONCLUSION
       The order denying mother’s section 388 petition and the
order terminating parental rights are affirmed.
       NOT TO BE PUBLISHED.



                                               YEGAN, J.

We concur:


             GILBERT, P. J.


             PERREN, J.



                               13
                      Tari L. Cody, Judge

               Superior Court County of Ventura

                   ______________________________

     Vincent W. Davis, for Obejctor and Appellant.

      Leroy Smith, County Counsel, Joseph J. Randazzo,
Assistant County Counsel, for Petitioner and Respondent.
