Filed 3/19/14 In re Destiny E. CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


In re DESTINY E., a Person Coming                                    B249891
Under the Juvenile Court Law.

LOS ANGELES COUNTY                                                   (Los Angeles County
DEPARTMENT OF CHILDREN AND                                           Super. Ct. No. CK84000)
FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

LISA C.,

         Defendant and Appellant.



         APPEAL from orders of the Superior Court of Los Angeles County.
Amy Pellman, Referee. Affirmed.

         William Hook, under appointment by the Court of Appeal, for Defendant and
Appellant.

         John F. Krattli, County Counsel, James M. Ownes, Assistant County Counsel,
Jessica S. Mitchell, Deputy County Counsel for Respondent.


                                       __________________________
        Lisa C. (mother) appeals from the orders denying her Welfare and Institutions
Code section 388 petition and terminating her parental rights.1 She contends: (1) denial
of her section 388 petition was an abuse of discretion; (2) the findings that Destiny was
adoptable and that the exception to termination of parental rights did not apply were not
supported by substantial evidence. We affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND

        Destiny was two months old on September 5, 2010, when she came to the
attention of the Department of Children and Family Services (DCFS) as the result of a
referral alleging that mother left Destiny with maternal grandmother, mother’s
whereabouts were unknown and maternal grandmother had physically abused Destiny by
cutting Destiny’s fingernails without regard to the fact that her fingers were bleeding and
she was crying. By the time an investigating social worker arrived at maternal
grandmother’s apartment later that day, mother had picked up Destiny and maternal
grandmother did not know where they were; she did not have an address for mother, who
was absent without leave (AWOL) from a juvenile probation placement.2 When the
social worker returned two days later, on September 7, Destiny was at the apartment.
Since mother’s whereabouts were unknown, Destiny was detained.
        On November 30, mother submitted to juvenile court jurisdiction. As sustained,
the second amended section 300 petition alleged:
        Count B-4: Mother “has a history of substance abuse and is a current abuser of
        marijuana, which renders the mother incapable of providing the child with regular
        care and supervision. The mother’s abuse of illicit drugs endangers the child’s


1       All future undesignated statutory references are to the Welfare and Institutions
Code.

2      Mother was 14 years old in February 2007 when she was first declared a ward of
the court within the meaning of section 602. In April 2010, mother was 17 years old
when she was arrested on firearm charges and returned to placement. In June 2010,
mother was declared AWOL and a bench warrant was issued. Destiny was born in July
2010.

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       physical and emotional health and safety and places the child at substantial risk of
       serious physical harm.”

       Count B-5: Mother “has a criminal history of convictions of possession of a
       concealable firearm and force with a deadly weapon – firearm on person, and is
       currently incarcerated in juvenile hall which limits her ability to care for the
       minor. Such criminal history and inability to care for the minor on the part of
       [mother] places the child at substantial risk of serious physical harm.”3

       On December 3, 2010, Destiny was placed with maternal cousin Deila Q. and her
live-in boyfriend. The boyfriend later moved out when his criminal history put the
placement in jeopardy. Meanwhile, Destiny was receiving weekly occupational therapy
to address physical developmental delays that were believed to be the result of neglect
prior to the time she was detained. Following a December 28, 2010, disposition hearing,
Destiny remained placed with Delia and the matter was continued to June 14, 2011, for a
section 366.21, subdivision (e) review hearing (.21 hearing).
       For the .21 hearing, DCFS reported Destiny was doing well with Delia. Mother
had been released from community camp and was residing with maternal grandmother.
Mother’s visits with Destiny were consistent and she had participated in her case plan to
the extent possible while in camp. Mother’s probation officer praised mother’s progress.
Finding mother had made significant progress in resolving the problems that led to
Destiny’s removal, and that there was a substantial probability that Destiny could be
returned home within six months, the juvenile court continued the .21 hearing to
December 13, 2011.
       For the continued .21 hearing, DCFS reported that Destiny was doing well and had
established a bond with Delia. Delia wanted to adopt Destiny if reunification failed.

3      As sustained, count B-2 of the second amended petition alleged that Destiny’s
father “has a history of marijuana use which periodically limits the father’s ability [to
provide] the child with regular care and supervision. The father’s history of marijuana
use places the child at substantial risk of serious physical harm.” Father was an active
gang member involved in using and selling illegal drugs. He was incarcerated during
much of the dependency and his reunification services were terminated on August 24,
2011. Father did not challenge that order and is not a party to this appeal.


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Mother’s probation had ended but she was still living with maternal grandmother while
completing her court-ordered programs and trying to obtain a high school diploma.
Mother’s drug tests were mixed – some negative tests, some no-shows and two positive
tests for marijuana. Mother had inconsistently attended a parenting class until a month
before the hearing, when her attendance became more consistent. Mother’s visits with
Destiny were inconsistent. DCFS recommended terminating mother’s reunification
services. The .21 hearing was continued to February 7, 2012.
       According to a Last Minute Information For Court Officer filed on the day of the
continued .21 hearing, mother continued to attend individual counseling, she completed
22 sessions of a parenting program, submitted two negative drug tests and was exhibiting
a better attitude. Finding mother had not made significant progress in resolving the
problems that led to Destiny’s removal, the juvenile court terminated mother’s
reunification services and set the matter for a section 366.26 permanent plan hearing (.26
hearing) on June 5, 2012. Mother did not challenge that ruling.
       Mother did not remain drug free over the next several months. She was a “no-
show” at drug tests on March 27, April 11, May 16 and June 15, 2012. On April 23 and
May 4, 2012, mother tested positive for marijuana. Mother was arrested on May 12 for
being under the influence; she was hospitalized and tested positive for
methamphetamines and marijuana. The criminal court ordered mother to complete a
substance abuse program, notwithstanding the program she had completed as part of her
case plan.
       According to the report for the .26 hearing on June 5, 2012, Destiny continued to
flourish in her placement with Delia. Destiny’s weekly physical therapy had ended but
she was still receiving developmental services. Destiny’s preschool teacher and school
administrator reported that Destiny was doing well in school and they had no concerns.
The report described Destiny as a “happy child” and “a content, curious toddler who likes
to engage with her surroundings. She likes to play with keys, toys, and loves listening to
music and will dance when she hears it being played.” Destiny had normal eating and
sleeping patterns and good overall health. Regarding the likelihood of adoption, the

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report focused on concerns about Delia’s ongoing relationship with her boyfriend, who
had picked up another criminal conviction in January 2012, which caused DCFS to
question whether Delia’s adoption home study would be approved. Following DCFS’s
recommendation, the juvenile court continued the .26 hearing to October 2, 2012.
       On July 23, 2012, mother filed the first of three section 388 petitions seeking to
change the placement order to home of mother. As changed circumstances, mother
pointed to her completion of a year-long program that included parenting classes, anger
management and domestic violence and substance abuse programs; she had also obtained
a high school diploma and was actively seeking a job. Mother maintained the change
would be in Destiny’s best interest because there was no approved adoptive home,
mother had consistently visited, the visits went well and mother had become “more active
with changing diapers, holding, feeding and walking with Destiny.” Although the
juvenile court set the petition for hearing, mother withdrew the petition on the date of the
hearing. The juvenile court gave DCFS discretion to increase mother’s visits in duration,
but not to lift the monitor.
       The report for the .26 hearing on October 2, 2012, stated that Destiny continued to
thrive in her placement with Delia. Destiny had graduated from her developmental
services program the prior June and was now “developing at an age appropriate level.”
The adoptability assessment focused on Delia, who had ended her relationship with the
boyfriend whose criminal history had become a barrier to approving an adoption home
study, although they still communicated. DCFS recommended another six-month
continuance to further monitor the situation. The day of the hearing, mother filed a
second section 388 petition seeking a home of mother placement or, in the alternative,
unmonitored weekend and overnight visits. The change in circumstance and best interest
arguments were the same as for the withdrawn section 388 petition with the addition that
mother was now employed. The petition was set for hearing on November 2 and the .26
hearing was continued to the same day.
       According to DCFS’s report for the section 388 hearing, mother had two months
of negative drug tests, had obtained employment and was consistently visiting Destiny.

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DCFS opposed placing Destiny with mother but recommended unmonitored visits along
with continued drug testing. The juvenile court ordered unmonitored visits for mother,
with DCFS discretion to liberalize to weekends and overnights with the approval of
Destiny’s counsel. It continued the .26 hearing to March 1, 2013.
       For the continued .26 hearing, DCFS reported that Destiny was thriving. Delia
wanted to adopt Destiny and had ended her relationship with the former boyfriend. The
adoption home study had still not been approved because Delia had entered into a new
relationship. A live scan showed no criminal history for the new boyfriend, but DCFS
wanted to interview him more extensively. DCFS expected to successfully complete the
home study within six to eight weeks. Meanwhile, mother’s weekly eight-hour
unmonitored visits with Destiny were going well. The day of the hearing, mother filed a
third section 388 petition seeking a home of mother order or unmonitored weekend and
overnight visits. The change in circumstances and best interest arguments were
essentially the same as put forth in the first two section 388 petitions. The petition was
set for hearing on April 17 and the .26 hearing was continued to May 20.
       By the section 388 hearing on April 17 and 18, 2013, Destiny was three months
shy of her third birthday on July 16, 2013. She had been removed from mother’s custody
for two years, seven months (since September 7, 2010) and had been living with Delia for
two years, four months (since December 3, 2010). According to DCFS’s report, the
adoptive home study for Delia was “nearly complete.” Mother had completed most of
her court-ordered programs. She had been a “no-show” for drug tests on January 17 and
February 14, but otherwise tested negative. Mother was unemployed, but had
employable skills. She was still living with maternal grandmother, who reported that she,
too, was now sober. DCFS recommended overnight visits, but no change in placement.
At the hearing, the social worker testified that mother was pregnant by Destiny’s father
and DCFS was concerned about their relationship in light of father’s unresolved
substance abuse and ongoing criminality. Regarding mother’s unmonitored visits, the
social worker testified that Destiny was sometimes resistant to go with mother, but DCFS
had no concerns about her well-being during the visits. Destiny called both mother and

                                             6
Delia “Mommy” and although she had some attachment to mother, her main attachment
was to Delia. The social worker was unable to say whether it would be in Destiny’s best
interest to order unmonitored overnight visits. Mother did not testify at the hearing. The
juvenile court denied the petition, observing that Destiny had been in the dependency
system for almost three years. During most of that time, mother continued using drugs
even while participating in a substance abuse program. Of most concern to the court was
the fact that mother was still in a relationship with father, who continued using and
selling drugs, and was involved in a gang. The juvenile court concluded mother had not
established either the requisite changed circumstances or that Destiny’s best interests
would be served by the proposed change.
       At the .26 hearing on May 20, 2013, DCFS reported that Delia’s adoptive home
study had been approved. Mother testified that Destiny calls her, “Momma Lisa.” In the
prior six months, mother had missed just one visit, when she was in the hospital. Destiny
is “kind of shy at first,” but then she is “mostly happy” to see mother. During the
unmonitored visits, mother changes and feeds Destiny; she assists with potty-training by
asking Destiny every two hours whether she needs to use the restroom. Mother also
reads and plays with Destiny. When she is not with Destiny, mother calls Delia to check
on her. Mother did not know Destiny’s pediatrician. She knew that Destiny had been to
the doctor the week before for conjunctivitis. Destiny calls Delia “Mommy” or “Delia.”
Destiny’s favorite toy is her “baby.” Mother’s counsel argued application of the
section 366.26, subd. (c)(1)(B)(i) beneficial parental relationship exception to the
preference for adoption and termination of parental rights and urged the court to select
legal guardianship with Delia, rather than adoption, as the permanent placement plan.
Destiny’s counsel argued for termination of parental rights and adoption. While Destiny
had a relationship with mother, it was not that of parent and child and the benefits of a
permanent home outweighed those of maintaining the relationship with mother. DCFS
agreed with Destiny’s counsel. Concluding that the beneficial relationship exception did
not apply, the juvenile court noted that mother had made strides, but that weekly visits



                                             7
are not the same as parenting. It terminated mother’s parental rights, finding by clear and
convincing evidence that Destiny was likely to be adopted.
       Mother timely appealed from the April 18 and May 20 orders.

                                      DISCUSSION

A.     Denial of Mother’s Third Section 388 Petition Was Not An Abuse of Discretion

       Mother contends the juvenile court abused its discretion in denying her
section 388 petition seeking to change Destiny’s placement to home of mother or
unmonitored overnight and weekend visits. She argues that the petition showed changed
circumstances (consistent negative drug tests, completion of a year-long drug program,
earning her high school diploma, getting a job, consistently visiting Destiny and
becoming more hands-on in taking care of Destiny) and that the proposed order was in
Destiny’s best interests (mother and Destiny were bonded).
       Section 388 permits a parent to petition for a change of a previous order when the
change would be in the child’s best interests.4 The statute gives a parent one last chance
to save a parent-child relationship following termination of reunification services but
before termination of parental rights. (In re Jackson W. (2010) 184 Cal.App.4th 247,
258; In re Hunter S. (2006) 142 Cal.App.4th 1497, 1506–1508.)
       To succeed on a section 388 petition, the parent must establish “by a
preponderance of the evidence that (1) new or changed circumstances exist, and (2) the
proposed change would promote the best interest of the child. [Citation.]” (In re S.J.
(2008) 167 Cal.App.4th 953, 959.) “The parent bears the burden to show both a
‘ “legitimate change of circumstances” ’ and that undoing the prior order would be in the
best interest of the child. [Citation.] The petition is addressed to the sound discretion of


4      Section 388, subdivision (a) provides: “Any . . . 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 . . . .”

                                              8
the juvenile court, and its decision will not be overturned on appeal in the absence of a
clear abuse of discretion. [Citation.]” (Id. at pp. 959–960; see also In re B.C. (2011)
192 Cal.App.4th 129, 141.)
       We find no abuse of discretion in the juvenile court’s finding that mother failed to
establish either changed circumstances or that the proposed change would promote
Destiny’s best interests. But for some additional visits, there had been no positive
changes since the juvenile court denied mother’s second section 388 petition – a ruling
which mother did not challenge. On the contrary, notwithstanding mother’s participation
in substance abuse programs, she was still in a relationship with the father, who
continued to pursue a life of criminality, including ongoing gang involvement as well as
using and selling drugs. The poor judgment this shows on mother’s part is enough to find
that placing Destiny with mother, or giving her unmonitored weekend or overnight visits,
would not promote Destiny’s best interests.

    B. Substantial Evidence Supported the Finding That Destiny Was Adoptable

       Mother contends the finding that Destiny was adoptable “lacked the careful
assessment necessary to determine if she could be adopted by [Delia].” She argues that,
“because Destiny was bonded to [Delia] and because no other people had been identified
as willing to adopt, the court did not have sufficient evidence Destiny would be adopted
within a reasonable period of time unless there was evidence [Delia] would be adopting
the child.”5 We find no error.
       At a .26 hearing, the juvenile court has four choices. In order of preference, those
choices are: “(1) terminate parental rights and order that the child be placed for adoption
(the choice the court made here); (2) identify adoption as the permanent placement goal
and require efforts to locate an appropriate adoptive family; (3) appoint a legal guardian;


5      To the extent mother complains about defects in the adoptability assessment,
DCFS is correct that mother has waived those claims by not objecting below. (In re
Brian P. (2002) 99 Cal.App.4th 616, 623.) She has not, however, waived the failure of
proof claim. (Ibid.)

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or (4) order long-term foster care. (§ 366.26, subd. (b).) . . . ‘Adoption is the
Legislature’s first choice because it gives the child the best chance at [a full] emotional
commitment from a responsible caretaker.’ [Citation.]” (In re Celine R. (2003)
31 Cal.4th 45, 53.) For this reason, whenever the court finds “by a clear and convincing
standard, that it is likely the child will be adopted, the court shall terminate parental rights
and order the child placed for adoption.” (§ 366.26, subd. (c)(1).) To meet the “clear and
convincing” standard, “the court must merely determine that it is ‘likely’ that the child
will be adopted within a reasonable time. [Citations ]” (In re K.B. (2009)
173 Cal.App.4th 1275, 1292.) On appeal, the “clear and convincing” test disappears and
we review the adoptability finding for substantial evidence. (In re E.B. (2010)
184 Cal.App.4th 568, 578.)
       “The question of adoptability usually focuses on whether the child’s age, physical
condition and emotional health make it difficult to find a person willing to adopt that
child. [Citation.] If the child is considered generally adoptable, we do not examine the
suitability of the prospective adoptive home. [Citation.]” (In re Valerie W. (2008)
162 Cal.App.4th 1, 12 (Valerie W.), italics added.) A child’s placement with a
prospective adoptive parent is substantial evidence of general adoptability. (In re A.A.
(2008) 167 Cal.App.4th 1292, 1313.) Even if special needs render a child not generally
adoptable, “a finding of adoptability can nevertheless be upheld if a prospective adoptive
family has been identified as willing to adopt the child and the evidence supports the
conclusion that it is reasonably likely that the child will in fact be adopted within a
reasonable time. [Citations.]” (K.B, supra, 173 Cal.App.4th at pp. 1292-1293.)
       Here, by all accounts Destiny was a happy, healthy almost three year old. She had
been placed with Delia for more than two years, Delia wanted to adopt her and an
adoptive home study of Delia’s home had been approved. This constituted substantial
evidence that Destiny was generally adoptable.
       Mother’s reliance on Valerie W., supra, for a contrary result is misplaced. In
Valerie W., a mother and daughter intended to jointly adopt two siblings but there was no
approved home study for the daughter. Because there was no indication that the mother

                                              10
wanted to adopt alone, the appellate court found the lack of information about the
daughter rendered the assessment inadequate. (Valerie W., supra, 162 Cal.App.4th at
p. 15.) Valerie W. is inapposite to this case because Delia intends to adopt Destiny alone,
and there was an approved home study for Delia. Additionally, Valerie W. involved
siblings, one of whom appeared to have special needs that were not addressed in the
assessment. Here, although Destiny had some developmental issues as an infant, those
issues had been successfully treated and by the time of the .26 hearing nothing about
Destiny’s age, physical or emotional health rendered her anything other than generally
adoptable.

C.     There Was No Evidence that the “Beneficial Parental Relationship” Exception to
       the Preference For Adoption Applied

       Mother challenges the sufficiency of the evidence to support the juvenile court’s
finding that the beneficial parental relationship exception to the preference for adoption
did not apply. She argues the evidence established a bond between mother and Destiny
that required application of the exception.
       Most appellate courts apply a substantial evidence standard of review to the trial
court’s determination of whether a section 366.26 statutory exception applies. (In re
Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) Some courts have applied the abuse of
discretion standard of review. (See, e.g., In re Brittany K. (2005) 127 Cal.App.4th 1497,
1512.) The practical differences between the two standards are not significant
(Jasmine D. at p. 1351), and under either standard, we would affirm.
       The Legislature has recognized that adoption is not the appropriate plan in every
case. (§ 366.26, subds. (b)(1) & (c)(1).) An exception exists when the child has a strong
bond with the parent and severing that bond would be detrimental to the child. (§ 366.26,
subd. (c)(1)(B)(i); see In re S.B. (2008) 164 Cal.App.4th 289, 299 [“The exception [to the
preference for adoption] may apply if the child has a ‘substantial positive emotional
attachment’ to the parent.”].) This exception applies when “ ‘[t]he court finds a
compelling reason for determining that termination would be detrimental to the child’


                                              11
(§ 366.26, subd. (c)(1)(B)) because ‘[t]he parents have maintained regular visitation and
contact with the child and the child would benefit from continuing the relationship.
(§ 366.26, subd. (c)(1)(B)(i).)’ ” (In re K.P. (2012) 203 Cal.App.4th 614, 621.) “The
‘benefit’ prong of the exception requires the parent to prove his or her relationship with
the child ‘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.’ [Citations.]
No matter how loving and frequent the contact, and notwithstanding the existence of an
‘emotional bond’ with the child, ‘the parents must show that they occupy “a parental
role” in the child’s life.’ [Citations.] The relationship that gives rise to this exception to
the statutory preference for adoption ‘characteristically aris[es] from day-to-day
interaction, companionship and shared experiences. Day-to-day contact is not necessarily
required, although it is typical in a parent-child relationship.’ [Citation.] Moreover,
‘[b]ecause a section 366.26 hearing occurs only after the court has repeatedly found the
parent unable to meet the child’s needs, it is only in an extraordinary case that
preservation of the parent’s rights will prevail over the Legislature’s preference for
adoptive placement.’ [Citation.]” (Id. at p. 621.)
       The parents bear the burden of showing that termination of parental rights would
be detrimental to the child. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) A
showing that the child would derive some benefit from continuing a relationship with the
parent through visitation is not enough to derail an adoption. The exception is not “a
mechanism for the parent to escape the consequences of having failed to reunify.” (In re
Jasmine D., supra, 78 Cal.App.4th at p. 1348.)
       In In re S.B., supra, 164 Cal.App.4th at page 301, the reviewing court found that
the only reasonable inference from the record, which included a bonding study, was that
the child would be greatly harmed by the loss of the parental relationship. By contrast, in
In re C.B. (2010) 190 Cal.App.4th 102, 125, where there was no bonding study or other
expert evidence of detriment, the court concluded that the undisputed fact that the
children loved the mother was insufficient to establish the exception.



                                              12
       Here, mother has failed to show that maintaining her relationship with Destiny
outweighs the benefits Destiny would gain in a permanent home with an adoptive parent.
There was no evidence that Destiny had a substantial emotional bond with mother. On
the contrary, the evidence was that Destiny was hesitant to go with mother on
unmonitored visits. And there was no evidence that Destiny was upset when she left
mother at the end of those visits. There was no bonding study or any other expert
evidence that terminating mother’s parental rights would be detrimental to Destiny.
These facts do not show that this is the extraordinary case in which the beneficial
relationship exception applies.

                                     DISPOSITION

       The April 18, 2013 order denying mother’s section 388 petition and the May 20,
2013 order terminating mother’s parental rights are affirmed.




                                                 RUBIN, ACTING P. J.
WE CONCUR:




              FLIER, J.




              GRIMES, J.




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