Filed 4/29/14 In re Timothy M. CA43




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


In re TIMOTHY M., a Person Coming
Under the Juvenile Court Law.

ORANGE COUNTY SOCIAL SERVICES
AGENCY,
                                                                       G049086
     Plaintiff and Respondent,
                                                                       (Super. Ct. No. DP022438)
         v.
                                                                       OPINION
M.M. et al.,

     Defendants and Appellants.



                   Appeal from a judgment of the Superior Court of Orange County, Gary G.
Bischoff, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
                   Liana Serobian, under appointment by the Court of Appeal, for Defendant
and Appellant M.M.
              Jacob I. Olson, under appointment by the Court of Appeal, for Defendant
and Appellant E.M.
              Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Julie J.
Agin, Deputy County Counsel, for Plaintiff and Respondent.
                                  *           *          *
              M.M. (mother) and E.M. (father) appeal from the juvenile court’s judgment
terminating their parental rights to Timothy M. (born August 2009).1 The parents
contend the juvenile court abused its discretion by denying mother’s Welfare and
Institutions Code section 388 (all further statutory references are to this code unless
noted) petition without an evidentiary hearing, and erred in finding inapplicable the
continuing benefit exception to termination of parental rights (§ 366.26, subd.
(c)(1)(B)(i)). Finding no basis to overturn the orders, we affirm.
                                              I
                        FACTUAL AND PROCEDURAL BACKGROUND
              In November 2009, Los Angeles County social workers took into protective
custody two-month-old Timothy and his nine-year-old half-sibling R.C. The Los
Angeles juvenile court later sustained a petition alleging that in July 2008 mother
physically abused R.C. (then eight years old) by grabbing and choking him. R.C. stated
the attack occurred as the family drove mother to the hospital for mental health issues.
Mother was subsequently placed under a 72-hour hold for a mental health evaluation.
(§ 5150.) In November 2009, an unnamed party reported the parents were unable to care
for the children because of mental illness (schizophrenia) and substance abuse issues.

       1       Father’s participation and cooperation with the case plan was minimal, and
he failed to attend the section 366.26 hearing. He repeatedly tested positive for marijuana
during the reunification period and inconsistently visited with Timothy. He voiced his
desire that mother have custody of Timothy. On appeal, father joins in mother’s
arguments and asserts we must reverse the judgment terminating his parental rights if we
reverse mother’s judgment. (Cal. Rules of Court, rule 8.200(a)(5); rule 5.725(a)(2) [court
may not terminate the rights of only one parent absent exceptions not applicable here].)

                                              2
Mother had informed the reporting person that Timothy was born with a medical
condition and could not swallow food through his mouth because his throat was too short.
Social workers learned the parents had a history of domestic violence involving father’s
physical abuse of mother. Mother was dependent on alcohol, marijuana and cocaine,
used illicit drugs while pregnant with Timothy, and had a history of arrests and
convictions for drug and theft-related crime. Father also abused marijuana and alcohol.
During a monitored visit with Timothy in December 2009, mother overreacted to a self-
inflicted fingernail scratch on Timothy’s face by demanding the social workers intervene
to protect her child from his caretakers. Ultimately, the parents reunified with Timothy in
June 2011. The court placed R.C. with his father in Orange County and mother had
weekly visits.
                 In April 2012, Orange County social workers detained Timothy after police
officers arrested mother following a domestic dispute with the maternal uncle During the
incident, mother cut her brother’s arm with a steak knife. Mother told officers the uncle,
who she claimed had a history of drug use and illegal activities, insulted Timothy because
he was part African-American. Mother claimed the uncle also accused her of
“snitch[ing]” on him in a counterfeiting case, and had pushed Timothy against a wall
during the argument. According to mother, he “walked into” the knife and cut his
forearm when he attempted to assault her. The uncle, however, informed officers mother
was upset because she thought someone had stolen her “government-issued cheese” and
she chased him as he tried to lock himself in the bathroom. He denied attacking mother
or that she stabbed him in self-defense. The physical evidence did not support mother’s
version of the incident. At the time of the assault, mother also had an outstanding
warrant for hit and run driving, and driving without a license.
                 The Orange County Social Services Agency (SSA) filed a petition (§ 300,
subds. (b), (g) & (j)) alleging Timothy was at risk of harm based on mother’s assault and



                                              3
incarceration, mother’s history of mental health issues, her abuse of marijuana, and
Timothy’s prior dependency.
              Mother pleaded guilty to aggravated assault and the criminal court placed
her on probation. In May 2012, the parents pleaded no contest to the amended
allegations of the dependency petition and the court declared Timothy a dependent of the
court. The court removed Timothy from parental custody and ordered reunification
services for the parents.
              Mother’s case plan required her to submit drug tests for 90 days, to attend
anger management counseling, individual counseling, and parenting education. The case
plan required a substance abuse treatment program if she submitted a positive drug test.
The court authorized twice-weekly supervised visitation after mother obtained her release
from jail May 27, 2012. The social worker later liberalized visits to allow unmonitored
meetings.
              In August 2012, SSA filed a section 388 petition to restrict mother’s
unsupervised visits after mother produced three diluted drug tests in June and July. The
drug testing company considered a diluted test the equivalent of a positive test. The
social worker informed mother she would have to participate in outpatient drug treatment
if she continued to submit diluted tests. Mother complained she was drinking lots of
water because she was on a diet and was “‘traumatized’” by the social worker’s advice
not to drink so much before testing and to test early in the morning. In early August
2012, mother’s therapist, Lorraine Tuala, reported mother fainted during a session after
saying her “heart was hurting.” Responding paramedics concluded mother’s fainting
spell was not caused by a medical condition. Mother claimed the hospital advised her
that her urine was “‘concentrated’” and her “‘blood was dehydrated.’” Following a
hearing on the petition, mother agreed to wear a drug patch and a “SCRAM”
(transdermal alcohol testing) bracelet in lieu of restricting her visits with Timothy. The
court denied the section 388 petition without prejudice.

                                             4
              In September 2012, mother complained Timothy was learning profanity
and aggressive behaviors in his foster placement. She also felt the foster mother
neglected Timothy’s hygiene, and accused the foster mother and foster family agency
(FFA) social worker of “lying and ‘covering up’ for their mistreatment” of Timothy. The
FFA social worker visited the foster home and did not observe Timothy “cuss, spit or hit
the monitor or other people” or use profanity or act aggressively. Nonetheless, after a
team decision meeting, the parties agreed to move Timothy to a different foster home.
SSA placed Timothy with new foster parents on September 27. The prior caretaker’s
teenage son later admitted teaching Timothy profanities because he “thought it was
funny.” Mother stated, “‘[t]his is child abuse! They mentally and physically abused my
child and they should be arrested.’”
              The social worker’s report for the November 2012 six-month status review
noted Timothy had two bouts of breathing difficulties requiring medical treatment, and he
appeared to have delayed speech issues. The social worker described mother’s
cooperation with the case plan as “moderate.” She tested negative for drugs, other than
the diluted tests, and tested negative after wearing the drug patch and bracelet. The social
worker referred mother to the county’s perinatal substance abuse program in August, but
mother claimed the program would not accept her because she was not a drug user.
              Mother completed a four-week parenting education class in June 2012. She
completed individual counseling with Tuala in October 2012. The counselor reported
mother was punctual and “an active participant and showed progress towards her goals.”
Mother, however, rejected Tuala’s efforts to refer her to other resources. Mother
completed her anger management program in October 2012. The anger management
counselor, Kathy Pauley, reported mother often identified herself as a victim, made “‘off
topic’” remarks, and could not articulate what she had learned. Pauley did not believe
mother would benefit from more anger management classes because mother’s “‘problems
are greater than that. I think she would benefit more with individual counseling and with

                                             5
someone with a psych background.’” The social worker advised mother of Pauley’s
concerns and recommended additional individual counseling, but mother replied she did
not need more counseling, citing Tuala’s earlier report.
              SSA increased mother’s unmonitored visitation to six hours (three hours
twice a week) beginning November 14, 2012. Mother brought food and toys for the
visits and entertained Timothy by playing and reading to him. Timothy cried at the end
of mother’s visit in June 2012, and stated “‘there’s mommy’” when he saw her at the
beginning of another visit in October 2012. He did not get up or call out to her, however,
and sat near the foster parents rather than mother. Mother was pleased with the
“‘beautiful’” new foster family, stating Timothy was “‘lovable again, isn’t saying no bad
words, and isn’t aggressive.’”
              On November 27, the parties submitted on the social worker’s reports and
the court adopted the social worker’s recommendation to continue reunification services.
              In early January 2013, the social worker reported mother’s visits had
increased to eight unmonitored hours (two four-hour visits) weekly. Timothy often was
seen smiling and laughing in the foster home. The foster parents reported that mother’s
behavior during daily telephone calls with Timothy seemed “‘a bit strange. . . . It seems
she’s got this routine and calls him and reads Bible verses to him and if he interrupts her,
she doesn’t answer his question and she keeps on reading. Timothy . . . told her [one
time], “No, you’re not listening.” He was in a play at church and he was trying to tell her
that, but she said, “no mijo” and kept on reading. She doesn’t seem to interact or engage
him in the phone calls and maybe that’s just her way of talking to him, but it’s different.
We can tell you exactly what she will say each time on the phone and it’s like a script. It
never changes and every day it’s the same thing.’” Because mother continued to provide
negative drug tests, the court relieved mother from wearing the drug bracelet, but
authorized funds for random drug testing at least eight times per month.



                                             6
              Mother continued to share an apartment with a roommate (she and father
had long since separated) and worked in a food truck. Her probation officer reported
mother was “‘doing well’” and had reduced her level of supervision.
              During this period Timothy participated in developmentally appropriate
educational and extracurricular activities, but had difficulty pronouncing certain sounds.
The school district offered Timothy speech therapy services, but mother declined to sign
the requisite form. When asked why she did not sign the form, mother claimed she had
not heard back from the school.
              The foster parents reported Timothy did not want to visit mother. He cried,
refused to get out of the car, and said “‘mommy mean.’” He engaged in age-appropriate
play with peers and the foster siblings, but also displayed aggressive behavior by taking
away toys and food, throwing things, and hitting and pulling the foster sister’s hair when
he thought no one else was looking. In March, the foster mother found him kicking the
family dog. He also hit the foster father in the stomach when he could not have ice
cream.
              During a February 2013 team meeting, mother complained about the
current foster parents’ ability to supervise and care for Timothy, and asserted Timothy
had sustained “serious injur[ies]” in the foster home. The foster parents explained the
child scraped his knee and bruised his eye during scooter and tripping accidents, and they
had promptly reported and documented the incidents. The foster mother complained
about mother’s numerous false accusations and declared she could no longer work with
her. The social worker noted mother had made similar, largely unjustified, complaints
about Timothy’s safety in both the current case and the Los Angeles case, and mother’s
“heightened sense of protection for her son . . . is unintentionally negatively impacting”
his stable placement with the current caretakers. The social worker noted Timothy was
happy in his current placement and had made progress, particularly regarding his speech



                                             7
issues. The social worker expressed concern that “another placement disruption . . . will
have a detrimental” effect on Timothy’s emotional well-being.
              The social worker referred mother to additional parenting services and
counseling, but mother declined to participate. Mother continued to provide negative
drug tests. As of May 2013, the social worker had increased mother’s unsupervised visits
to 10 hours a week (five hours twice a week). Timothy continued to resist visiting his
mother. During one visit, Timothy spoke to mother briefly and then “disengage[d] from
her, showing flat affect and not speaking.” Mother sat silently eating her food. On the
way to a visit in late April 2013, Timothy became so upset the person transporting him
had to pull the car over and console him. He initially refused to get out of the car to see
mother. There was little interaction between the pair during visits. Timothy and mother
did not hug or kiss each other, and Timothy did not laugh or smile during these visits.
The foster parents reported Timothy became anxious and cried before the scheduled
visits, and afterward was unusually quiet and would not talk about what he and mother
did together. He urinated in his pants after a few visits and one time came back without
his shirt. During another visit at a park, mother sat on a bench and did not play with
Timothy for over an hour. The foster parents noted Timothy’s aggressive behavior
surfaced after visiting his mother. The FFA social worker noted Timothy responded well
to 10-minute nightly phone calls with mother, but sometimes had to be coaxed to take the
call.
              In early May, the social worker advised mother she would like to see more
interaction with Timothy. Mother stated the way she “‘bond[ed] with [her] son is I pray.
I supervise him, I nurture him, caring for him, watching for his safety and always telling
him that I love him and showing him good morals.’” Asked how she played with
Timothy, mother took out a children’s Bible and said, “‘I have his Bible, I have his toys
and I’m always supervising him.’” She noted Timothy had never suffered any “‘vital
injuries or any bruising’” in her care. She said “‘I know that I care for my child and

                                              8
every mom bonds with their child differently and that is [] the response that I don’t play
with him enough.’” Asked what she had learned from the court process, mother stated
“‘[n]o comment,’” but then observed she was “‘more aware of what people are capable of
doing’” and explained Timothy was “‘resistant [to her] during visit transitions” because
he had been verbally abused in the prior foster home, and had suffered “‘vital injuries
from the current foster family.’”
              The social worker observed Timothy had spent 75 percent of his life in
foster care (33 of 45 months) over the course of two dependency cases, and mother had
not “appear[ed] to have garnered any insight as to what has le[d] to her child’s
involvement, twice, with Social Services. While the mother is quick to respond to any
perceived wrong-doings on the part of the child’s caretakers and the Agency, [she] has
failed to accept any responsibility for her actions leading to the Court’s involvement.”
Mother had declined to sign the agreement to begin speech therapy and arrange time for
an individualized education plan for Timothy. Mother’s interactions with Timothy were
minimal and her visits grew increasingly more difficult as Timothy’s alienation
increased. The social worker recommended terminating reunification services and setting
a section 366.26 hearing because she “cannot assert that there is a substantial probability
that the child will reunify with the mother now or in the next six months.”
              On May 23 the social workers informed the parents they had not made the
necessary progress over the past 12 months to warrant continued reunification services.
Mother objected, citing the programs and classes she had completed and her clean drug
tests. She expressed love for Timothy, asserted “visits with Timothy [were] positive and
interactive,” and “was emphatic that she wants her son Timothy back into her custody.”
Mother contacted the social worker’s supervisor and asked if she could have visits at
locations that had cameras and the court could subpoena the employees to prove she did
not “‘abuse my child.’”



                                             9
             The school district evaluated and tested Timothy in early June. During the
evaluation, the speech pathologist asked mother questions, but she would not respond to
most questions. Mother was “‘not engaged,’” and she and Timothy did not “‘make eye
contact.’” After the assessment, mother did not hug or kiss Timothy, but just patted him
on the back. Mother thought “‘[e]verything went well.’” She could not answer the
speech pathologist’s questions, explaining she did not care for Timothy on a daily basis
and could not provide a detailed medical history. In August 2013, a speech pathologist
advised Timothy did not require services.
             During a June 6 visit, mother kissed Timothy at the end of the visit,
whispered something to him, and he kissed her back. The foster agency social worker
expressed concern “that there is not much interaction [by mother]” with Timothy during
visits and “she does not comfort/consol[e] him or intervene, instead” she “stands back
from the situation.” The worker did not observe an emotional connection between the
two and no physical or eye contact. Timothy continued to verbalize he did “not want to
see ‘mommy,’” although on May 31 he did get “out of the car easily and” go to mother.
             At the 12-month permanency review on June 10, 2013, mother stipulated
that returning Timothy to her custody would be detrimental, and agreed the court could
terminate reunification services and schedule a section 366.26 hearing.
             In August, the social worker reported Timothy’s current foster parents
advised they were not willing to adopt Timothy and believed he needed a more
permanent home. Timothy’s current respite caregivers, the M.’s, were “very much
interested in adopting” Timothy. Timothy stayed and visited with the M.’s many times
during the prior year and got along well with the M.’s and their two young boys. SSA
placed Timothy with the M.’s on August 15, 2013.
             During a visit on September 6, mother phoned 911 to report Timothy had
blood in his urine, and he was screaming and yelling. Paramedics who responded to
mother’s emergency call released Timothy to the caregivers, who took him to the

                                            10
emergency room. Timothy’s treating physicians found no evidence of bleeding or
bruising.
              In September, the social worker reported Timothy was likely to be adopted
and he would not suffer detriment if the court terminated parental rights. The social
worker emphasized Timothy had spent most of his life in foster care, and while mother
“attended to her Court ordered services . . . and her visits, and has expressed interest in
reunifying with the child, [she] does not appear to have gained any insight” or accepted
responsibility for her actions necessitating court intervention.
              On September 30, 2013, mother filed a petition to modify the June 10, 2013
order terminating reunification services and setting the section 366.26 hearing. Mother
argued she had “completed perinatal classes; never missed an unsupervised visit with the
minor; made substantial progress in bonding with the minor child; taken the initiative to
provide emergency medical assistance for the minor child on 9/6/13; On 9/12/13 minor is
smiling and laughing and bonding well with mother; mom’s tests are always clean; mom
has completed all programs.” Because mother and Timothy had “substantially bonded”
since the June permanency review hearing, she requested a hearing to “determine
whether it would be in minor’s best interest to be reunified with mother.”
              Mother attached a card showing she attended Alcoholics Anonymous
meetings between June and August 2013, and an August 20, 2013 letter verifying her
attendance at five weekly sessions of a 12-week county-run parenting program “for
parents who have responsibility for caring for at-risk children and youth.” The parenting
program began July 10, 2013, and was scheduled to run through September 25. Mother
also provided a September 3, 2013 letter from the 12-month county-run perinatal
outpatient drug and alcohol program reflecting mother enrolled June 12, 2013, she was in
“Phase II – Assertion and Communication Skills,” she drug tested every Monday and
Thursday, and she had no positive or missed tests. She received scores of 5 out of 5
(“occurs very often”) for attendance, acceptance of responsibility, help-seeking, active

                                             11
engagement, self-disclosure, and sobriety. She received a score of 4 (“often”) for
empathy and insight. The program social worker stated mother was “active in all of her
groups and in individual sessions” and “utilizes her time in therapy effectively by
processing challenges that she experiences in her life. [She] appears motivated and
committed to create a safe environment for herself and hopes to be able to reunify with
her son.” Mother also supplied a completion certificate for Phase I of the program dated
July 29, 2013.
              SSA and minor’s counsel opposed mother’s petition. Minor’s counsel
urged the court to reject mother’s modification petition because mother failed to address
her mental health issues. The court agreed that “drug abuse wasn’t the only issue” and
questioned whether mother had addressed her mental health and domestic violence
issues. The court explained it was concerned about mother’s conduct on September 6th,
noting “people that have no reason to prevaricate examined the child and found that there
was no bleeding and there was no bruising. Your client indicated there was both.” The
court observed mother subjected Timothy to an unnecessary medical examination,
concluding mother “was, in some fashion, delusional and observed something that was
not there, or secondly, was engaged in some sort of conduct which did not represent the
truth.” The court denied the section 388 petition without an evidentiary hearing, finding
mother’s request failed to present new evidence or a change of circumstances and the
proposed change was not in Timothy’s best interest.
              At the section 366.26 hearing, mother submitted the matter on the social
worker’s reports and waived cross-examination of the social worker. The court found
Timothy likely to be adopted, found the parent-child benefit exception did not apply, and
terminated parental rights.




                                            12
                                                  II
                                            DISCUSSION
A.    The Juvenile Court Did Not Abuse Its Discretion in Denying Mother’s Modification
Petition Without a Hearing
               Mother contends the juvenile court abused its discretion in denying her
section 388 petition without a hearing. She notes after the June 10 order terminating
reunification services she continued to test negative for drugs, she enrolled and was
making progress in the perinatal substance abuse program, she completed another
parenting class, and she had maintained 10 hours a week of unmonitored visitation and
telephone calls with Timothy. She also relies on earlier information, including her
individual therapist’s October 2012 completion letter describing mother’s progress in
reaching the goals set at the outset of therapy. Mother argues the foregoing required the
court to conduct a hearing on her modification petition.
               Section 388 provides in relevant part, “(a)(1) Any parent . . . 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. . . . [ ¶] . . . (d) If it appears that the best interests of the child
. . . may be promoted by the proposed change of order . . . , the court shall order that a
hearing be held . . . .”
               A modification petition “must be liberally construed in favor of its
sufficiency.” (Cal. Rules of Court, rule 5.570(a).) But “the parent seeking modification
must ‘make a prima facie showing to trigger the right to proceed by way of a full
hearing.’” (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) The “prima facie
requirement is not met unless the facts alleged . . . would sustain a favorable decision on
the petition.” (In re Zachary G. (1999) 77 Cal.App.4th 799, 806; In re Alexis W. (1999)
71 Cal.App.4th 28, 36 [party seeking modification “has the burden of showing not only

                                                  13
that circumstances have changed, but that [proposed change] would be in the child’s best
interests”].) We review the juvenile court’s summary denial of a section 388 petition for
an abuse of discretion. (In re Angel B., (2002) 97 Cal.App.4th 454, 460.) An abuse of
discretion occurs when the trial court makes an “‘“arbitrary, capricious, or patently
absurd determination.”’” (In re Arthur C. (1985) 176 Cal.App.3d 442, 446.)
              The court did not abuse its discretion in denying mother’s petition because
mother failed to present evidence showing a change of circumstances that required a
hearing. Indeed, mother’s petition failed to show she took any steps to address her
mental health issues since the court terminated reunification services in June 2013. The
court correctly determined mother’s mental health was a crucial factor in deciding
whether Timothy could be safely returned to his mother’s care. Ample reasons supported
the court’s view. Mother’s odd conduct surfaced repeatedly throughout the case and
continued into September 2013. In November 2009, mother reported, without factual
basis, Timothy was born with a medical condition and could not swallow food through
his mouth because his throat was too short. During a monitored visit in December 2009,
mother overreacted to a self-inflicted fingernail scratch on Timothy’s face. In April
2012, mother used a steak knife to stab her brother in the arm because she thought
someone had stolen her government-issued cheese.
              Around August 2012, mother complained she was on a diet and drinking
lots of water and was “‘traumatized’” by the social worker’s advice not to drink too much
water before drug testing, and to test early in the morning. In August 2009, mother’s
therapist reported mother fainted during a session after saying her “heart was hurting,”
but paramedics concluded there was no medical basis for her claim. Mother claimed the
hospital advised her urine was “concentrated” and her “‘blood was dehydrated.’”
              In September 2012, mother complained the foster mother and FFA social
worker were “lying and ‘covering up’ for their mistreatment” of Timothy. Mother
overreacted to information the foster brother had exposed Timothy to profane language

                                            14
by demanding authorities arrest the foster parents for mentally and physically abusing her
child.
              Mother’s anger management counselor, Kathy Pauley, reported in
November 2012 that mother often identified herself as a victim, made “off topic” remarks
and could not articulate what she had learned. Asked if mother could benefit from more
anger management classes, Pauley responded mother’s “‘problems are greater than that.
I think she would benefit more with individual counseling and with someone with a
psych background.’” Mother, however, rejected the notion she needed more counseling.
              In January 2013, the foster parents reported mother’s behavior during daily
telephone calls with Timothy seemed “‘a bit strange. . . . It seems she’s got this routine
and calls him and reads Bible verses to him and if he interrupts her, she doesn’t answer
his question and she keeps on reading. . . . We can tell you exactly what she will say each
time on the phone and it’s like a script. It never changes and every day it’s the same
thing.’”
              During a February 2013 team meeting, mother complained Timothy had
sustained “serious injur[ies]” in the foster home. In fact, he had scraped his knee and
bruised his eye during scooter and tripping accidents. The foster mother, who reported
and documented the incidents, complained about mother’s escalating and false
accusations and stated she could not longer work with her. In May 2013, mother noted
Timothy had never suffered any “‘vital injuries or any bruising’” in her care and asserted
he had been verbally abused in the prior foster home, and had suffered “‘vital injuries
from [the] current foster family.’” At a May 23 team meeting mother stated she wanted
to visit Timothy at locations that had cameras so the court could subpoena the employees
to prove she did not “abuse my child.”
              Finally, on September 6, 2013, mother phoned 911 to report Timothy had
blood in his urine. An emergency room physician found no injuries and nothing else
corroborated mother’s claim.

                                            15
              The issue in September 2013 was not whether, as mother suggests, she
continued to abuse controlled substances. (See In re Drake M. (2012) 211 Cal.App.4th
754, 766.) The question was whether Timothy would achieve a stable placement if
returned to her care. Her unjustified complaints about Timothy’s safety negatively
impacted his well-being and suggested she was incapable of providing a stable and secure
environment. The history of the case reflects that as of September 2013, mother had not
surmounted the issues that had caused now four-year-old Timothy to enter and remain in
foster care for over 75 percent of his life. Mother’s decision not to participate in
additional counseling or other services recommended by the social worker showed
mother failed to appreciate how important her mental health was to Timothy’s well-
being. Mother’s participation in substance abuse treatment, additional parenting, and
other programs after the court terminated reunification services in June 2013 was
laudable, but as the September 6 incident demonstrated, the root problem remained.
              The evidence of mother’s interaction with Timothy during their visits
showed it was not in Timothy’s best interests to return to his mother’s care. Although
SSA consistently increased the duration of Timothy’s visits with mother during the
reunification period, Timothy often verbally and physically resisted these encounters.
The foster parents reported Timothy became anxious and cried before visits, urinated in
his pants, and afterward increased his aggressive behaviors. The FFA worker expressed
concern mother did not physically and emotionally interact with Timothy, who
reciprocated her lack of involvement. The social worker advised mother to try different
techniques to engage Timothy during visits, but mother declined, stating the way she
“‘bond[ed] with my son is I pray. I supervise him, I nurture him, caring for him,
watching for his safety and always telling him that I love him and showing him good
morals.’” Timothy’s reactions and interactions with mother during visits supported the
juvenile court’s finding Timothy’s best interests would not be promoted by mother’s



                                             16
proposal to vacate the order terminating services and return Timothy to her care in
September 2013.
              Mother notes SSA’s report for the section 366.26 hearing does not
reference her numerous visits (21 visits, 160 hours) occurring after the court terminated
mother’s reunification services in June 2013, other than those occurring on September 6
and 12. Mother suggests the juvenile court could not have made an informed decision
whether to set mother’s modification petition for a hearing, but the court had before it
mother’s statements in her petition that she had “made substantial progress in bonding
with the minor child” and that on September 12 Timothy “is smiling and laughing and
bonding well with mother” and “[e]ach weekly unmonitored visit with Mother and the
minor child has been successively progressive in that they are bonding well, laughing and
enjoying each other’s company – something that was not as evident prior to the court’s
order in June.” The court could assess these generalized statements against the
descriptions of prior visits.
              Mother states she “is a committed and loving mother who has gone above
and beyond to reunify with her son and done all that was asked of her. Is she perfect?
Certainly not, but neither are most parents, and ‘[w]e do not get ideal parents in the
dependency system.’ (David B. v. Superior Court (2004) 123 Cal.App.4th 768, 789.)”
The question for the juvenile court was not mother’s love and commitment, which no one
questions, but whether circumstances had changed to such an extent that Timothy’s best
interests would be served by modifying the June 2013 orders. The court reasonably
could find based on mother’s petition, considered in context with the history of the case,
that mother failed to make a prima facie showing requiring a hearing.




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B.   The Juvenile Court Did Not Err In Failing to Apply the Parent-Child Benefit
Exception to the Termination of Mother’s Parental Rights
                 Mother argues the juvenile court erred by failing to apply the parental
benefit exception (§ 366.26, subd. (c)(1)(B)(i)) to avoid terminating her parental rights.
The court did not err.
                 Section 366.26 provides that after reunification efforts have failed and the
court finds the child is likely to be adopted, “the court shall terminate parental rights”
(§ 366.26, subd. (c)(1)), unless specified circumstances exist. One exception is where
“[t]he court finds a compelling reason for determining that termination would be
detrimental” 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).)
                 To apply the statutory exception, the child must “benefit from continuing
the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) The benefit exception “does not permit
a parent who has failed to reunify with an adoptable child to derail an adoption merely by
showing the child would derive some benefit from continuing a relationship maintained
during periods of visitation with the parent.” (In re Jasmine D. (2000) 78 Cal.App.4th
1339, 1348 (Jasmine D.).) To the contrary, once the mandated period for reunification
has passed, the parent bears the burden of proving that termination of parental rights will
be detrimental to the child. (Id. at p. 1350.) After reunification efforts end, the
Legislature’s preferred permanent plan calls for termination of parental rights and
subsequent adoption. (In re Jose V. (1996) 50 Cal.App.4th 1792, 1799; In re Cody
W. (1994) 31 Cal.App.4th 221, 227-231.) “Adoption is the Legislature’s first choice
because it gives the child the best chance at . . . commitment from a responsible
caretaker. [Citations.]” (Jasmine D., at p. 1348.) Thus, the benefit prong of section
366.26, subdivision (c)(1)(B)(i), is satisfied only if “the relationship promotes the well-
being of the child to such a degree as to outweigh the well-being the child would gain in a

                                               18
permanent home with new, adoptive parents.” (In re Autumn H. (1994) 27 Cal.App.4th
567, 575 (Autumn H.).) “In other words, the court balances the strength and quality of
the natural parent/child relationship in a tenuous placement against the security and the
sense of belonging a new family would confer.” (Ibid.) The court’s balancing of
competing considerations must be performed on a case-by-case basis, taking into account
variables such as the child’s age, “‘the portion of the child’s life spent in the parent’s
custody, the “positive” or “negative” effect of interaction between parent and child, and
the child’s particular needs. [Citation.]’” (Jasmine D., at pp. 1349-1350; Autumn H., at
pp. 575-576.)
                 The party seeking to establish the existence of one of the section 366.26,
subdivision (c)(1) exceptions bears the burden to produce that evidence. (In re Megan
S. (2002) 104 Cal.App.4th 247, 252.) The appellate court will not disturb the juvenile
court’s balancing of interests unless the order is not supported by substantial evidence
(In re Cliffton B. (2000) 81 Cal.App.4th 415, 425), or the court abused its discretion
(Jasmine D., supra, 78 Cal.App.4th at p. 1351; see In re Bailey J. (2010) 189 Cal.App.4th
1308, 1314 [substantial evidence standard of review applies to existence of a beneficial
parental or sibling relationship; abuse of discretion standard applies to whether existence
of relationship constitutes a compelling reason for determining that termination would be
detrimental].)
                 Mother argues she maintained regular and consistent visitation with
Timothy and her continuous unmonitored contact with Timothy “necessarily resulted in a
strong bond. Timothy certainly knew his mother and was observed laughing and smiling
at his most recent visit [on September 12]. His behavior during the visits with mother
was void of the aggressive behaviors he displayed in foster care and against the foster
family members.” Mother also states she “consistently visited Timothy, [] she always
had food, toys, and books for him at the visits, loved him deeply, and went above and
beyond to have a chance at reunification. Timothy knew his mother and enjoyed many

                                               19
hours of unmonitored visitation with her during the pendency of the case.” She asserts
Timothy’s behavior in resisting visits with her “was not descriptive of the visitation
during the pendency of the case that started in April 2012 and ended in September 2013”
and “did not represent his desire to see his mother.” Mother also states during the period
Timothy resisted visits (March to May 2013), Timothy was also “experiencing difficulty
communicating and was very aggressive towards his previous foster family and peers at
school while in that home.” She notes the record contains no description of visits after
June 2013 (other than September 6 and 12) and on September 12 Timothy was observed
happy and smiling.
              Substantial evidence supports the court’s finding Timothy’s relationship
with mother did not promote his well-being to the extent it outweighed the benefits he
would gain in a permanent home with adoptive parents. Timothy, four years old at the
time of section 366.26 hearing, had lived in foster homes for more 75 percent of his life.
The record, recounted above, disclosed the lack of emotional interaction between
Timothy and his mother. Not all aspects of Timothy’s visits with his mother were
unpleasant, but evidence of congenial visits fall short of the compelling reasons necessary
to outweigh the stronger preference for adoption. (In re Jasmine D., supra,
78 Cal.App.4th at p. 1350.) The record does not reflect Timothy’s relationship with
mother was so “emotionally significant” that losing that relationship would be
detrimental enough to preclude placement in a permanent home. (In re S.B. (2008)
164 Cal.App.4th 289, 298 [child loved the father, wanted their relationship to continue,
derived some measure of benefit from his visits, and a psychologist testified that due to a
“‘fairly strong’” bond there was a potential for harm to the child in losing the parent-child
relationship].)




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                                       III
                                  DISPOSITION
          The judgment terminating parental rights is affirmed.



                                             ARONSON, J.

WE CONCUR:



MOORE, ACTING P. J.



THOMPSON, J.




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