Filed 10/28/13 In re Joseph C. CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


In re JOSEPH C., a Person Coming Under                               B246596
the Juvenile Court Law.                                              (Los Angeles County
                                                                     Super. Ct. No. CK74712)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

ROBERTO C. et al.,

         Defendants and Appellants.



                   APPEAL from orders of the Superior Court of Los Angeles County, Debra
Losnick, Juvenile Court Referee. Affirmed.
                   Roni Keller, under appointment by the Court of Appeal, for Defendant and
Appellant Roberto C. (Father).
                   Nicole Williams, under appointment by the Court of Appeal, for Defendant
and Appellant Josephine C. (Mother).
                   John F. Krattli, County Counsel, James M. Owens, Assistant County
Counsel, and Jeanette Cauble, Deputy County Counsel, for Plaintiff and Respondent.
                                     INTRODUCTION
         A mother and father appeal from the dependency court‘s termination of their
parental rights as to their son, following a five-year history of both parents‘ failure to
address the sexual abuse and domestic violence that had led to his removal from their
custody. The mother also challenges the dependency court‘s summary denial of her
petition for modification of the court‘s prior orders. We affirm.
                       FACTUAL AND PROCEDURAL SUMMARY
         In September 2008, on behalf of Joseph C. (then 3 years old) and Justine C. (then
14), the Department of Children and Family Services (Department) filed a petition
pursuant to Welfare and Institutions Code section 300, subdivisions (a), (b), (d) and (j),
alleging their parents Roberto C. and Josephine C. had a 14-year history of domestic
violence, including physical and sexual assaults by Roberto against Josephine; Roberto
had physically abused Joseph and Justine, striking their faces and kicking them;
Josephine had failed to protect the children from their father‘s abuse; Roberto had
sexually abused Justine by fondling her breasts and vaginal area as well as digitally
penetrating her; and Joseph was at risk of harm as a result of Roberto‘s sexual abuse of
Justine. (All further undesignated statutory references are to the Welfare and Institutions
Code.)
         When the petition was filed, the children were in a confidential domestic violence
shelter with Josephine. Upon receipt of an immediate referral for the family, an
emergency response worker with the Department met with Josephine and the children at
the Mission Hills Police Station. Josephine had contacted law enforcement to report that
Roberto had touched Justine‘s vagina; after police officers interviewed the family, they
had been taken into protective custody.
         Roberto and Josephine had been married for 15 years and had emigrated from the
Philippines 4 years earlier. Josephine told the social worker she worked several nights a
week, and the children would be home alone with Roberto. Between August 3 and

                                              2
August 11, 2008, Josephine said, Justine disclosed that Roberto had started sexually
abusing Justine while Josephine was at work. Justine told Josephine Roberto would
come into the bathroom while she was bathing and touch her breasts. Justine said the
first time Roberto had sexually abused her was on July 19, 2008, shortly after her 14th
birthday. On September 5, Justine told Josephine Roberto had touched her vagina the
night before. At that time, Josephine called the police.
       During her interview, Josephine told the social worker she and Roberto had a long
history of domestic violence, and when she and the children came to the United States,
the abuse escalated. Roberto screamed at Josephine in front of the children on a daily
basis; on three different occasions, he threatened her with a knife and had ―poked‖ her
with a knife; he threatened her almost every other day and he slapped and kicked the
children.
       During her interview with the social worker (consistent with her statements to law
enforcement), Justine confirmed Roberto had sexually abused her, reporting her father
had come into the bathroom on two occasions while she was taking a shower and touched
her breast. She said he also touched her vagina and buttocks at least five times. Roberto
also touched her inner thighs and, on one occasion, kissed her on the lips while her
mother was sleeping. On September 4, Justine said, Roberto came into her bedroom and
touched her vaginal area under clothes. Before that, she said, he had touched her vagina
over her underwear. She said the sexual abuse occurred mainly at night.
       Justine also reported Roberto would yell at Josephine every day and had
threatened to kill her. She had witnessed Roberto kick and hit her mother and said he hit
and kicked her (Justine) as well as Joseph. She was afraid of Roberto.
       With the help of law enforcement, Josephine applied for an emergency protective
order and later filed for a temporary restraining order against Roberto.




                                             3
       When Roberto was interviewed several days later, he denied any sexual abuse and
said Josephine was coaching Justine to make the allegations as ―an excuse to leave him.‖
He acknowledged they had a ―contentious relationship‖ but denied any physical violence.
       Josephine (but not Roberto) appeared for the initial detention hearing in
September. The dependency court ordered the children detained from Roberto, ordered
monitored visits for him and released the children to Josephine with family maintenance
services for her and the children.
       In mid-October, the Department filed for a protective custody warrant for the
children and an arrest warrant for Josephine, which the dependency court granted. Ten
days earlier, it was reported that Josephine and the children had left the domestic violence
shelter the day before and had not returned.
       The following week, the Department filed an amended petition, adding the
allegation Josephine had abducted the children while staying at a domestic violence
shelter and remained at large. The Department also filed a Jurisdiction/Disposition
report, recommending family reunification services and monitored visitation for both
parents.
       In late October, the Sheriff‘s Department transported Josephine to the dependency
court and the court confirmed the children were safe and in the Department‘s custody.
The children were ordered detained and a pretrial resolution conference was set for mid-
November. At the time set for the conference, the Department‘s dependency investigator
attempted to interview Josephine, but she refused to speak without her attorney present.
Roberto denied any domestic violence and said he had never raped Josephine. He denied
physically abusing the children and refused to discuss the sexual abuse allegations
without his attorney present.
       Roberto said he discovered Josephine‘s whereabouts when he was in his car,
stopped at a red light, when he saw Joseph crossing the street. He said he pulled over and
Josephine and Joseph got into his car right away; he said Josephine had decided she did

                                               4
not want to stay at the shelter. Later, Joseph said, they picked up Justine when her school
day ended, and she was glad to see him. Roberto said he took his family to a family
friend‘s house but went to a paternal aunt‘s home to avoid further accusations. However,
he then moved into the same home as Josephine and the children but said he was never
left alone with Justine and was honoring the dependency court‘s order to keep his
distance from her.
       When Justine was interviewed again, she denied Roberto and Josephine ever hit
each other, denied Roberto hit her, denied he had touched her in a way that made her
uncomfortable and said if he was affectionate with her, it was in an appropriate manner.
She denied anyone had told her to change her answers.
       At the November hearing, the dependency court set an adjudication hearing for
January 2009, and a prerelease investigation hearing for placement with a paternal aunt
(O.D.). Roberto and Josephine were to have monitored visits three times or three hours
per week. The children were placed with O.D. at the end of November.
       In January, the Department submitted a copy of Justine‘s SCAN Evaluation, a
forensic sexual abuse examination conducted in December. According to the report,
Justine told the evaluator Roberto had touched her thighs, chest, legs and underwear over
her clothing while Josephine was not home; she declined a vaginal examination. She said
Roberto found them at the shelter, and the police found them two or three weeks after
that. She said she witnessed domestic violence between her parents and it made her sad
and scared. The adjudication hearing was continued.
       At the continued adjudication hearing in April, the dependency court heard
Justine‘s testimony in chambers. She said she had told her mother in August 2008 that
Roberto had molested her. She said she told Josephine he had touched her chest when
she was showering and touched her on her underwear, almost on her vagina. She said
Josephine did not do anything when Justine told her about the touching the first time, but
called someone after Justine told her the second time. She acknowledged she had told the

                                             5
social worker at the police station her father had touched her and kicked her and her
mother. She had also told the police officer at the police station her father had touched
her.
       Justine testified she, Joseph and their mother went to the shelter after they left the
police station but left when Roberto picked them up and never returned to it. When they
went to their relative‘s home, Roberto, Josephine and Joseph slept in one room and
Justine slept in another room alone. After she left the relative‘s home and went into
emergency foster care, Justine testified, she told a social worker Roberto had not touched
her; after being placed with O.D., she also told a social worker over the phone she did not
remember telling her mother Roberto had touched her breasts. She said she told him that
because his questions made her uncomfortable and she did not want to talk to anyone at
that time.
       Justine then denied Roberto had touched her and said she had told her mother he
had because she wanted her father‘s attention. She said living in the shelter was hard on
her mother. After Roberto picked them up there, Roberto asked her ―why was [she]
doing that so like [she] explained to him.‖ She said he told her he was ―always there for
[her].‖ When they took her and her brother to a foster home, Justine testified, she ―felt
really bad about it, so [she] wanted to change it back.‖ She believed it was her fault the
police had come and taken them to foster care.
       The dependency court stated it did not believe Justine‘s recantation and sustained
the first amended section 300 petition as further amended. After striking the allegation
Roberto had digitally penetrated Justine and finding both parents (not only Josephine)
had abducted the children, the dependency court found the domestic violence and sexual
and physical abuse allegations true. The court declared Justine and Joseph dependents,
removed them from their parents‘ custody and ordered reunification services, with both
Roberto and Josephine to participate in parenting education classes, Josephine to
participate in individual counseling to address case issues, domestic violence and sexual

                                              6
abuse awareness and Roberto to participate in individual counseling to address case
issues, domestic violence and sexual abuse for predators. Visitation remained monitored
with the Department to have discretion to liberalize. The matter was continued for a six-
month review hearing.
       In October, the Department filed its status review report. The children remained
with O.D. The social worker transported Justine to counseling every week and reported
Justine did not want to talk about anything that happened in the past because did not want
to get anyone in trouble. O.D. said she could no longer care for the children.
       Josephine‘s therapist (Virginia Baldioli) expressed concern for Josephine and
believed she was afraid of Roberto. Josephine would only speak in a whisper and said
she could not do anything against Roberto. Ms. Baldioli did not believe Josephine would
be able to keep her or the children safe even if she left Roberto. Josephine was
participating in individual therapy with Alfonso Calabrese. He also expressed concern
about Josephine‘s relationship with Roberto; Josephine said what she says or does
depends on Roberto‘s temper.
       Roberto had participated in one or two individual therapy sessions. According to
his therapist (Steven Monroe), Roberto was in denial of domestic violence or abuse or
neglect in his home.
       Roberto‘s and Josephine‘s visitation remained monitored every Tuesday and
Thursday for an hour and a half or on Saturdays. O.D. monitored the visits (about 47
since the last hearing) and reported no concerns.
       At the October hearing, the Department requested and the dependency court
granted six more months of reunification services.
       In April 2010, the Department reported the children were now in the home of a
nonrelated extended family member (Ruby C.). The children had adjusted very well to
living in her home, were well cared for and appeared very happy. Justine‘s therapist



                                             7
(Susana Kim) reported Justine had been diagnosed with Mood Disorder and Sexual
Abuse of a Child.
          Soon after the last hearing, Josephine had stopped attending her counseling
sessions. When the social worker tried to speak with her about the domestic violence
issues while standing outside, Josephine got very nervous, repeatedly looking up and
down the street. She said she was not sure she could keep Roberto out of the home if the
children were returned to her. The social worker urged her to continue with counseling,
but Josephine said she and Roberto were getting along and she would tell him to stay
away if the children were returned to her. According to Ron Rose of the Center for
Prevention of Family Violence, Josephine continued to attend a domestic violence
support group.
          Roberto was not participating in any sexual abuse perpetrator groups or any other
services as of December. He had been addressing anger issues in individual counseling
but continued to refuse to acknowledge he had been inappropriate with Justine.
          Roberto and Josephine said they had separate residences one mile apart but said
they were still together. Roberto said he would move out if the children were returned to
Josephine. The Department reported no medical concerns for Joseph, who appeared to be
a typical four-year-old, and he was not a Regional Center client.
          Visitation remained monitored, twice a week. Ruby C. said there was a lot of
interaction with Joseph and the children said they ate and watched television during
visits.
          The Department recommended termination of reunification services and set the
matter for a section 366.26 hearing to terminate parental rights. The matter was set for a
contested hearing.
          For the May hearing, the Department reported there had not been much progress
with the parents‘ services. Roberto was attended weekly individual counseling but only



                                               8
recently located a sexual abuse perpetrators group; Josephine was not enrolled in any
services at that time.
       At the contested 12-month status review hearing in May, as requested by Joseph‘s
attorney, the dependency court ordered termination of the parents‘ reunification services
and set a section 366.26 hearing.
       In its report for the September hearing, the Department advised the court the
children remained placed with Ruby C. She and her husband were interested in
becoming the children‘s legal guardian, and the children agreed with that plan. The
hearing was continued for preparation of guardianship documents.
       However, in October, the dependency court was informed that Ruby C. was ill and
could not become the children‘s legal guardian. The court ordered a permanent plan
living arrangement for the children.
       In November, the Department reported the children remained with Ruby C. She
was willing to keep the children with her until the Department could find another
placement but was unable to keep them long term. Joseph was in kindergarten by then
and reportedly a happy, talkative child. The parents still had monitored visitation twice
each week.
       As of the next status review hearing, the Department reported the children were
living in separate foster homes. Ruby C. was unable to wait until a foster home was
available for both children together. When an opening came up in Joseph‘s foster home,
Justine did not want to move there from her placement. Joseph and Justine were able to
see each other during the weekly family visits.
       Joseph was doing well in school and said he liked his new foster home. He
attended individual counseling on a weekly basis and remained developmentally on
track—a soft spoken and quiet but happy child. Joseph enjoyed visits with Roberto and
Josephine but Justine said she was uncomfortable talking with her father. Visitation
remained monitored. Josephine was still not enrolled in counseling and it appeared

                                             9
Roberto‘s phone was disconnected. A foster family agency social worker reported
Roberto had been verbally aggressive with Josephine during a visit in April and said
Josephine had told Justine about Roberto‘s mistress. The Department continued to look
for an adoptive placement where Justine and Joseph could be together.
       As of November, both Justine and Joseph were in new foster homes but still had
not been placed together. Joseph remained in weekly individual counseling and seemed
happier and more talkative in sessions. He said he enjoyed visiting with his parents;
although Josephine attended all of the visits, Roberto did not.
       Joseph was being assessed for adoption by his current foster parents (Ana and
Carlos O.) Justine‘s foster mother said she could remain with her for as long as she
needed. The Department recommended and the dependency court set a section 366.26
hearing for Joseph.
       In February 2012, Josephine filed a section 388 petition as to Joseph (attaching
several supporting documents), alleging she had attended 21 sessions addressing
domestic violence and child abuse and prevention. She said she had completed domestic
violence and parenting classes, had divorced Roberto and was renting a new place for
herself and the children. She said she had never missed a visit, wanted unmonitored
visitation and to regain custody of the children. The dependency court set Josephine‘s
petition for hearing at the time of the section 366.26 hearing in March.
       In its report for the March hearing, the Department said Joseph had been given a
―psych‖ referral following his August medical examination. He had been hospitalized for
a night for vomiting and an unrelated eye infection. He was in second grade with no
special education needs; he continued in therapy. He had been in seven different
placements.
       Joseph then continued to vomit several times a week, complained of stomach
pains and was having trouble in school. His foster parents had become ambivalent about



                                            10
adopting and wanted assurance he did not have serious mental health issues. The
Department requested more time to assess the situation.
         Meanwhile, regarding Josephine‘s section 388 petition for modification of the
court‘s prior orders, the social worker tried to visit Josephine at her new address, but
Josephine said she was moving to another apartment and did not have the address.
Josephine said she would call with it but did not. The social worker went to the address
Josephine had provided to the dependency court but learned she had left that address two
months before. Josephine‘s therapist reported that Josephine had disclosed Roberto had
yelled at her the week before for leaving her drink at a restaurant. The Department
expressed concern at the extent of contact Josephine continued to have with Roberto
although she said she had divorced him, and she had not provided a copy of a divorce
decree. She continued to visit the children with Roberto. Regarding the reported
argument, Josephine said it was just Roberto‘s usual tantrum.‖ The Department did not
believe Josephine was ready for unmonitored visitation.
         Later, the social worker was able to see Josephine‘s ―new address‖ where she said
she lived with another man, and Roberto was okay with that. She said he did not know
her new address but when asked if he still picked her up for visits, Josephine asked if the
court was ―ok with that[.]‖ When the social worker reminded her she had represented she
was keeping the address confidential, Josephine said, ―Ya, ok then he doesn‘t come
here.‖ About the residence where she had not lived for two months, Josephine did not
answer when asked where she had been living instead.
         In March, Justine‘s foster mother reported Justine no longer wanted to visit with
Roberto and was not sure her mother could keep him away from them. Justine said
Roberto still controlled Josephine and they continued to argue. Joseph had not attended
his most recent visit because he was afraid of Roberto and did not want to see his parents
argue.



                                              11
       The Department noted the case had been pending since September 2008, but the
parents had made ―little or no progress towards their case plan goals.‖ Josephine, who
was still unsure about the sexual abuse allegations, had been evasive about her living
arrangements and continued to allow Roberto to verbally and emotionally abuse her.
       Josephine withdrew her section 388 petition and the matter was continued for two
months. The Department was ordered to arrange separate visits for Josephine and
Roberto with the children, with discretion to liberalize Josephine‘s visits.
       In May, the Department filed a supplemental report indicating Joseph had been
referred for a psychiatric and psychological evaluation. His therapist opined Joseph‘s
current symptoms of enuresis and vomiting were related to anxiety, which had increased
because Joseph was being bullied at school. Upon learning Joseph might need to attend
therapy more than once a week, his foster parents said they could not meet his needs
because of their work schedule. Joseph spoke English but his foster parents‘ English was
limited so communication was difficult. They said Joseph could stay in their home until
he had been evaluated.
       Joseph said he wanted to be in another foster home close to Justine. The
Department recommended a continuance to identify an adoptive home for Joseph. The
section 366.26 hearing was continued to September.
       Over his parents‘ objection, the dependency court ordered the administration of
psychotropic medication previously approved by the court, noting the documentation
indicated Joseph needed it and said he was doing fine with it.
       As of the June status review report, Joseph remained with Ana and Carlos and
wanted them to adopt him. He understood he could not live with Josephine at that time,
but said he wanted to live with her when he turned 17.
       After talking with his wife, Josephine‘s cousin R.T. said he would adopt Joseph,
then move to the Philippines and place Joseph with his maternal grandmother. When he
was told he would have to be the one to care for Joseph if he adopted him, R.T. said

                                             12
he could not adopt him. Josephine knew of and did not see any problem with the plan,
saying ―Then I can go to there too and live with him.‖
       In June, the Department was ordered to address the possibility of unmonitored
visits for Josephine with Justine but reported in July Josephine would raise case issues
and spoke negatively about Roberto during the monitored visits. Roberto and Josephine
gave the social worker declarations denying the domestic violence (Josephine said she
had lied to qualify for free shelter) and sexual abuse. Justine told the social worker
Josephine did not want to accept that the abuse had happened, and the Department
recommended against unmonitored visitation.
       In a ―Last Minute Information‖ report, the Department informed the dependency
court it had received an affidavit—allegedly from Justine, stating she had lied about the
abuse and had been tricked into saying things that were not true by the court. Contrary to
the affidavit, however, Justine‘s foster mother told the social worker Justine had told her
about the abuse; she did not know anything about the affidavit and said Justine always
gave her foster mother anything she wanted to be mailed. The Department suspected the
parents had forged the document.
       In July, through her attorney, Justine told the court she had signed and sent the
affidavit, but the dependency court had questions about its authenticity. Justine was
happy in her current placement, enjoyed sibling visits with Joseph and wanted to remain
in her placement. Joseph‘s attorney indicated Joseph also wanted more visits so the
dependency court ordered sibling visits at least three times per month or more.
       In September, the Department reported Joseph (now seven) had been referred to
the placement and recruitment unit in June to find a new placement. Joseph had been
diagnosed with generalized anxiety disorder and enuresis, and his psychological
evaluation was forwarded to help the placement unit to find an appropriate match for
Joseph. In July, the placement unit had located Mr. and Mrs. K., a ―fost-adopt‖ family
who appeared to be an appropriate match. Joseph was introduced to Mr. and Mrs. K. at a

                                             13
pace appropriate with his emotional needs and in early August, he was placed in their
home. He was happy there and wanted to live there forever. The Department assessed
Joseph as adoptable and recommended terminating parental rights; the adoption planning
recommendation was set for a contested hearing.
       For the contested hearing, the Department reported that Mr. and Mrs. K. had an
approved adoption study; Joseph continued to have visits with Roberto and Josephine,
which caused him emotional distress as evidenced by enuresis following the visits and at
night. Josephine and Roberto submitted declarations from themselves and others,
including a legal secretary, O.D. and a paternal uncle, disputing the abuse allegations and
requesting denial of the adoption plan.
       In November, Josephine filed another section 388 petition, alleging she had
separated from Roberto and had been living apart from him for almost a year. She said
she had finished domestic violence classes, had over 40 sessions of individual counseling,
attended some group counseling and had visited Joseph consistently. She provided no
documentation in support of her petition. She requested more reunification services or
Joseph‘s return to her care, asserting she and Joseph had a strong bond that would be
destroyed by adoption and said he had special emotional needs; she said she would
provide a stable home for him. The dependency court denied Josephine‘s petition
without a hearing, stating that Josephine had not identified any new evidence or a change
of circumstances and the proposed order was not in Joseph‘s best interests.
       The Department reported that, after the July hearing, Justine had told the social
worker she had lied about writing the affidavit and she had never seen it before;
Josephine had told Justine about the document and told her to agree to all of it so Joseph
would not be adopted. Although she had been instructed to speak English during the
monitored visits, Josephine had told her about the document in Tagalog during a visit.
When the social worker asked Justine if Roberto had sexually abused her, she said,
―Yes[,] he did. If it were not true then why would I not want to have visits with him. It

                                            14
is true, but they wanted me to lie about it.‖ Roberto and Josephine had disappointed
Joseph with promises they did not keep; for example, they promised to take him to
Disneyland for his birthday but failed to show up for that visit.
       When the social worker told Roberto and Josephine she knew Justine had not
written any affidavit, Roberto said she had written it; Josephine said a friend had written
it but Justine had signed it. When the social worker said she knew Josephine had
pressured Justine to agree with the affidavit and it would not change anything, Roberto
started yelling at her, got close to her and pointed his finger at her, calling her a liar and
telling her she had better ―watch out.‖ Josephine looked down at the floor, saying, ―No,
no, no.‖ When Roberto left, Josephine apologized but insisted Justine had written the
affidavit. She said, ―I have suffered so much because of this, he does this and I suffer.
These past years have been very hard on me, on my job.‖ When the social worker said
the years had been hard on the children and she had been unfair to Justine in forcing her
to deny the allegations, Josephine could not understand why Roberto had never been
arrested if the allegations were true. Roberto returned to the room at that point, and when
a security guard followed, Roberto yelled at him. Later, Roberto called to apologize,
claiming he never acted like that and just got mad.
       Regarding the process of introducing Joseph to Mr. and Mrs. K., the Department
reported Joseph had had a monitored visit with them and their seven-year-old son in July.
He was hesitant at first, but with Mr. K.‘s encouragement, became comfortable and
played with the family. He really liked the family and wanted to move to their home. He
asked for his parents‘ contact information to stay in touch with them. At another visit,
Joseph appeared emotionally stable and excited to have a family. The social worker was
present for Joseph‘s first overnight visit with the K. family, and they asked appropriate
questions to help Joseph with his routine and enuresis. His foster mother told the social
worker Joseph had been ―trying really hard to make sure he does not wet his bed at night‖



                                              15
so he would not have to wear a diaper when he spent the night with the prospective
adoptive parents. There were no problems with the visit.
       When Mr. and Mrs. K. spoke with the social worker in August, they said Joseph
(now placed with them) was doing very well and they were very happy to have him.
They were working with him so when he started school, he would not have accidents but
said they would send an extra set of clothes with him just in case. During dinner the
night before, he told them he wanted his last name to be K. When the social worker
spoke with Joseph alone, he appeared very happy and comfortable. He showed her his
new clothes, pictures and supplies. He referred to Mr. and Mrs. K as ―mom‖ and ―dad‖
and said he now had a brother.
       The social worker met with Justine in August. She was very happy for Joseph in
his new home with people interested in adopting him. She said she had had a bad
childhood and understood why he was being adopted. She was happy in her foster home.
She said, ―If I was still living with them, I would definitely not be happy. I‘m happy here
and I‘m glad that Joseph has a good home too.‖ By all accounts, Joseph was increasingly
happy and progressing well. Justine who was visiting with Joseph once a month because
of her busy scheduled noted how happy Joseph was and was ―ok with‖ Joseph being
adopted because the K.‘s were a good family. She was happy they were going to let her
visit Joseph. Mrs. K. was a teacher at Joseph‘s school and said he was above average in
math and science; she doubted he needed Regional Center services as he was not
developmentally delayed. Joseph was happy with the K.‘s, and the K.‘s planned to adopt
him.
       In October, Josephine met with the social worker and said she had complied with
the court‘s orders and would not let her children be adopted. Roberto said he had not
completed his case plan because he could not afford it; the social worker provided
referrals. After an October visit with his parents, the K.‘s reported Joseph had regressed
and had been wetting his pants. Mr. K. communicated with the social worker on a daily

                                            16
basis about Joseph, and he had made appointments for Joseph with a urologist and a
psychiatrist.
       When the social worker visited Joseph in December, he seemed to be doing well
and was not having any problems. He was seeing a dentist to address care he had not
received in the preceding years and was going to the pediatrician to see if he had food
allergies. He had joined cub scouts and was playing basketball at the YMCA. He had
not visited with Justine or his parents that month.
       Joseph reportedly had a strong bond with the K.‘s. He still wanted them to adopt
him and they wished to adopt him as well.
       On January 8, 2013, at the contested section 366.26 hearing as to Joseph, Justine‘s
counsel advised the court she would not be participating in the hearing. Other than its
reports prepared prior to and for the hearing date, the Department presented no further
evidence. Roberto testified he had last visited Joseph in October. He said he visited once
a month for six months, which he said was as much as ―they‖ allowed. He said he never
missed a visit. He talked to Joseph, showed him pictures and played with toys.
       Josephine said Joseph was removed from her custody when he was three. Before
October, she said, she had visited Joseph once a week and Justine had been at the visits,
but after he was placed with the K.‘s, visits were reduced to once a month. She said she
had a very close relationship with Joseph.
       In closing arguments, Roberto‘s counsel argued the beneficial parent-child
exception applied and breaking Roberto‘s bond with Joseph would be detrimental. He
questioned whether the K.‘s would continue to care for Joseph if he did not qualify for
higher (―F-rate‖) funding. Josephine‘s counsel also argued the parent-child exception
applied in Josephine‘s case as well. Joseph‘s counsel asked the dependency court to
follow the Department‘s recommendation. Although Joseph had anxiety, he said it was
understandable considering all he had experienced in his life. He was now in a stable
home with foster parents willing to adopt him. Even if Joseph‘s parents had visited more,

                                             17
visits were monitored, and any bond was of the sort shared by any number of people but
did not outweigh the permanence Joseph had a chance to achieve if freed for adoption.
The Department joined in these comments, emphasized how well Joseph was doing with
the K.‘s and they occupied the parental role in Joseph‘s life.
       Noting that Joseph was doing extremely well with the K.‘s, the dependency court
found by clear and convincing evidence Joseph was adoptable and, finding no exception
applied to impede the adoption, terminated Roberto‘s and Josephine‘s parental rights.
       Both Josephine and Roberto appeal.1
                                      DISCUSSION
The Dependency Court Did Not Abuse Its Discretion in Denying Josephine’s
Petition for Modification of the Court’s Prior Orders.
       According to Josephine, the trial court abused its discretion in summarily denying
her section 388 petition. We disagree.
Standard of Review and Applicable Law
       Pursuant to subdivision (a) of section 388, a parent may petition the dependency
court for a change of order ―upon grounds of change of circumstance or new evidence[.]‖
The dependency court shall order a hearing if it appears the best interest of the child will
be promoted by the proposed change of order. (§ 388, subd. (d).) If not, the court may
also summarily deny a section 388 petition ex parte. (Cal. Rules of Court, rule
5.570(d)(1).) The petition must be considered within the context of the entirety of the
dependency court proceedings. (In re Marilyn H. (1993) 5 Cal.4th 295, 307.) To trigger


1      According to the June 17, 2013 minute order, Joseph and the K.s were receiving
permanent planning services, and the matter was set for further review in November. It
was anticipated that Joseph‘s adoption would be finalized by that date, and it was further
ordered that Joseph would continue to receive age appropriate mental health services and
have sibling visits with Justine (who was also in a permanent placement). Pursuant to
Evidence Code sections 452, subdivision (d), and 459, subdivision (a), we take judicial
notice of this order. (In re C.C. (2009) 172 Cal.App.4th 1481, 1487, fn. 3.)

                                             18
a hearing, the parent must make a prima facie showing that there is a genuine change of
circumstances or new evidence and that changing the existing order is in the child‘s best
interests. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)
       A dependency court‘s denial of a section 388 petition without a hearing is
reviewed for an abuse of discretion. (In re Anthony W., supra, 87 Cal.App.4th at p. 250.)
       In a prior section 388 petition (February 3, 2012), Josephine claimed she had
attended 21 individual counseling sessions, had completed domestic violence and
parenting classes and was living apart from Roberto; she also said she had consistently
visited Joseph.2 The dependency court set her petition for hearing, but before the
dependency court could rule on it, Josephine withdrew the petition on March 12.
       Notably, it had been reported in the Department‘s interim review report for the
March 12 hearing that the truth of Josephine‘s claim she lived apart from Roberto
appeared questionable. She was evasive about where she was living and, even if she had
a separate residence, Roberto knew about it although it was supposed to have remained
confidential and he had continuing contact with her. Moreover, Roberto still controlled
Josephine and they argued during monitored visits with the children. Joseph had not
attended his last visit because he was ―afraid of [Roberto] and did not want to see
[Roberto and Josephine] argue with each other.‖ Furthermore, the case had been pending
since September 2008 but Josephine was still unsure whether the sustained allegations of
Roberto‘s sexual abuse of Justine were true. Therefore, the record did not support the


2       In support of her first petition, Josephine submitted documents including a letter
dated November 15, 2011, regarding four individual counseling session she had attended
in March 2010, in which the therapist said Josephine ―appeared very intimidated and
scared of her husband who continued to emotionally, verbally and economically abus[e]
her[; a]though [she] was getting more insight about her victimization, her helplessness at
that time prevented her from totally being prepared to protect herself and her children
from further abuse.‖ Josephine submitted another letter documenting her attendance at
21 sessions beginning on April 13, 2011, focusing on domestic violence, child abuse and
prevention and parenting skills, and indicating Josephine was ―very cooperative‖ and
―eager to participate.‖
                                               19
conclusion Josephine was in any better position to protect Joseph from Roberto than
when the children were first detained.
       Then, eight months later (on November 20), Josephine filed another section 388
petition—with no accompanying documentation to support her claim of changed
circumstances this time—and with allegations almost identical to those set forth in her
prior petition. By this time, it had been more than four years since the children were
initially detained and more than two years after reunification services were terminated.
Josephine said it was in Joseph‘s best interest to return Joseph to her or to provide her
with more reunification services because Joseph had a ―strong bond‖ with her that would
be destroyed if he were adopted, he had ―special emotional needs‖ and had only been in
his current foster home for a few months.
       According to the Department‘s status review report dated June 19, Josephine‘s
visits were still monitored. As of the Department‘s July 10 progress report, Josephine
continued to deny domestic violence and sexual abuse had even occurred. Instead, she
sought to have her cousin take Joseph back to the Philippines so she could be with him
there and manipulated Justine into recanting the sustained sexual abuse allegations, and it
appeared she and Roberto were still together although he had not addressed his domestic
violence issues in therapy and continued to have anger issues.
       Josephine failed to show how maintaining the bond she had with Joseph was in
Joseph‘s best interest. ―The presumption favoring natural parents by itself does not
satisfy the best interests prong of section 388.‖ (In re Justice P. (2004) 123 Cal.App.4th
181, 192.) In determining whether the requested change is in the child‘s best interests,
the child‘s interest in stability must be ―the court‘s foremost concern.‖ (In re Anthony
W., supra, 87 Cal.App.4th at p. 251.) Although Joseph had only been in his current foster
home a short time and had special needs, he identified Mr. and Mrs. K as his father and
mother and spoke of their son as his brother; Joseph told the social worker he ―would like
to ‗live with them forever.‘‖ Mr. and Mrs. K. had taken steps to address Joseph‘s special

                                             20
needs by initiating the process of enrolling him in counseling. On this record, we find no
abuse of discretion in the summary denial of Josephine‘s second section 388 petition. (In
re Anthony W., supra, 87 Cal.App.4th at p. 250.)


The Record Supports the Dependency Court’s Termination of Josephine’s and
Roberto’s Parental Rights.
Substantial Evidence Supports the Dependency Court’s Determination Joseph Is
Adoptable.
          According to Roberto, the record does not support the dependency court‘s
determination Joseph is adoptable. As an appellant, it is Roberto‘s burden to demonstrate
the evidence was insufficient to support the dependency court‘s conclusion (In re
Geoffrey G. (1979) 98 Cal.App.3d 412, 420), but he has failed to do so.
          Clear and convincing evidence that it is likely ―adoption will be realized within a
reasonable time‖ is required for a dependency court to find a child adoptable. (In re
Jennilee T. (1992) 3 Cal.App.4th 212, 223.) It is not necessary, however, for an adoptive
home to have been identified in order to terminate parental rights. (In re I.I. (2008) 168
Cal.App.4th 857, 870.) The question of adoptability focuses on the child‘s condition and
whether his age or his physical or emotional condition would make it difficult to find
someone willing to adopt the child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.)
Even if a child has special needs, an adoptability finding is properly supported if a
prospective adoptive parent has been identified and it is reasonably likely the child will
be adopted within a reasonable time. (In re K.B. (2009) 173 Cal.App.4th 1275, 1292-
1293; and see In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154 [the fact a prospective
adoptive parent expresses an interest in adopting a child provides evidence the child‘s
condition is not likely to dissuade others from adopting the child within a reasonable
time].)



                                               21
       Joseph was seven years old when he was referred to the Placement and
Recruitment Unit (PRU) to find a new placement for him on June 8, 2012, but it was only
one month later (on July 12) that Mr. and Mrs. K. were identified as a ―fost-adopt family‖
for Joseph. On March 12, 2012, the Department had reported that Joseph was in therapy,
but he had no developmental delays, was not a Regional Center client and had no special
education needs. In addition to Mr. and Mrs. K, another family had expressed interest in
adopted Joseph, and the adoption social worker identified Joseph as adoptable. Such
evidence supports the finding Joseph was in fact adoptable. (In re Beatrice M. (1994) 29
Cal.App.4th 1411, 1420-1421; see In re Lukas B., supra, 79 Cal.App.4th at p. 1154; and
see In re Sarah M., supra, 2 Cal.App.4th at p. 1650.)
       Furthermore, although Joseph had received a diagnosis of Anxiety Disorder and
Enuresis—after suffering from a lack of permanency for the past five years, the record
nevertheless supports the conclusion Joseph was adoptable. (See In re Lukas B., supra,
79 Cal.App.4th at p. 1151 [although the child ―had begun frequently urinating on herself
and at times would regurgitate when she was not ill,‖ she was adoptable].) The record
supports the conclusion that Joseph was a happy child, but he developed emotional issues
after being moved from placement to placement. These issues were being addressed
through medication and services to assist him with both enuresis and anxiety, and he was
motivated to resolve these issues. In fact, Mr. and Mrs. K. reported Joseph had been
making progress in their home and reiterated their interest in adopting him and providing
him with the stability he needed. It follows that the dependency court‘s finding that
Joseph was adoptable is supported by substantial evidence. (In re Lukas B., supra, 79
Cal.App.4th at p. 1154.)

The Beneficial Parent-Child Relationship Exception and the Standard of Review.
       Having properly determined Joseph was adoptable, the dependency court was
compelled, absent a showing of exceptional circumstances, to make findings and orders
consistent with the strong legislative preference for adoption. (See In re Jose V. (1996)
                                            22
50 Cal.App.4th 1792, 1799 [―Once the court determines adoption is feasible, the less
desirable and less permanent alternatives of guardianship and long-term foster care need
not be pursued‖].) To defeat the legislative preference for adoption, the parent has the
burden to demonstrate exceptional circumstances exist. (In re Lorenzo C. (1997) 54
Cal.App.4th 1330, 1343-1345.)
       Section 366.26 provides an exception to the general legislative preference for
adoption when ―[t]he court finds a compelling reason for determining that termination
would be detrimental to the child‖ (§ 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).) 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.‖ (In re Autumn H. (1994) 27
Cal.App.4th 567, 575; see also In re Derek W. (1999) 73 Cal.App.4th 823, 826 [―parent
has the burden to show that the statutory exception applies‖].) 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.‖ (In re
Andrea R. (1999) 75 Cal.App.4th 1093, 1108; see In re Beatrice M., supra, 29
Cal.App.4th at pp. 1418–1419.) 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.‖ (In re Casey D. (1999) 70
Cal.App.4th 38, 51.) Factors considered in balancing the strength and nature of the
parent/child relationship versus the security of a permanent home are: (1) the child‘s age,
(2) the amount of time the child spent in the parent‘s custody, (3) the positive or negative
effect of the interaction between parent and child and (4) the child‘s individual needs. (In
re Angel B. (2002) 97 Cal.App.4th 454, 467, fn. 7.) To overcome the preference for
adoption, a parent must demonstrate that severing his or her parental rights would deprive

                                             23
the child ―of a substantial, positive emotional attachment such that the child would be
greatly harmed.‖ (Id. at p. 466, original italics.) 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.‖ (In re Jasmine D.
(2000) 78 Cal.App.4th 1339, 1350.)
       As we stated in In re K.P. (2012) 203 Cal.App.4th 614, 621-622: ―For years
California courts have diverged in their view about the applicable standard of review for
an appellate challenge to a juvenile court ruling rejecting a claim that an adoption
exception applies. Most courts have applied the substantial evidence standard of review
to this determination (see, e.g., In re Autumn H., supra, 27 Cal.App.4th at p. 576; In re L.
Y. L. (2002) 101 Cal.App.4th 942, 953), although at least one court has concluded that it
is properly reviewed for an abuse of discretion (In re Jasmine D., supra, 78 Cal.App.4th
at p. 1351). Recently, the Sixth Appellate District has cogently expressed the view that
the review of an adoption exception incorporates both the substantial evidence and the
abuse of discretion standards of review. (In re Bailey J. (2010) 189 Cal.App.4th 1308,
1314–1315 (Bailey J.).) The Bailey J. court observed that the juvenile court‘s decision
whether an adoption exception applies involves two component determinations: a factual
and a discretionary one. The first determination—most commonly whether a beneficial
parental or sibling relationship exists, although section 366.26 does contain other
exceptions—is, because of its factual nature, properly reviewed for substantial evidence.
(Id. at p. 1314.) The second determination in the exception analysis is whether the
existence of that relationship or other specified statutory circumstance constitutes ―a
compelling reason for determining that termination would be detrimental to the child.‖ (§
366.26, subd. (c)(1)(B); see Bailey J., supra, 189 Cal.App.4th at p. 1315.) This
―‗quintessentially‘ discretionary decision, which calls for the juvenile court to determine
the importance of the relationship in terms of the detrimental impact that its severance
can be expected to have on the child and to weigh that against the benefit to the child of

                                              24
adoption,‖ is appropriately reviewed under the deferential abuse of discretion standard.
(Bailey J., supra, 189 Cal.App.4th at p. 1315.) We find the Bailey J. approach persuasive
and apply its composite standard of review here.‖
Roberto and Josephine Have Failed to Demonstrate that Termination of Their
Parental Rights Would Be Detrimental to Joseph.

Josephine Has Failed to Demonstrate that a Continued Relationship with her
Outweighed the Benefit the Children Would Gain from a Permanent Adoptive Home.


       Regarding the first prong of the beneficial parent-child relationship exception
(regular visitation), generally speaking, Josephine maintained consistent contact with
Joseph, but all visits were still monitored. (See In re Casey D., supra, 70 Cal.App.4th at
p. 51 [noting difficulty of demonstrating beneficial parent-child relationship when visits
remain supervised].)
       Moreover, Josephine failed to meet her burden as to the second prong of the
exception. Joseph was born in April 2005 but was detained from Josephine‘s custody in
October 2008 and remained out of her custody until January 2013 when her parental
rights were terminated. Therefore, he lived with Josephine until he was three and a half,
but remained out of her custody for the next four years before the termination of
Josephine‘s parental rights. In addition, during visits with Joseph, Roberto and Josephine
continued to argue and he would experience enuresis following visits. Josephine had
promised Joseph she would take him to Disneyland for his birthday but did not show up
for the visit. Although he held his parents tight when visitation with his parents ended,
there was no indication he had difficulty separating. Furthermore, while Joseph had
some special needs, it was Mr. and Mrs. K. who attended to them—arranging for therapy,
taking him to a psychiatrist and urologist to address his anxiety and enuresis, taking to the
pediatrician to rule out allergies, taking care of his teeth. It was Mr. and Mrs. K who
ensured he attended school and helped him to join in extracurricular activities. Josephine
had not cared for Joseph for more than half his life and did not occupy a parental role in
                                            25
his life; Joseph wanted Mr. and Mrs. K. to adopt him and was excited to be part of their
family. Josephine has failed to demonstrate error in the dependency court‘s rejection of
her claim the beneficial parent-child relationship exception applied in this case. (In re
Andrea M. (1999) 75 Cal.App.4th 1093, 1108; In re Angel B., supra, 97 Cal.App.4th at p.
466.) Even assuming substantial evidence would have supported the conclusion a
beneficial parent-child relationship exists, the dependency court did not abuse its
discretion in concluding the importance of Joseph‘s relationship with Josephine ―in terms
of the detrimental impact its severance can be expected to have on [Joseph]‖ did not
outweigh the benefit to Joseph of being adopted. (Bailey J., supra, 189 Cal.App.4th at p.
1315; In re K.P., supra, 203 Cal.App.4th 613, 621-622.)


Roberto Failed to Demonstrate It Would Be Detrimental to Joseph to Terminate His
Parental Rights.
        Roberto visited along with Josephine, but his relationship with Joseph was even
more difficult than Joseph‘s relationship with Josephine. On at least one occasion,
Joseph did not attend a visit because he said he was afraid of Roberto, and Roberto failed
to demonstrate he occupied a parental role in Joseph‘s life. Meanwhile, as already
described, Joseph clearly wanted Mr. and Mrs. K. to adopt him, and the record supports
the dependency court‘s determination as to Roberto. (In re Andrea M., supra, 75
Cal.App.4th at p. 1108; In re Angel B., supra, 97 Cal.App.4th at p. 466; Bailey J., supra,
189 Cal.App.4th at p. 1315; In re K.P., supra, 203 Cal.App.4th 613, 621-622.)
The Sibling Exception to Termination of Parental Rights Did Not Apply in this
Case.
        Pursuant to subdivision (c)(1)(B)(v) of section 366.26, the dependency court may
determine it would be detrimental to terminate parental rights if there would be
substantial interference with a child‘s sibling relationship. Under this provision, the
dependency court is to consider the nature of the sibling relationship, whether the child

                                             26
was raised with the sibling in the same home, whether the children share common
experiences, whether the child has a close and strong bond with the sibling and whether
ongoing contact is in the child‘s best interests when weighed against the benefit of a
secure, adoptive home. (§ 366.26, subd. (c)(1)(B)(v); In re L.Y.L., supra, 101
Cal.App.4th 942, 951.)
       Justine and Joseph did not live together after the placement with Ruby C. failed.
Justine‘s move from the foster home where she and Joseph had lived together was very
difficult and confusing for Joseph and he worried he would have to move; when he was
assured he could remain where he was, he improved. Justine recognized Joseph‘s need
for stability, saw that he was happy with Mr. and Mrs. K. and was happy for him. She
did not seek to interfere with Joseph‘s chance for permanence at the hearing to terminate
parental rights, and it appears the siblings may well enjoy continuing contact. In any
case, the record does not support the conclusion (as Josephine urges) the trial court erred
in rejecting the application of the beneficial sibling relationship exception to the
termination of parental rights in this case. (See Bailey J., supra, 189 Cal.App.4th at p.
1315; In re K.P., supra, 203 Cal.App.4th at pp. 621-622.)
                                      DISPOSITION
       The orders are affirmed.



                                                                        WOODS, J.
We concur:




              PERLUSS, P. J.                                            ZELON, J.




                                             27
