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In re V.V. CA4/2 (2025) · DecisionDepot
/ California Court of Appeal In re V.V. CA4/2 Unpublished Filed 8/21/25 In re V.V. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOURTH APPELLATE DISTRICT DIVISION TWO In re V.V., a Person Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E085535 Plaintiff and Respondent, (Super.Ct.No. J301608)
v. OPINION
J.S. et al.,
Defendants and Appellants.
APPEAL from the Superior Court of San Bernardino County. Lynn M. Poncin,
Judge. Affirmed.
Jenie S. Chang, under appointment by the Court of Appeal, for Defendant and
Appellant J.S.
Emily Uhre, under appointment by the Court of Appeal, for Defendant and
Appellant I.V.
1
Tom Bunton, County Counsel, Landon Villavaso, Deputy County Counsel for
Plaintiff and Respondent.
Defendant and appellant J.S. (Mother) appeals from the juvenile court’s order
terminating her parental rights to V.V. (a boy, born in Jan. 2024; hereafter, Minor). (See
Welf. & Inst. Code, § 366.26.1) Mother contends the juvenile court abused its discretion
by denying her modification petition (§ 388) without an evidentiary hearing. Mother also
More from California Court of Appeal Source: opinion data from the Free Law Project / CourtListener (public-domain court records). DecisionDepot is for informational use only and is not legal advice — verify against the official reporter before relying on any text or AI-generated summary.
argues she satisfied the benefit exception to termination of parental rights. Defendant and
appellant I.V. (Father) joins in Mother’s arguments; he adds none of his own, but requests
reinstatement of his parental rights with Mother’s, if she prevails. As we explain post, we
find no merit in Mother’s contentions. We therefore affirm the juvenile court’s order.
BACKGROUND Mother came to the attention of plaintiff and respondent San Bernardino County
Children and Family Services (the Department) approximately 20 months before Minor
was born, based on allegations of severe neglect involving her then one-year-old son,
M.M. M.M.’s father brought him to a clinic when Mother refused to do so despite the
child’s prolonged suffering from fevers, congestion, coughing, and constipation for
weeks. M.M. had gained less than 10 pounds since birth. He was diagnosed with “non-
organ failure to thrive.” Mother had not taken M.M. to wellness checks or doctor
appointments; she and the child’s father also had a history of domestic violence. The
juvenile court sustained the Department’s dependency petition, ordering reunification
1 All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
services for the parents, which the court later terminated for the father for lack of
Over the course of almost a year, Mother made sufficient progress in her services
to transition to a family maintenance plan. The court, however, warned Mother in
returning M.M. to her care that she was required to report to the Department “any
changes in family composition, [her] residence or any adult residing in the home.”
Mother ignored the requirement. She also violated visitation restrictions concerning
The Department became aware of Minor’s birth when a social worker made a
monthly family maintenance visit to Mother’s apartment. An unknown man, whom
Mother later said was her boyfriend, answered the door; the worker heard a baby crying
inside, but Mother was not home. When Mother returned, she admitted she had recently
given birth to Minor. She had previously denied for months that she was pregnant. She
would not provide a name or date of birth for Minor, nor identify Minor’s father, nor
furnish any identifying information about the boyfriend. When the social worker
reminded Mother of her obligation to keep the Department informed of household
changes or any adult living in the home, Mother became upset and raised her voice in
disagreement. She claimed she did not have to disclose anything related to Minor
because the dependency involved M.M., not Minor.
The next month, the Department learned Father’s identity and that a search
warrant related to Father’s arrest had been executed at Mother’s apartment. The officers
found ammunition in the home, as well as shell casings, bail paperwork, and a carrying
case for an automatic rifle. The police report logged 28 rounds of ammunition from
Minor’s room, but Mother denied they were discovered there. Mother also minimized the
items recovered, asserting that only a necklace, paperwork, and a plastic scope for a toy
gun were found. A background check revealed Father had an extensive and violent
Mother claimed she no longer associated with Father, but that was untrue. Mother
moved, but did not inform the social worker, who found her old apartment vacant. The
social worker learned in attempting a monthly visit at Mother’s new residence that
Mother had departed earlier with Father, taking Minor and M.M. out with them. The
social worker questioned whether Mother benefited from the services she had received.
The worker noted the Department’s concern regarding Mother’s “lack of protective
capacity,” “uncooperative” behavior, and “disregard [of] Court orders.” The Department
obtained and executed a protective custody warrant for Minor and M.M in July 2024.
Mother acted erratically when the warrant was served; she disclaimed responsibility and
asserted to the assisting peace officer that the social worker fabricated lies against her.
The Department filed a dependency petition as to Minor. (§ 300, subd. (b)(1)
[failure to protect], (j) [abuse of sibling].) At the detention hearing, the juvenile court
upheld Minor’s continued placement in foster care. Concurrent planning in M.M.’s
separate dependency proceedings resumed following Mother’s failed attempt at family
maintenance. Minor and M.M. remained placed together in a foster care resource family
Investigation revealed that Father’s criminal history included a conviction for
robbery (Pen. Code, § 211) and further charges or convictions for robbery and assault
with a deadly weapon (Pen. Code, §§ 211, 245, subd. (a)(1))), with enhancement
allegations for having committed one or more prior serious or violent felony offenses
(see, e.g., Pen. Code, § 667, subd. (a)(1)). Father also had recently been arrested for
battery with serious bodily injury (Pen. Code, § 243, subd. (d)) and for elder or dependent
adult abuse likely to cause great bodily injury or death (Pen. Code, § 368, subd. (b)(1)).
Father later acknowledged he was convicted of an unspecified prior violent felony in
Mother’s reunification and family maintenance services had included parenting
education and counseling, but, according to the Department, Mother’s actions showed she
had not learned to protect the children. In its report for the jurisdiction and disposition
hearing, the Department recommended against reunification services for Mother because
Mother failed to successfully reunify with Minor’s sibling, M.M., within statutory time
limits. Despite the prior services, Mother “did not demonstrate behavioral changes that
would guarantee the safety and well being of [Minor] if left under [her] care.”
In early August 2024, at a supervised visit a month before the jurisdiction hearing,
Mother erupted in rage and threatened a social worker. The visit started poorly, with
Mother refusing to review or sign a release regarding renewed reunification services
pending the disposition hearing. Mother rebuffed the social worker’s attempt to explain
the necessity of the release. The visit devolved further when the children’s caregiver
arrived at the end of the visit; M.M. began to cry, yell and hold on to Mother. The social
worker agreed that Mother could walk M.M. to the lobby, but then Mother ignored the
lobby restriction and continued with M.M. out to the parking lot. Mother attempted to
place M.M. into his car seat in the caregiver’s car, but M.M. rejected her assistance.
Mother became erratic and upset. She insulted the social worker with sexually
charged threats. Mother advanced on the social worker and blocked her path when the
worker tried to move away. She threatened the worker: “I’m going to fuck you up” and
“Don’t let me see you on [the] streets.” Fearful for her safety, the social worker obtained
the assistance of a security officer to end the visit and law enforcement was called.
Mother still received the rest of her visits in August, which remained monitored and were
without incident; she was attentive to the needs of both children.
On September 12, 2024, the juvenile court held a combined jurisdiction and
disposition hearing. Minor’s counsel recommended that the juvenile court sustain the
petition. Following argument by the Department, Mother, and Father, the court found the
following allegations true and assumed dependency jurisdiction over Minor. Regarding
Mother’s failure to protect Minor (§ 300, subd. (b)), the court found Mother had a history
of engaging in domestic violence that “interferes with her ability to adequately parent the
child,” placing Minor “at risk of abuse and/or neglect.” Also pertinent on that ground, the
court found Father engaged in “extensive” criminal activity. The court further
highlighted Mother’s tendency towards violence in sustaining jurisdiction based on abuse
of a sibling. (§ 300, subd. (j).) The court found that the “concerns presented in [M.M.]’s
removal” and concurrent proceedings were similarly based on domestic violence, placing
Minor too, like M.M., “at significant risk of abuse and/or neglect.”
At the disposition hearing, Minor’s counsel concurred in the Department’s
recommendation against reunification services. Minor’s counsel explained regarding
Mother: “Mother’s violations of the Court orders and her bad behavior in [both] her
children’s cases [amounts to] gross noncompliance with the Court’s orders”; according to
Minor’s counsel, Mother “failed to show that she has benefitted from services in her prior
The court agreed as to both parents. The court denied reunification services for
Father under section 361.5, subdivision (b)(12) [parent or guardian convicted of a violent
felony].) Regarding Mother, the court found another attempt at reunification services
with Minor unwarranted under section 361.5, subdivision (b)(10), given Mother’s failure
to reunify with M.M. The court explained that “[w]hen [M.M.] was removed from
[M]other’s care, that would be the time” for Mother to begin “to provide evidence that
she has made reasonable efforts to overcome the [same] problems that led to [M.M.’s]
removal.” To the contrary, however, M.M. “has been removed two times from [M]other
at this point,” indicating “she has failed to benefit from services.”
Over the span of both dependencies, Mother failed to follow court orders or social
worker guidance for the children’s protection. The court noted, “Even up until
September 6th,” the week before the hearing, “it’s been reported that [Mother] was trying
to bypass the Department [by] requesting [of] the caregiver [that she] bring the children
to her on the weekend and not tell the Department.” The court further highlighted its
concern that Mother “is also advising the caregiver not to ask for adoption but rather
legal guardianship so she can somehow do an end run around . . . the Court’s orders in
order to have the children returned to her without demonstrating any capacity or ability to
properly care for the children.” The court set a permanent plan selection and
implementation hearing (§ 366.26; hereafter .26 hearing) for January 10, 2025.
The .26 hearing was continued when Mother filed a modification petition.
(§ 388.) Mother sought in her petition to set aside the court’s September 2024 order
denying reunification services. The court denied the petition without an evidentiary
hearing. In written comments, the court explained why a hearing was unnecessary.
Specifically, while domestic violence had been central to the children’s respective
dependencies, Mother gave no indication she took steps to address the problem, such as
by “provid[ing] evidence that she completed domestic violence classes.” The court found
Mother’s evidence therefore suggested only “changing circumstances [and] not changed
Mother then amended and refiled her modification petition. She again stated that
since the court’s order terminating reunification services, she had completed parenting
and anger management classes and participated in further counseling sessions. She
amended her petition by stating that the counseling “included thorough discussion on DV
and choosing the wrong men (see counseling report).” Mother asserted she had thus
“addressed DV concerns that led to removal and TFR,” i.e., Termination of Family
Reunification. She noted she had decided to abstain from romantic relationships; she also
stated she had no contact with Father and that she never missed a visit with the children.
Mother contended that reopening reunification services would be in Minor’s best interests
based on these changes and because Minor had been in her care “the entirety of his life
until” he was removed; furthermore, he was attached and bonded to her, as was M.M.
She did not address her role in any past incidents of domestic violence or other
The court scheduled a hearing to determine whether Mother established a prima
facie case to change the no-reunification order. In the meantime, the Department
interviewed Mother, who reported that she was homeless but employed full time and
working the night shift at a warehouse. She stayed with friends or periodically at motels.
The social worker was able to verify two motel stays, including one in which—just
before Mother amended her modification petition—Mother was “kicked out” of the motel
“due to being involved in a[n] assault with an African American male.” The police
responded to the scene, but Mother and the man had already left.
While Mother stated she had no contact with Father, the social worker noted her
contrary history of continuing that relationship despite her “case plan and possibility of
hindering reunification.” Mother reported growth through her anger management class
and counseling sessions in identifying personal “triggers” and then using coping skills to
calm herself. She stated she accepted accountability for her role in Minor’s removal from
her care, identifying her “choice of partners as the only factor.” Her plan to ensure Minor
and M.M.’s safety consisted of “keeping the boys with her, maintain[ing] a low profile,
and prioritizing their care and well-being.” She anticipated things would “be different
this time” because “it will just be the 3 of them.” Mother was “vague with her responses
regarding the benefit of services.”
At a visit with the children in early January, Mother again lashed out at a social
worker. Mother was upset because her third-party visitation facilitator scheduled two
make-up visits at the Department instead of at its premises, pursuant to the center’s
internal policy for make-up visits. Mother began yelling and accused the social worker,
“You like taking people’s children away, that’s sick. I am a good mother, and you know
it, this is all because I don’t do background checks on who I lay with.” Mother
threatened to withhold visiting her children if they were not at her preferred location: “If
I can’t make the visits up at Bittersweet Encounters, then you can forget about it.”
Mother’s outburst occurred in front of the children. The Department
recommended against granting Mother’s modification petition. Despite years of services,
Mother continued “to be involved in domestic violence relationships” and remained
“aggressive and hostile towards her peers and the Department.” The Department noted
Mother “failed to change her patterns of behavior” or “take accountability for the safety
threats that led to [Department] and Court involvement.” Instead, Mother still
“present[ed] herself as a victim of mistreatment by the Court and the Department.”
At the prima facie hearing on Mother’s modification petition, Minor’s counsel
opposed an evidentiary hearing as unnecessary. Minor’s counsel revisited several of the
incidents in the record and concluded that, while Mother “has done a number of services;
however, she has not shown any benefit.” The Department similarly expressed concerns
regarding “who Mother associates with and . . . her veracity, her protective capacity, and
her anger management.” The Department acknowledged Mother “wants to subpoena
[her] therapist to get more information about this,” but argued Mother’s showing of
reform based on completing classwork and engaging in therapy “does not overcome the
conduct and behaviors that Mother has been exhibiting.”
Mother’s counsel sought an evidentiary hearing to have Mother testify to bolster
her claims in her petition and to have Mother’s therapist testify to add to, as Mother’s
counsel described it, the therapist’s “very, very thorough report.” Mother attached the
report to her modification petition. Father submitted in support of Mother’s petition.
The juvenile court reviewed Mother’s claims of reform in her amended petition,
including by quoting substantial excerpts from her therapist’s progress report. The court
concluded Mother failed to establish the requisite prima facie showing for an evidentiary
hearing. The court found Mother’s petition, viewed in light of the record in the case from
beginning to end, did not show that an evidentiary hearing or “any further hearings”
would be useful in determining whether circumstances had changed sufficiently that
ordering reunification services again would be in the children’s best interests. The court
denied Mother’s petition.
The court then held the .26 hearing, at which several witnesses testified, including
Father, a social worker, Mother, and the visitation monitor. Following the testimony,
counsel for Mother advanced an exception to termination of parental rights commonly
known as “the benefit exception,” based on a beneficial parent-child relationship.
(§ 366.26, subd. (c)(1)(b)(1).) Minor’s counsel argued against the exception. The
juvenile court found the exception did not apply, determined that Minor was adoptable,
identified adoption as the likely permanent plan for Minor, and terminated parental rights.
DISCUSSION Mother contends the juvenile court erred in denying her modification petition
without an evidentiary hearing and in finding against her invocation of the benefit
exception. We address these claims in turn; neither has merit.
“Section 388 allows an interested person to petition the juvenile court for a
hearing to change, modify or set aside a previous order. . . . The burden of proof is on the
petitioner.” (In re Cliffton B. (2000) 81 Cal.App.4th 415, 423.) “The parent seeking
modification must ‘make a prima facie showing to trigger the right to proceed by way of
a full hearing. [Citation]’ [Citations.] There are two parts to the prima facie showing:
The parent must demonstrate (1) a genuine change of circumstances or new evidence, and
that (2) revoking the previous order would be in the best interests of the children.” (In re
Anthony W. (2001) 87 Cal.App.4th 246, 250.)
“ ‘A prima facie case is made if the allegations demonstrate that these two
elements are supported by probable cause. [Citations.] It is not made, however, if the
allegations would fail to sustain a favorable decision even if they were found to be true at
a hearing. . . . In determining whether the petition makes the required showing, the court
may consider the entire factual and procedural history of the case.” (In re K.L. (2016)
248 Cal.Aplp.4th 52, 61-62.)
We review a juvenile court’s denial of a modification petition without an
evidentiary hearing for abuse of discretion. (In re Daniel F. (2021) 64 Cal.App.5th 701,
711.) This standard is generally “highly deferential to the decision maker,” requiring “a
showing that the decision was ‘so irrational or arbitrary that no reasonable person could
agree with it.’ ” (In re M.L. (2012) 205 Cal.App.4th 210, 228.) Nevertheless, “ ‘a court
abuses its discretion when it applies incorrect legal standards.’ ” (In re R.T. (2015)
232 Cal.App.4th 1284, 1301.)
Mother asserts as an initial basis for reversal that the juvenile court applied the
wrong standard in denying her petition. She contends the court overlooked the prima
facie standard and set her requisite showing to proceed to an evidentiary hearing at the
comparatively higher standard of a preponderance of the evidence. Instead, all that is
required is probable cause that the changed circumstances and best interests prongs may
be met. (In re K.L., supra, 248 Cal.App.4th at p. 61.)
We are not persuaded that the juvenile court erred as Mother suggests. The court
made reference to the preponderance of the evidence standard, which we construe to have
been regarding what was necessary for her to ultimately prevail on her modification
petition. (See, e.g., Cal. Rules of Court, rule 5.570(h)(1)(D) [petitioner bears burden of
proof by a preponderance of evidence].) The court recognized the question before it was
whether to “grant or deny an evidentiary hearing” on Mother’s petition, not whether to
grant or deny the petition itself, which would require the preponderance of evidence
showing. We presume the court knew and properly applied the governing law, including
the prima facie standard for the initial question of whether to hold an evidentiary hearing.
(Evid. Code, § 664; see J.H. v. G.H. (2021) 63 Cal.App.5th 633, 644 [juvenile court’s
“failure to ‘discuss’ a particular standard does not imply it applied an incorrect
standard”].) In particular, in denying an evidentiary hearing the court explained it was
also denying “any further hearings” (italics added), which indicates the court understood
that a further evidentiary hearing on the petition was only necessary if Mother met her
initial prima facie burden at the current hearing. We therefore find no merit in Mother’s
Next, we address Mother’s claim that she made the requisite changed
circumstances and best interests showing to warrant an evidentiary hearing. She did not
make a prima facie showing on either prong.
“[G]eneral, conclusory allegations” do not make a prima facie case. (In re Edward
H. (1996) 43 Cal.App.4th 584, 593.) Demonstrating “ ‘changed circumstances’ ” requires
addressing the reason or reasons for dependency. (Id. at p. 592; see id. at p. 593 [“the
treatment received by the father did not address sexual abuse,” a primary reason for the
children’s dependency there].) The requisite “change in circumstances must be
substantial.” (In re Ernesto R. (2014) 230 Cal.App.4th 219, 223.)
Here, unlike Mother’s initial modification petition, which the juvenile court
properly denied summarily, her amended petition at least referenced domestic violence.
In addition to Mother’s severe neglect of Minor’s sibling, M.M., Mother’s history of
domestic violence was the primary reason for Minor’s dependency. Neither Mother’s
amended petition, however, nor the report she attached from her therapist suggested a
change of circumstances in which Mother recognized her role in recurring altercations.
Mother was the constant in these altercations, though her partners changed. Yet
her petition indicated that what she took away from her completed parenting, anger
management, counseling sessions, and “thorough discussions on DV” was that the
problem was “choosing the wrong men.” The therapist’s report confirmed this was
Mother’s understanding. The report stated Mother now grasped “how it looked to have
someone with a criminal history with her infant,” reiterated that “she had not chosen safe
men to be around her children,” realized she had to “take more responsibility for who she
chooses to . . . have her family exposed to,” and she even resolved “not to date while her
children are little.” Mother told the social worker she accepted accountability for her role
in Minor’s removal from her care, but identified her “choice of partners as the only
The therapist’s report similarly included general references to Mother taking “full
accountability and responsibility for her part in the removal of her children,” but the
specifics indicated, as noted, that Mother viewed others as the sole problem. Mere
participation in services is not enough to regain reunification (In re Mary B. (2013)
218 Cal.App.4th 1474, 1483-1484), nor do general, conclusory allegations of change
require an evidentiary hearing (In re Edward H., supra, 43 Cal.App.4th at p. 593). This is
particularly true where the asserted changes, such as completing courses or engaging in
therapy, did not address Mother’s root cause role (see ibid.) in the domestic violence
altercations. Nor did Mother’s petition anywhere address the fact that similar violent
outbursts kept happening—in threatening conduct towards the social worker, with a male
individual at the motel, and again in another incident with the social worker. The juvenile
court aptly found these incidents “greatly disturb[ing].”
A parent’s inability to perceive risk from his or her own conduct raises a child’s
risk of harm. (See In re Gabriel K. (2012) 203 Cal.App.4th 188, 197 [“One cannot
correct a problem one fails to acknowledge”].) “ ‘The purpose of dependency
proceedings is to prevent risk, not ignore it.’ ” (Jonathan L. v. Superior Court (2008)
165 Cal.App.4th 1074, 1104.)
Notably, the therapist’s report acknowledged at its outset that one of Mother’s risk
factors was “Homicidal Impulse Control.” But nothing in the report or otherwise in
Mother’s petition suggested Mother was cognizant that such powerful impulses lay inside
of her, nor—most importantly—that she had made changes commensurate with the risk.
The report stated only that Mother knew she sometimes became “upset” and considered
“hot showers” or similar means of coping, but again, it was because she was triggered by
others. The juvenile court could reasonably conclude Mother did not make a probable
cause showing of substantially changed circumstances. She did not acknowledge or
begin to suggest she could put a stop to her own recurring violent or aggressive conduct,
including around her children.
Mother’s petition also failed on the second prong for modification. She did not
make a probable cause showing that the change she requested—reopening and extending
her reunification window with Minor—would be in his best interests.
Mother proffered in her petition that the change would be in Minor’s best interests
because she was abstaining from romantic relationships, she claimed she severed contact
with Father, she “never missed a visit with either child,” Minor had been in her care “for
the entirety of his life” until taken into protective custody, and she asserted “[b]oth
children are attached and bonded with” her.
Well-established, relevant factors involved in considering a child’s best interests in
the context of a modification petition include: (1) the seriousness of the problem that led
to the dependency and the reason for any continuation of that problem; (2) the strength of
the child’s bond with his or her new caretakers compared with the strength of the child’s
bond with the parent, and (3) the degree to which the problem leading to the dependency
may be easily removed or ameliorated, and the degree to which it actually has been. (In
re Kimberly F. (1997) 56 Cal.App.4th 519, 531-532.)
Additionally, two other factors were critical to Mother’s petition—time and
stability. Time was of the essence both in relation to Minor’s age and the advanced stage
of the proceedings. The default reunification period for a child entering dependency
under age three is just six months. (§ 361.5, subd. (a)(1)(B).) “ ‘[V]ery young children
. . . require a more timely resolution of a permanent plan because of their vulnerable stage
of development.” (Daria D. v. Superior Court (1998) 61 Cal.App.4th 606, 612.) In other
words, “ ‘given the unique developmental needs of infants and toddlers, moving to
permanency more quickly is critical.’ ” (Ibid.)
Moreover, the question of best interests has a special focus when a parent seeks a
change of order “on the eve of the .26 hearing” (In re J.C. (2014) 226 Cal.App.4th 503,
526), as Mother did here. Once the juvenile court “has . . . terminated reunification
services and set the matter for a section 366.26 hearing, the focus of the case shifts from
the parents’ interest in the care, custody, and companionship of the child to the needs of
the child for permanency and stability.” (In re N.F. (2021) 68 Cal.App.5th 112, 121.)
Thus, a modification petition at that point in the proceedings “for either an order
returning custody or reopening reunification efforts must establish how such a change
will advance the child’s need for permanency and stability.” (J.C., at p. 527; see In re
Brittany K. (2005) 127 Cal.App.4th 1497, 1507 [“minors’ need for stability, continuity,
and permanency” becomes “the overwhelming consideration of both the juvenile court
and [the reviewing] court”].)
Mother’s petition did not address Minor’s stability interest at all. Mother was
homeless and said she worked overnight shifts. While not impossible, she did not
suggest how she would arrange evening childcare or otherwise provide permanency and
stability for Minor. She already received two years of services in M.M.’s dependency to
resolve her propensity to violence, to no avail. At best, “ ‘[a] petition which alleges
merely changing circumstances . . . would mean delaying the selection of a permanent
home for a child to see if a parent . . . might be able to reunify at some future point, [and]
does not promote stability for the child or the child’s best interests.’ ” (In re Mary G.
(2007) 151 Cal.App.4th 184, 206.)
The court acknowledged Minor spent his first six months with Mother, as she
alluded to in her petition, but, at “a little over one year old,” Minor had lived as long or
longer with the prospective adoptive caregiver. Both Minor and M.M. were thriving with
the caregiver, a maternal cousin, who “love[d] them as if they were [her] own.” The
caregiver and her husband were willing to adopt both children, in which case Minor
could remain with his brother. In light of all the foregoing, the juvenile court did not
abuse its discretion in finding Mother failed to make the requisite prima facie showing for
We also find no merit in Mother’s contention that the juvenile court erred in
finding the benefit exception inapplicable.
The goal of juvenile court dependency proceedings is to ensure children have, to
the extent possible, “stable, permanent homes.” (§ 366.26, subd. (b).) “If the court
cannot safely return a dependent child to a parent’s custody within statutory time limits,
the court must set a hearing under section 366.26.” (In re Caden C. (2021) 11 Cal.5th
614, 630 (Caden C.).) The purpose of the hearing is “ ‘to select . . . a permanent plan for
“ ‘Adoption is the Legislature’s first choice because it gives the child the best
chance at [a full] emotional commitment from a responsible caretaker.’ ” (In re Celine R.
(2003) 31 Cal.4th 45, 53; see § 366.26, subd. (c)(1).) Ordinarily, if the juvenile court
finds the child is adoptable, “the court must order adoption and its necessary
consequence, termination of parental rights.” (Celine R., at p. 53.)
There are exceptions to this rule, but they permit departure from “ ‘the norm’ ” of
adoption only in “ ‘exceptional circumstances.’ ” (Caden C., supra, 11 Cal.5th at p. 631.)
Under the parental-benefit exception, the juvenile court may avoid terminating parental
rights if “[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” (id., subd. (c)(1)(B)(i)).
Under this exception, the parent must “establish, by a preponderance of the
evidence,” all of the following: “(1) regular visitation and contact, and (2) a relationship,
the continuation of which would benefit the child such that (3) the termination of parental
rights would be detrimental to the child.” (Caden C., supra, 11 Cal.5th at p. 631.) The
first element focuses on whether visitation was regular. The juvenile court found Mother
established this element, which the Department does not contest.
For the second element, a parent must establish that he or she has a beneficial
relationship with the child and in assessing this prong, “the focus is the child.”
(Caden C., supra, 11 Cal.5th at p. 632.) Thus, “the relationship may be shaped by a slew
of factors, such as ‘[t]he age of the child, 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.’ ” (Ibid.) As Caden C. observed, “[C]ourts often
consider how children feel about, interact with, [or] look to . . . their parents.” (Ibid.) “A
parent must show more than frequent and loving contact or pleasant visits.” (In re C.F.
(2011) 193 Cal.App.4th 549, 555.)
For the third element, the juvenile court determines “how the child would be
affected by losing the parental relationship—in effect, what life would be like for the
child in an adoptive home without the parent in the child’s life.” (Caden C., supra,
11 Cal.5th at p. 633.) To that end, “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. If severing the natural parent/child relationship
would deprive the child of a substantial, positive emotional attachment such that the child
would be greatly harmed, the preference for adoption is overcome and the natural
parent’s rights are not terminated.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575;
accord Caden C., supra, 11 Cal.5th at p. 631 [adopting these factors and citing Autumn H.
as “the seminal decision interpreting the [benefit] exception”].)
In Caden C., the Supreme Court held that a parent’s inability to reunify with his
or her child because of unresolved struggles with addiction or other difficulties does not,
by itself, disqualify the parent from invoking the benefit exception. (Caden C., supra,
11 Cal.5th at pp. 637-642.) To the contrary, the exception still “applies in situations
where a child cannot be in a parent’s custody but where severing the child’s relationship
with the parent, even when balanced against the benefits of a new adoptive home, would
be harmful for the child.” (Id. at p. 630.)
A hybrid standard governs our review. (Caden C., supra, 11 Cal.5th at p. 641.)
The first two elements of the benefit exception, namely, consistent visitation and a
beneficial relationship, involve factual determinations governed by the substantial
evidence standard of review. (Id. at pp. 639-640.) The final step, in which the court
assesses whether termination of parental rights would be detrimental to the child, is
committed to the juvenile court’s sound discretion; we therefore review that
determination under the deferential abuse of discretion standard. (Id. at pp. 640-641.)
With the first prong of Caden C.’s analysis conceded by the Department, Mother
next contends that substantial evidence supports the existence of a beneficial mother-
child relationship. The question on review, however, is not whether “the dependency
court could have drawn a different conclusion but whether there is substantial evidence to
support the conclusion that the court did draw.” (In re Noe F. (2013) 213 Cal.App.4th
358, 366.) Under that standard, “we do not pass on the credibility of witnesses, attempt
to resolve conflicts in the evidence, or reweigh the evidence. Instead, we draw all
reasonable inferences in support of the findings, view the record favorably to the juvenile
court’s order and affirm the order even if there is other evidence supporting a contrary
finding. [Citations.] The appellant has the burden of showing there is no evidence of a
sufficiently substantial nature to support the court’s findings.” (In re G.L. (2009) 177
Cal.App.4th 683, 697-698.)
Mother does not meet her appellate burden. She cites evidence that Minor would
stretch out his arms to her on seeing her, that she “joyfully dances and plays with her
son” on visits, and the visitation monitor’s testimony that Minor was “not indifferent to or
detached from” Mother during visits. Mother contends that by visiting Minor every
week, she has been “the one and only constant, steady adult that has served in a parental
role for [Minor] since the day [Minor] was born.”[AOB 50} She asserts that she “has
been a part of every step of [Minor’s] development even as she also grows and develops
Furthermore, blurring her challenge to the juvenile court’s findings on the second
prong together with the third prong, Mother also argues that the court’s “cursory”
assessment of her relationship with Minor “resulted in an incomplete and cursory
consideration of the third element—whether it would be detrimental to sever [Minor’s]
relationship with his mother.” Mother testified regarding the third element that the harm
from terminating her parental rights was based on her and her sons’ youth: “[M]y
children are young, and I just—I want to be able to have that chance to be a mom. I had
my kids at 17, and I’m growing up. I’m only 21 right now.”
It is true that the analytic lines “between the prongs of the benefit exception” are
not “strict,” but instead “naturally inform and lead into each other.” (In re G.H. (2022)
84 Cal.App.5th 15, 26.) But Mother has the benefit perspective backward. The focus is
on the child, not the parent. (Caden C., supra, 11 Cal.5th at p. 632.) Moreover, by the
time of the .26 hearing, the biological parent’s interest in companionship with the child
gives way to the child’s need for permanency. (In re N.F., supra, 68 Cal.App.5th at
p. 121; see In re Marilyn H. (1993) 5 Cal.4th 295, 310 [“Childhood does not wait for the
parent to become adequate”].)
The juvenile court correctly observed in finding Mother did not establish the
benefit exception that Minor had spent as much or more time in his adoptive caregivers’
home as with Mother. Mother provides no evidence for her claim that she was there for
Minor for important milestones. Minor did reach for Mother on visits, but that was after
initially seeking the caregiver; he also reached up to other visiting adults.
It can be difficult for a parent out of custody to show a bond with young children
that is unique or of special benefit to preclude terminating rights. (See In re Beatrice M.
(1994) 29 Cal.App.4th 1411, 1420 [many toddlers are naturally cuddly, effusively loving,
and affectionate].) Still, the parent must show more than that the child “would derive
some benefit from continuing a relationship maintained during periods of visitation.” (In
re Angel B. (2002) 97 Cal.App.4th 454, 466.) Friendly or affectionate visits are not
enough. (Id. at p. 468.) The necessity of a “substantial, positive emotional attachment”
(id. at p. 466) follows from the fact that the benefit exception is established 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 permanent home with new, adoptive parents.” (In re
Autumn H., supra, 27 Cal.App.4th at p. 575.)
The juvenile court, like Mother, assessed the second and third prongs of the
benefit exception together. The court summarized: “The issue for the Court is, is there
insufficient evidence, based on testimony and what is reflected in the reports that there is
a relationship between the mother and [Minor] the continuation of which would benefit
the child such that termination of parental rights would be detrimental to the child.” The
court observed that there was no “fussiness” by Minor at the close of visits, which
Mother explains by the fact that the child was usually sleeping. But the court also found,
“There’s no emotional d[y]sregulation. There’s no testimony or information contained
within the reports that [Minor] is experiencing any issues after the visits, which would
have been documented. [¶] So the Court is finding that the mother has not met her
burden of proof as to the second and third element [of] In re Caden C.; the Court is
finding that this is not an exceptional case, which would allow the Court to deviate from
the legislative preference regarding adoption.” The record supports the juvenile court’s
findings. The court did not abuse its discretion in finding the benefit exception did not
DISPOSITION The juvenile court’s order terminating Mother’s and Father’s parental rights is
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
RAMIREZ P. J.
CODRINGTON J. AI-generated · verify before citing Holding. The court affirmed the termination of parental rights, holding that the mother failed to establish a prima facie case of changed circumstances or that reopening reunification services would be in the child's best interests.
Issues
Did the juvenile court abuse its discretion by denying the mother's section 388 modification petition without an evidentiary hearing? Did the juvenile court err in finding that the benefit exception to the termination of parental rights did not apply? Disposition. Affirmed
“The court concluded Mother failed to establish the requisite prima facie showing for an evidentiary hearing.” “The court found Mother’s evidence therefore suggested only “changing circumstances [and] not changed circumstances.””