In re David G. CA4/1

Filed 2/24/14 In re David G. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re David G., a Person Coming Under the
Juvenile Court Law.
D064198
SAN DIEGO COUNTY HEALTH &
HUMAN SERVICES AGENCY,
(Super. Ct. Nos. SJ11431; SJ11431D)
Plaintiff and Respondent,

v.

S.C. et al.,

Defendants and Appellants.

APPEALS from a judgment of the Superior Court of San Diego County, Garry G.

Haehnle, Judge. Affirmed.

Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and

Appellant, S.C.

Rosemary Bishop, under appointment by the Court of Appeal, for Defendant and

Appellant, David G., Sr.
 Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel, and Dana C. Shoffner, Deputy Counsel Counsel, for Plaintiff and Respondent.

Tilisha Martin, Carolyn Levenberg, Maria Diaz for the Minor.

S.C., the mother of David G., appeals from a juvenile court judgment terminating

her parental rights to David following her Welfare and Institutions Code1 section 366.26

hearing and denying her an evidentiary hearing on her section 388 petition for

modification. She contends the juvenile court erred by (1) declining to apply the

beneficial relationship exception to adoption (§ 366.26, subd. (c)(1)(B)(i)) and (2)

denying her section 388 petition without an evidentiary hearing regarding her enrollment

in a residential drug treatment program and compliance with its requirements. David G.,

Sr., David's father (father) appeals and joins in S.C.'s arguments to the extent they benefit

him. He also challenges the sufficiency of the evidence supporting the social worker's

conclusion that he and David did not have a secure bond. David's counsel joins in the

arguments and position of the San Diego County Health and Human Services Agency

(Agency). We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In January 2012, Agency petitioned under section 300, subdivision (b) on behalf

of David, alleging that S.C. failed to adequately supervise or protect David. Specifically,

1 Statutory references are to the Welfare and Institutions Code unless otherwise
specified.

2
Agency alleged S.C. had been arrested after attempting to sell methamphetamine while

David, who was then eight months old, was unattended in a motel room with

methamphetamine and drug paraphernalia within his reach. It alleged S.C. admitted to a

history of methamphetamine use, she had failed to reunify with three other children, and

David was at substantial risk of serious physical harm or illness.

After her arrest, S.C. was booked into Las Colinas Women's Detention Facility.

David was taken to Polinsky Children's Center and two days later moved to a licensed

foster home. Social worker James Marcuzzo then met with S.C. He reported S.C. had

previously received case management, counseling, substance abuse treatment and

education about the danger of exposing her children to poor environments and behaviors,

but continued to surround herself with criminal activity, engage in drug use and live in

environments where her children could ingest methamphetamine. He also separately

interviewed father, who admitted he had used methamphetamine or heroin on the

morning of his interview. Father's January 9, 2012 drug test was positive for opiates,

codeine, and morphine.

On January 11, 2012, the court determined father to be the presumed parent. It

declined to grant David detention with father given father's drug use, but granted S.C. and

father liberal supervised visitation.

In February 2012, Agency recommended that father be provided reunification

services, but that S.C., who had failed to protect David and was determined to be a

substantial risk, be denied such services. A social worker had supervised a visit at the

Las Colinas Detention Facility with S.C. and David on February 9, 2012, and reported

3
that David's initial reaction to S.C. was passive; he did not react or easily go to her as she

reached out for him, and he did not acknowledge that she was someone familiar. S.C.

was tearful and had difficulty managing her emotions, but David tolerated the visit while

engaging in minimal eye contact with S.C. S.C. was able to provide one nurturing

moment while she fed David and he touched her face, and she appropriately played with

him. Nevertheless, the social worker concluded it was unclear if S.C.'s visit was

beneficial to David given his initial nonreaction as well as his ease in separating from

S.C. after the visit. Agency reported that S.C. had an extensive history of drug use that

led to her other three children being removed from her custody, and termination of her

parental rights as to the youngest of her other children in August 2006.2 S.C. also had a

criminal history due to her dependence on controlled substances and involvement in drug

sales leading to arrest. S.C.'s history demonstrated her inability to put her children's

needs ahead of her own.

On March 6, 2012, the court entered true findings on the petition and ordered

David placed in foster care. It denied S.C. reunification services. S.C. was released from

jail in April 2012 but as of the end of August 2012, had no contact with Agency. In June

2 Agency requested, and the juvenile court implicitly took, judicial notice of
documents filed in the dependency case of David's half-sibling, E.C., to whom S.C.'s
parental rights were terminated. On that evidence, the court denied reunification services
to S.C. under section 361.5, subdivision (b)(10) (parent's failure to reunify with sibling)
based on S.C.'s failure to reunify with E.C.

4
2012, David was placed with nonrelative extended family members (§ 362.73) who were

maternal cousins.

The six-month review hearing took place in October 2012. In a September 4,

2012 status review report, social worker Michelle Paje reported that father began

individual therapy in February 2012 but according to his therapist, as of July 2012 he was

still inconsistent in his insight and in verbalizing the negative consequences of his drug

addiction to himself and David. Father also struggled with his coping skills. Father had

missed four appointments with the therapist. He had not seen the therapist since July 12,

2012, and had not called to reschedule. Father began substance abuse treatment on

January 27, 2012, but tested positive for methamphetamine and heroin on March 6, 2012,

and April 24, 2012. After completing a detoxification program in May 2012, he had two

unexcused absences from his substance abuse treatment group and was not checking in

for drug testing. In July 2012, father walked out of a treatment group and refused a drug

test, after which he was referred to inpatient drug treatment. That month, Father was

discharged from the substance abuse treatment program for excessive absences. Paje

later reported that father admitted using methamphetamine in early September 2012, but

he had entered the CRASH (Community Resources and Self Help) program, an inpatient

drug rehabilitation program, on September 27, 2012. Father also asked to resume

therapy.

3 " 'A "nonrelative extended family member" is defined as any adult caregiver who
has an established familial or mentoring relationship with the child. . . . The parties may
include relatives of the child, teachers, medical professionals, clergy, neighbors, and
family friends.' " (Samantha T. v. Superior Court (2011) 197 Cal.App.4th 94, 108.)
5
 Paje reported that Father began supervised weekly visitation with David in

February 2012 and was appropriate with David; feeding him and changing his diaper

during visits. During the visits David looked to father for his needs. However, father did

not show up for four visitation sessions between April 2012 and June 2012, did not call to

inform the visitation center, and his referral was closed in June for exceeding the center's

"no show" policy. Father otherwise had seven visits with David's then foster mother

between April and June 2012. After David was placed with the extended family

members in June 2012, father had one supervised visit in July 2012. He failed to appear

at another scheduled visit and they rescheduled another, but as of July 27, 2012, father

had neither called for visitation nor contacted the family member to check on David's

well-being. Though father had completed a parenting education class, Paje concluded

that father had not demonstrated he could safely care for David as his drug use impacted

those abilities, father minimized his drug use and did not understand its negative

ramifications, and David was not safe in father's care. She recommended that services be

terminated and a section 366.26 hearing set.

As for S.C., Paje reported S.C. had met with her probation officer on April 12,

2012, and was not aware she was entitled to visitation. The probation officer stated S.C.

had tested positive for methamphetamine that day and the next day. S.C. admitted using

drugs again on April 23, 2012, at which time she was admitted to the substance abuse

recovery program at McAllister South Bay Regional Recovery Center. S.C. tested

positive for drugs again on April 26, 2012, but had four negative drug tests in May 2012.

6
Her progress at the center was reported to be unsatisfactory, however, for unexcused

absences. S.C. stopped attending the program on June 4, 2012.

Paje was informed by the nonrelated extended family member with whom David

was placed that on June 21, 2012, S.C. had entered CRASH. S.C. had three supervised

visits in May and June with David's then foster mother but S.C. was not consistent in

calling to set up visits. Paje reported that S.C. had been having visits each Sunday with

David at CRASH, as the extended family member could not transport David to her on the

only other visitation day. S.C. dropped out of CRASH on September 11, 2012, and the

program would not accept her back due to past incidents and her inability to remain in

treatment.

Adopting the recommendations in the status report, the court in October 2012

terminated father's reunification services and set a section 366.26 hearing. It found

David's return to father would create a substantial risk of detriment to David's physical

and emotional well-being, and there was not a substantial probability he would be

returned to father's physical custody within the next six months.4

Agency issued assessment reports in January and February 2013 for the section

366.26 hearing, as well as an addendum in March 2013 in part responding to the parties'

petitions filed under section 388. In January 2013, David was one year old, in good

health, and up to date on his immunizations. He appeared to be attached to his foster

4 Father filed a notice of intent to file a petition for a writ of mandate in this court
challenging the juvenile court's October 11, 2012 order, but the case was dismissed after
his attorney advised there were no viable issues for writ review.
7
parents and looked to them to meet his needs, and they had met his physical,

developmental, emotional and medical needs for the past seven months. They had

coordinated speech therapy for David, were willing to access additional services, and had

assisted with visitation by transporting David and supervising visits when needed. The

foster parents were in the process of deciding whether to adopt David. David had limited

vocabulary and was unable to articulate any feelings, but he appeared attached,

comfortable and content when interacting with both foster parents.

David had not lived with father since the fall of 2011, and though father was

entitled to weekly visitation, he had not been consistent in them. For example, father did

not appear for three out of four weekly visits he had scheduled between September 11,

2012, and October 2, 2012. In reporting on five supervised visits between father and

David, social worker Jennifer Kadas reported that during the first visit, David did not

have any reaction to seeing him. Father played with David and changed his diaper even

though it was clean. When the visit was over, David began to make an upset face when

father left, but became calm when driving with Kadas. On one visit, father brought toys

and a bib, but otherwise he did not bring toys, food or diapers. Kadas observed father

comforted David and was affectionate but did not consistently set limits, including by

failing to have David put a toy away at the end of a visit. Kadas observed that David did

not use the word "daddy." She stated that while David appeared to enjoy the time with

father and father showed some positive parenting practices, she did not believe David

was securely attached to father due to the inconsistent environment during the first eight

months of David's life and father did not consistently set limits, which was a fundamental

8
parenting practice. Kadas concluded that while David and father had a relationship, it

was not strong.

Kadas reported that she was contacted by S.C. in November 2011 to set up

supervised visits and had left multiple messages for S.C. and her substance abuse

counselor at KIVA, an inpatient drug treatment program, without being able to set up

times during the week. Kadas eventually supervised one visit between David and S.C. in

December 2012, for which S.C. was late. When S.C. arrived, she got David out of the car

seat and carried him inside, but David did not have a noticeable reaction to her. S.C. sat

David in her lap to read but David got up and went to his baby foster sister, after which

time the foster father redirected David to another activity. S.C. picked up David and

made noises that made him laugh, and told him she loved him. David did not have a

noticeable reaction when the visit ended. Kadas reported that since she was assigned to

the case, S.C. was visiting David weekly and had approximately 11 visits with David.

Nevertheless, Kadas concluded that while David enjoyed his visits with S.C. and she

showed some positive parenting skills, S.C., like father, did not consistently set limits

with David and the child listened to his foster father when given the same direction.

According to Kadas, S.C.'s visits, which had been consistent since June 2012, were more

like those with an extended family member and not a securely attached parent. Kadas did

not believe David was securely attached to S.C. due to her active addiction at the time of

his removal, and they did not have a strong relationship.

Kadas believed adoption was in David's best interest; that both parents had

substance abuse histories spanning about 15 years with a long way to go in the recovery

9
process before they were stable and could safely care for a young child, and David could

not wait any longer for them to stabilize. She concluded the benefits of adoption

outweighed any potential detriment and there would be no significant detriment to David

if his relationship with S.C. were severed.

In an addendum, Kadas reported she had supervised one additional visit with S.C.

in January 2012. During that visit, David did not initially want to go to S.C., and when

he later became upset during play, he reached out to Kadas. David was not bothered

when S.C. left. Kadas's conclusions as to a permanent plan of adoption for David had not

changed; she did not believe David had a significant parent-child relationship with either

parent and the benefits of adoption outweighed any potential detriment.

On March 12, 2013, father filed a section 388 petition requesting reinstatement of

his reunification services and unsupervised visitation or alternatively an order for a plan

to transition David back to him. Father asserted he had completed an intensive

behavioral modification drug treatment program involving drug and alcohol counseling,

group therapy, parenting, drug testing, 12-step meetings, transitional services, and an

after-care program. He claimed he was participating in volunteer opportunities with

CRASH, had a sponsor, continued to attend Narcotics Anonymous meetings, was looking

for stable employment, and had completed a relationship class. Father stated he accepted

responsibility for his past drug use and could identify triggers that caused him to use,

helping him to maintain his sobriety. Father pointed to Kadas's February status report

and addendum, claiming it showed his visitation with David was more consistent and he

10
acted appropriately during visits, comforting and showing affection to David, changing

him, feeding him, and redirecting him when needed.5

In her March 14, 2013 addendum, Kadas reported that the nonrelated extended

family members had decided to adopt David. The foster father told her that S.C. had

cancelled a few visits and had been more distant; he believed S.C. was using drugs again.

S.C. presented a letter of completion from KIVA, a drug and alcohol treatment program,

showing S.C. had attended between October 3, 2012, and January 2, 2013. However,

S.C.'s counselor reported to Kadas that on March 8, 2013, S.C.'s drug test was positive

for methamphetamine, and S.C. had refused to test the prior day. S.C. had also been laid

off her job. S.C. had asked the counselor not to tell Kadas about the positive drug tests.

S.C.'s probation officer reported to Kadas that S.C. was living with father and using

drugs, and that when she drug tested S.C., S.C. told her it would be positive for

methamphetamine. As for father, Kadas reported he had completed the CRASH program

on January 28, 2013. She had spoken to father's aftercare counselor, who had not seen

father since February 28, 2013, and was dropping father from the program.

In a May 2013 addendum, Kadas reported that David had seen father once since

February 2013. That visit was on Easter, March 31, 2013, at a family dinner, which

5 In or about February 2013, S.C. also prepared a section 388 petition seeking
reunification services and unsupervised visitation. She stated she had completed KIVA, a
residential drug treatment program, and a parenting class, had a sponsor and was
attending meetings. She stated she was visiting David regularly and was gainfully
employed. S.C. claimed she had been clean and sober since June 21, 2012. However,
S.C. later withdrew this petition on grounds she had "struggled recently with her
sobriety" and had no basis for such a request.

11
according to the foster mother went well, but father's "attention span was different" and

the foster mother suspected he was using drugs. The foster mother told Kadas that father

was supposed to contact them for another visit but had not as of April 16, 2013. Kadas

reported that she had not received any calls from father requesting assistance with

visitation, but father told her on May 3, 2013, that he would set up a visit with David for

that weekend. As for father's sobriety, father reported on May 3, 2013, that he had not

used alcohol or drugs since leaving CRASH but was not enrolled in aftercare treatment,

though that was considered part of the CRASH program. Father claimed it was difficult

to keep in contact with his Narcotics Anonymous sponsor and had not spoken with him

since his last court date on March 19, 2013. Father reported he had moved out of the

shared residence with S.C. before her relapse.

Kadas reported that on April 16, 2013, the foster mother stated that S.C. had been

calling to set up visits with David but S.C. was not showing up for them. The foster

mother told Kadas that S.C. called father on Easter and asked about David; that S.C.'s last

visit was on March 23, 2013, and she had not seen David in three or four weeks; S.C. was

currently in a detoxification program; and the foster parents were trying to set up a visit

with her. Kadas had not received any calls from S.C. with updates or to seek assistance

in setting up visitation.

Observing that David had recently turned two and had been living out of his

parents' care for about 16 months, over one-half his life, Kadas assessed adoption to be

the most appropriate permanent plan for David. She found no exceptions to adoption

12
existed; she recommended the court order a permanent plan of adoption for David and

termination of S.C. and father's parental rights.

In a June 7, 2013 addendum, Kadas reported that she had been given a counselor's

letter stating that S.C. had entered KIVA, a residential drug treatment program, on April

17, 2013, and was a resident there as of May 15, 2013. By the time Kadas contacted

KIVA with a release for the program to provide confidential information, S.C. declined

permission for the KIVA counselor to talk to Kadas about her treatment. Kadas

confirmed with S.C.'s counselor at McAlister Institute that S.C. was in an aftercare

program in March 2013 where she had two positive drug tests; S.C. was then sent to 14

days of detoxification but used drugs while there; and S.C. was discharged in April 2013

with a poor prognosis " 'due to continued drug use' " after failing to appear on April 10

and April 11, 2013. Kadas did not change her recommendation as to David's permanent

plan and termination of parental rights.

On June 10, 2013, two days before the section 366.26 contested hearing, S.C. filed

a section 388 petition. She stated she had entered KIVA and asked that David be placed

with her there as well as family maintenance services. Alternatively, S.C. asked that the

court order reunification services to the 18-month review, or another permanent planned

living arrangement be ordered with services under section 366.3. S.C. claimed that she

raised David for the first nine months of his life and he "deserves the opportunity to be

raised by his biological mother."

At the contested section 366.26 hearing, the juvenile court denied S.C.'s section

388 petition. It found S.C. had a long history of substance use and repeated failures in

13
substance abuse treatment, and there was no evidence to show KIVA would be a

successful program for S.C., or why it would be in David's best interest to be raised by

her. Observing S.C. had tested positive in March 2013, self-reported to be using in April

2013, and was not cooperative with Agency, the court ruled there was no evidence of a

change in circumstances for S.C. and no prima facie evidence of David's best interest;

short-term sobriety, therapy, and residential treatment did not provide such evidence.

After considering arguments as to David's permanent plan, the court found it was "a

stretch but possible" to find that there had been regular, consistent visits and regular

contact with David, but that neither parent had shown that the quality of their visits

constituted anything more than David seeing a friendly visitor; there was no evidence to

suggest they established any parental role that would outweigh the benefits of permanent

adoption for David. It found the benefits of permanent adoption for David far

outweighed a relationship with S.C. and father, and by clear and convincing evidence that

no exceptions applied, termination of parental rights was not detrimental to David, and

adoption was in his best interest. It terminated S.C. and father's parental rights and

referred David to Agency for adoption.

DISCUSSION

I. S.C.'s Appeal

A. The Beneficial Relationship Exception

1. Legal Principles and Standard of Review

Neither party contests the court's finding that David is adoptable and that adoption

is in his best interests. If a dependent child is adoptable, the court must terminate

14
parental rights at the section 366.26 hearing unless the parent proves by a preponderance

of the evidence the existence of a statutory exception. (§ 366.26, subd. (c)(1); In re

Helen W. (2007) 150 Cal.App.4th 71, 80-81; In re Lorenzo C. (1997) 54 Cal.App.4th

1330, 1343-1345 [parent bears the burden to establish by preponderance standard that an

exception to the statutory preference for adoption applies].) An exception exists if a

parent has "maintained regular visitation and contact with the child and the child would

benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i), italics added.)

"This court has interpreted the phrase 'benefit from continuing the relationship' in

section 366.26, subdivision (c)(1)(B)(i) to refer to a 'parent-child' relationship that

'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 other words, the

court balances the strength and quality of the natural parent[-]child relationship in a

tenuous placement against the security and the sense of belonging a new family would

confer. 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 C.F. (2011) 193 Cal.App.4th 549, 555, quoting In re Autumn H.

(1994) 27 Cal.App.4th 567, 575.)

To make this showing, "[a] parent must show more than frequent and loving

contact or pleasant visits. [Citation.] 'Interaction between natural parent and child will

always confer some incidental benefit to the child . . . . The relationship arises from day-

to-day interaction, companionship and shared experiences.' [Citation.] The parent must

15
show he or she occupies a parental role in the child's life, resulting in a significant,

positive, emotional attachment between child and parent. [Citations.] Further, to

establish the section 366.26, subdivision (c)(1)(B)(i) exception the parent must show the

child would suffer detriment if his or her relationship with the parent were terminated."

(In re C.F., supra, 193 Cal.App.4th at p. 555; see also In re Derek W. (1999) 73

Cal.App.4th 823, 827 [to establish a beneficial relationship, it is not enough that the

parent "demonstrate 'frequent and loving contact[,]' [citation], an emotional bond with the

child, or that parent and child find their visits pleasant"].) "One can know a child's

interests, enjoy playtime together, and be a loved relative, but not occupy a parental role

in the child's life." (In re Jeremy S. (2001) 89 Cal.App.4th 514, 523, disapproved on

other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.)

The existence of a beneficial relationship is determined by 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 . . . ." (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) We determine the

exception's application on a case-by-case basis, and under the substantial evidence

standard. (Id. at pp. 575-576.) Thus, "[w]e do not evaluate the credibility of witnesses,

reweigh the evidence, or resolve evidentiary conflicts. Rather, we draw all reasonable

inferences in support of the findings, consider the record most favorably to the juvenile

court's order, and affirm the order if supported by substantial evidence even if other

evidence supports a contrary conclusion." (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947;

Autumn H., at p. 576.)

16
 2. S.C.'s Contentions

S.C. contends "there is insufficient evidence to support the determination that

[S.C.] did not meet her burden of showing a beneficial relationship." She maintains she

had regular and consistent weekly visitation from the end of June 2012 to April 2013,

thus meeting the first prong of the beneficial relationship exception, and that her contact

with David was "appropriate and positive . . . ." S.C. relates the details of her supervised

visit on February 9, 2012, while at Las Colinas, and other visits on December 18, 2012,

January 29, 2013, and February 26, 2013, and asserts David was "comfortable and

bonded" to her. Specifically, S.C. points out she played appropriately with David,

reading to him and helping him select toys or making noises that made him laugh; had

nurturing moments with him in that she held and spoke softly to him while he looked at

her and touched her face; told him she loved him; fed him and changed his diaper; and

kissed him goodbye. S.C. argues that because David's vocabulary was limited, his

nonverbal cues were important, and those showed he enjoyed the visits he had with S.C.

She also argues that there was no evidence her relationship with David was harmful, or

that David's placement with the foster parents would have been jeopardized if her

parental rights had remained intact.

3. Analysis

Though S.C. argues extensively that she maintained regular visits, and Agency

contests the juvenile court's finding in S.C.'s favor on that first prong, we decide S.C.'s

appeal on the second prong of the beneficial relationship analysis: whether substantial

evidence supports the juvenile court's determination that S.C. had not shown a sufficient

17
parental role that "promotes the well-being of [David] to such a degree as to outweigh the

well-being [David] would gain in a permanent home with new, adoptive parents." (In re

Autumn H., supra, 27 Cal.App.4th at p. 575.)

At the outset, we note that the beneficial relationship exception is "difficult to

make in the situation . . . where the parents have [not] advanced beyond supervised

visitation." (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) These are the circumstances

in this case. On this point, S.C.'s arguments at best establish loving or pleasant visits,

which is not sufficient to establish a beneficial parent-child relationship. S.C. selectively

points to social worker Kadas's conclusions that she showed positive parenting practices.

But these arguments ignore Kadas's other conclusions that David did not recognize S.C.

or go easily to her during visits, he responded to the foster father when redirected, did not

have an emotional response to leaving S.C., and ultimately responded negatively when

seeing her at visits, instead seeking comfort from Kadas. S.C. ignores Kadas's

conclusions that based on these behaviors, and also the fact S.C. was active in her

addiction when David was removed from her, S.C. and David did not share a strong or

secure relationship. And, Kadas's report indicates David was thriving with his foster

parents, who were meeting his emotional and other needs. Social worker Kadas's reports

and expertise, as reflected in her resume admitted into evidence, constitute substantial

evidence on which the juvenile court was entitled to rely. (In re Casey D., supra, 70

Cal.App.4th at p. 53 [trial court was entitled to find the social worker credible and to give

greater weight to her assessments].) The evidence from Kadas's reports permit an

inference that S.C. was at best a friendly caretaker or visitor to David. We will not

18
reweigh the inferences to be drawn from the evidence to favor S.C. (In re L.Y.L., supra,

101 Cal.App.4th at p. 947 ["we draw all reasonable inferences in support of the

findings"].)

B. S.C.'s Section 388 Petition

S.C. contends she met her prima facie burden to trigger an evidentiary hearing on

her section 388 petition, and that the juvenile court violated her due process rights by

dispensing with a hearing and summarily denying the petition.

1. Legal Principles

"A juvenile court order may be changed, modified or set aside under section 388 if

the petitioner establishes by a preponderance of the evidence that (1) new evidence or

changed circumstances exist, and (2) the proposed change would promote the best

interests of the child. [Citation.] The parent bears the burden to show both a legitimate

change of circumstances and that undoing the prior order would be in the best interest of

the child. [Citation.] Generally, the petitioner must show by a preponderance of the

evidence that the child's welfare requires the modification sought. [Citation.] [¶] Not

every change in circumstance can justify modification of a prior order. [Citation.] The

change in circumstances must relate to the purpose of the order and be such that the

modification of the prior order is appropriate. [Citation.] In other words, the problem

that initially brought the child within the dependency system must be removed or

ameliorated. [Citation.] The change in circumstances or new evidence must be of such

significant nature that it requires a setting aside or modification of the challenged order."

(In re A.A. (2012) 203 Cal.App.4th 597, 611-612.)

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 The petitioner must "make a prima facie showing to trigger the right to proceed by

way of a full hearing." (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) There are two parts

to the prima facie showing: The petitioner 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 child. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) The

petition, which is to be liberally construed (In re Marilyn H., at p. 309), must be verified

and "set forth in concise language any change of circumstance or new evidence that is

alleged to require the change of order or termination of jurisdiction." (§ 388, subd.

(a)(1); In re Edward H. (1996) 43 Cal.App.4th 584, 593 [section 388 petition must

include "specific allegations describing the evidence constituting the proffered changed

circumstances or new evidence"].) The court is given broad discretion to deny a hearing

if the request for modification fails to state a change of circumstances or new evidence or

fails to demonstrate that the requested modification is in the best interests of the child.

(Cal. Rules of Court, rule 5.570(d)(1) & (2); In re Stephanie M. (1994) 7 Cal.4th 295, 318

[decision whether to change an existing order is committed to juvenile court's sound

discretion]; In re Marcelo B. (2012) 209 Cal.App.4th 635, 642; In re Zachary G. (1999)

77 Cal.App.4th 799, 807-808.)

2. Analysis

Under the applicable standard of review, the court's summary denial of a hearing

on S.C.'s modification petition "should not be disturbed on appeal unless an abuse of

discretion is clearly established." (In re Stephanie M., supra, 7 Cal.4th at p. 318; In re

A.S. (2009) 180 Cal.App.4th 351, 358.) Such error is shown only where the court

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exceeds the limits of legal discretion by making an arbitrary, capricious or patently

absurd determination. (In re A.S., at p. 358.) S.C.'s showing does not meet this standard.

S.C. claims her circumstances had changed because she was presently enrolled in

KIVA and was participating in individual mental health therapy sessions. Her section

388 petition included documentation that she was then attending classes and workshops.

But S.C. had not completed the program, and her placement there must be viewed in the

light of her repeated efforts at substance abuse treatment and relapses over her years of

substance abuse.6 Indeed, S.C. resumed her drug use after her release from jail in April

2012. She failed to complete CRASH in 2012, and though she enrolled in another

program in January 2013, she tested positive again in March 2013 and was deceptive

about it, asking her counselor to conceal the test results from Agency. Under these

circumstances, the juvenile court reasonably concluded that S.C. had shown at best

changing circumstances, which do not meet the prima facie showing under section 388.

(In re A.S., supra, 180 Cal.App.4th at p. 358; In re Casey D., supra, 70 Cal.App.4th at

p. 47.) S.C.'s participation in this program and individual therapy is not enough to

establish changed circumstances. (Accord, In re Marcelo B., supra, 209 Cal.App.4th at

pp. 641-642 [participation in 12-step meetings insufficient evidence of changed

circumstances to warrant a hearing on section 388 petition because father already

received extensive alcoholism treatment with no improvement]; In re A.S., supra, 180

6 In her March 14, 2013 addendum report, Kadas related that S.C., who was then 36
years old, had begun using drugs when she was 19 years old, and had completed
substance abuse treatment programs in 2008 and 2009. S.C. relapsed on
methamphetamine shortly after David was born and failed to complete CRASH in 2012.
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Cal.App.4th at p. 358 [completion of parenting class and participation in individual

counseling insufficient to require evidentiary hearing on section 388 petition].)

Further, S.C.'s petition made no showing of how David's best interests would be

served by depriving him of a permanent, stable home in exchange for an uncertain future.

(See In re Jackson W. (2010) 184 Cal.App.4th 247, 260, in part citing In re J.H. (2007)

158 Cal.App.4th 174, 182-183 [children need stability and permanency, not protracted

legal proceedings that prolong uncertainty for them].) S.C. relies on the existence of a

beneficial relationship between her and David, but the evidence, as related above, was

lacking on that point. The sole assertion made in S.C.'s petition was that it was in David's

best interest to be raised by his biological mother. This assertion is not enough: " '[T]he

presumption favoring natural parents by itself does not satisfy the best interests prong of

section 388.' " (In re Jackson W., at p. 260.) Because the liberally construed allegations

would not have sustained a favorable decision on the section 388 petition, S.C. was not

entitled to an evidentiary hearing and was not denied due process.

II. Father's Appeal

Joining in S.C.'s arguments, father contends the juvenile court erred in finding the

benefits of adoption outweighed his bond with David. Specifically, he points out he lived

with and supported David for almost all of the first seven months of David's life; he had

appropriate weekly visits with David after David's removal from S.C. during which he

fed, changed and played with David; he maintained his weekly visits after he entered the

drug treatment program in September 2012; he made great efforts to comply with

treatment services in order to reunify with David; and he continued his weekly visits,

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missing only a few, through the permanency planning hearing. Father asserts the visits

appeared beneficial and his therapist noted he had a good relationship with David and

was able to see to his needs. Based on this evidence, father argues the social worker's

conclusion that he did not have a secure bond with David is not supported by substantial

evidence. S.C. joins in these arguments.

Setting aside the first prong of the beneficial relationship exception, we conclude

father's showing suffers from the same deficiencies as S.C.'s. That is, father relates the

evidence favorable to him, and ignores the social workers' reports showing he was unable

to set limits and did not provide food, toys or diapers for David for the vast majority of

his visits. His recitation of the evidence ignores the social worker's observation that

David had no reaction to seeing him during visits, and easily separated from him. Father

does not acknowledge Kadas's conclusion that due to the chaotic environment in which

David spent the first few months of his life and inconsistency in father's visits, David was

not securely attached to father. Like S.C., father's contacts with David never went

beyond supervised visitation. Father does not relate evidence showing the requisite

"substantial, positive emotional attachment" between him and David. (In re C.F., supra,

193 Cal.App.4th at p. 555; In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Nor, in

view of the evidence that David was thriving with his foster parents, has father

demonstrated how David would be greatly harmed if his relationship with father was

terminated. (In re Autumn H., at p. 575.) The social workers' reports and addenda, on

which the juvenile court was entitled to rely, constitute substantial evidence that father's

relationship with David was at best loving and pleasant, but that he and David had no

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strong parent-child bond. In sum, father has not shown the beneficial relationship

exception to adoption applies.

DISPOSITION

The judgment is affirmed.

O'ROURKE, J.

WE CONCUR:

NARES, Acting P. J.

AARON, J.

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