In re K.B. CA4/1

Filed 9/9/14 In re K.B. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 K.B. Jr., a Person Coming Under the
Juvenile Court Law.
D065227
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. SJ12289A)
Plaintiff and Respondent,

v.

A.R.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Kenneth J.

Medel, Judge. Affirmed.

Suzanne F. Evans, under appointment by the Court of Appeal, for Defendant and

Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel and J. Jeffrey Bitticks, Deputy County Counsel, for Plaintiff and Respondent.

Terrence M. Chucas, under appointment by the Court of Appeal, for minor.
 A.R. (Mother) appeals from a judgment terminating her parental rights following

contested hearings under Welfare and Institutions Code1 sections 388 and 366.26. She

contends the juvenile court abused its discretion by denying her section 388 petition

seeking return of her child K.B., claiming she addressed the concerns that had prompted

K.B.'s removal by the San Diego Health and Human Services Agency (Agency). Stating

her progress is "substantially comparable" to that of the father in In re S.B. (2008) 164

Cal.App.4th 289, Mother further contends she established both prongs of the parental-

child beneficial exception to adoption (§ 366.26, subd. (c)(1)(B)(i)), warranting denial of

Agency's section 366.26 petition to terminate her parental rights. We affirm the

judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In December 2009, Agency filed a section 300 petition alleging that then 16-

month-old K.B. came within the juvenile court's jurisdiction for Mother's failure to

protect him under section 300 subdivision (b). Agency alleged Mother had ingested 15

unprescribed Klonopin pills while caring for K.B. and was treated for a possible drug

overdose. A welfare check of the home revealed three pipes containing

methamphetamine residue in the room where K.B. slept with Mother and her boyfriend,

Donald K., as well as a steak knife and cigarette lighter in K.B.'s crib. Mother admitted

using methamphetamine a few days earlier. K.B.'s father's whereabouts were unknown.

K.B. was eventually ordered detained in a foster home.

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

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 In a jurisdiction/disposition report, a social worker summarized her interview with

Mother, who denied owning the methamphetamine pipes or doing drugs, and denied that

K.B. was sleeping in his crib where the knife and lighter were found. Mother reported

that she left K.B.'s father due to his violence toward her and had obtained a restraining

order against him that terminated in 2012. She was living with Donald K. and his

family.2 The social worker reported that Mother and Donald K. had been referred for

substance abuse testing but failed to appear. Though Mother had supervised visits with

K.B., the foster mother reported Mother "[did] not seem to know much" about K.B., and

would simply put him in his crib with the television on to fall asleep, and gave him soda

instead of Pedialyte for his ear infection because "he likes [it] a lot." When the foster

mother responded that K.B.'s teeth were rotting, Mother said it was because of his bottle,

2 The record shows that Agency was initially concerned about mother's involvement
with Donald K., who was later arrested on May 15, 2010, for transportation and
possession for sale of methamphetamine. At various times in 2010, social workers
criticized mother for continuing to insist that Donald K. and his family have access to
K.B. when it was not authorized, bringing Donald K. to K.B.'s visits, maintaining her
relationship with Donald K., continuing her dependence on him and his family, and
encouraging K.B. to refer to Donald K. as "dada." Social worker Teresa Acevedo felt
mother did not understand her sobriety was in jeopardy by continuing to live with and be
reliant on another drug-dependent individual (Donald K.), knowing this was one of her
"triggers." Ultimately, Agency recommended that K.B.'s brother, D.K., born in June
2011, would be placed with Donald K. in family maintenance services, the parties agreed
to that recommendation, and the juvenile court terminated its jurisdiction as to D.K. As
to K.B., Agency eventually had no issue with Donald K.'s past; it plainly felt K.B. was
best served by his placement with and adoption by Donald K.'s parents, although Donald
K., D.K., and K.B. would live in the same home. At the section 366.26 hearing, a social
worker testified that the allegations and concerns about Donald K. were investigated and
no longer existed as of July 2013.

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not the soda. The foster mother observed K.B. did not appear close to Mother and did not

cry when he left her.

In March 2010, the juvenile court referred Mother to SARMS (substance abuse

recovery management system) for substance abuse treatment and case management

services. At a document trial on K.B.'s jurisdiction/disposition hearing the court removed

K.B. from Mother's custody, ordered him placed in a licensed foster home, and ordered

services for Mother.

In April 2010, Agency located K.B.'s father, who was residing in Hawaii.3

Agency could not locate willing and able relatives to care for K.B. Social worker

Acevedo reported that during that same month, Mother had attempted to involve Donald

K. in her supervised visits and had "continuously became enraged" about his exclusion,

making a scene in front of K.B. and frightening him. According to Acevedo, when told

how detrimental her aggressive behavior was to K.B., Mother "did not seem to care."

Acevedo reported in addendums that in May 2010, Mother was reported to have a

positive drug test for marijuana, but when Mother was confronted with the test results,

she denied using the substance, claiming she was only in the presence of others using

drugs. Mother later admitted to Acevedo that she had "screwed up" and lied; that she had

3 K.B.'s father is not a party to this appeal, thus we omit background information
related to his involvement with K.B. and Agency. This court affirmed a judgment
terminating reunification services to him in In re K.B., Jr. (Apr. 28, 2011, D058691)
[nonpub. opn.]. K.B.'s father had no contact with Agency between late May 2010 and
July 2010. Agency learned he was arrested on May 14, 2010, for an outstanding warrant
after being found intoxicated. He was again arrested in July 2010 after wielding a knife
and flashlight and attacking a man helping father's ex-girlfriend. In November 2010, the
court terminated father's services.

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used marijuana. Mother failed to undergo drug tests on three additional occasions and

had a diluted test. Substance abuse counselors had reported Mother was slow in progress

and, while attentive, was not participatory.

In July 2010, Mother was ordered and agreed to participate in dependency drug

court. As of August 6, 2010, the court reported her compliant with 21 days of sobriety.

However, Acevedo later reported that Mother had left her residential treatment program

on August 2, 2010. Mother eventually enrolled in outpatient services. Acevedo also

reported that while Mother's visits had been consistent for the most part and her behavior

good, she continued to bring unauthorized people to the visits. Acevedo recommended

that the court terminate Mother's reunification services.

In an addendum report for the six-month status review hearing, social worker

Acevedo reported that in September 2010, Mother and Donald K. had been stopped by

police, who checked their home and found a smoking device on the night table containing

methamphetamine residue, as well as a digital scale. The next day, Mother did not

disclose her police contact to the social worker. She claimed to be attending Narcotics

Anonymous (NA) classes, but did not provide proof. Acevedo expressed concern that

Mother was concealing her circumstances, and her attempts to make changes were not

genuine. Mother had not completed the most basic portion of her case plan: she had

finished only three of 14 parenting classes.

In an addendum, Acevedo reported that in September and October 2010, Mother

had tested dilute twice, and failed to test once. Acevedo had been informed that Mother

was four to five months pregnant, yet she was smoking cigarettes, failed to drug test and

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had tested dilute, which was considered a positive test. Acevedo stated Mother was

"clearly not" applying what she had learned from therapy and drug treatment to her life

situations so as to show K.B. would not reenter the same situation from which he was

removed. Mother had stopped attending NA/AA meetings, and did not have a sponsor.

Acevedo reported that while Mother was participating in services, she had not

demonstrated any real change.

The contested six-month status review hearing took place in November 2010, at

which time the court ordered that K.B. continue to be placed in a licensed foster home.

In November 2010, the court continued services to Mother, who it found had made some

progress with her case plan.

In a report for the 12-month status review hearing, Acevedo observed that Mother

had been attending therapy and substance abuse treatment. However, while she had been

attending NA/AA meetings, she still did not have a sponsor. Acevedo reported that

Mother's complaints of K.B.'s foster home placement in Oceanside and the climate

between her and his caregivers had resulted in the caregivers giving notice, and Agency

had to find another placement for K.B. Acevedo observed Mother's visitations with K.B.

were appropriate, but she had to make improvements and demonstrate a longterm

dedication to sobriety. Mother continued to assert that everyone involved in her case had

"wronged" her.

At the February 2011 12-month status review hearing, the court found Mother had

made substantive progress with her case plan, and ordered Agency to continue services to

her. K.B. was again ordered placed in a licensed foster home.

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 For Mother's 18-month review hearing, Agency recommended Mother be given an

additional six months of services. Social worker Acevedo reported that Mother had been

attending services and doing well; that she completed drug court in April 2011 and

graduated from the South Bay Women's Recovery Center in May 2011. Mother had also

been attending NA and AA meetings as required, was engaged in individual therapy, and

had regular visitation including overnight visitation with K.B. Mother was living with

her maternal aunt, and was due to give birth in June 2011. Mother and K.B. were in

once-a-week therapy separately and together, and K.B. showed affection and was happy

in Mother's presence. Acevedo recommended that K.B. be placed with Mother.

The juvenile court adopted Agency's recommendations, and in June 2011 ordered

K.B. placed with Mother. It ordered continued services and set a maintenance review

hearing for December 2011. Before that hearing, however, Mother's whereabouts

became unknown and Mother stopped returning social workers' calls. Agency sought a

continuance to obtain information about Mother's circumstances. Two weeks later, social

worker Christina Morse reported that Mother had ended her therapy sessions in June

2011 when she gave birth to D.K., a son from Donald K. K.B., who was then age three,

was hitting, kicking, not sharing and having tantrums at school. Mother reported she was

attending two to three NA/AA meetings a week, but Morse never received her meeting

slips, and though Mother claimed to be on the fourth step, she was unable to describe that

step to Morse. However, Mother's December 13, 2011 on-demand drug test was normal.

Agency recommended K.B. remain with Mother and that they receive six months of

family maintenance services.

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 Social worker Morse provided a status on June 20, 2012. She reported Mother

was unemployed and homeless; she had been living from motel to motel since May 2012

and was supporting her children with public assistance. Mother had been lying to

Agency for the past year about her living circumstances, and she in fact had been living

with Donald K., then with her father, and then with another man, George S., who had an

extensive criminal history of domestic violence, drug charges and theft. Also, in June

2012, new allegations had arisen that were under investigation: that her father had picked

K.B. up by the arm, dangled him, and spanked him on the bottom while Mother was

residing in his home; that Donald K. yelled at the younger son and hit him with an open

hand across his face; and that Mother's aunt came to Mother's hotel room and removed

her Klonopin so that Mother would not overdose on the medication. Both Mother and

Donald K. had filed abuse allegations against each other in family court. Morse reported

that K.B. had no health concerns and his immunizations were up to date, but he was still

hitting, kicking and having tantrums at school, though with less frequency. While K.B.

was participating in therapy sessions at school, he and Mother were no longer seeing their

therapist, and Mother had not followed through with referrals for speech and behavior

modification services for K.B.

Mother had claimed to be attending NA/AA meetings, but Morse learned she had

used an unauthorized NA/AA stamp to sign attendance sheets. Mother also admitted to

Morse that she used the synthetic marijuana "Spice," and that she had last smoked it in

February or March. Though Mother had negative drug tests in December 2011, and April

and May 2012, drug testing specialists confirmed that Spice would not show up on a drug

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test. Mother had stopped taking her prescribed psychotropic medication. Agency created

safety plans for Mother, and Mother agreed not to have contact with either Donald K. or

George S., to resume her medication, meet with her treating physician, resume her

individual therapy, and seek permanent housing.

Though Agency had recommended K.B. remain with Mother and she receive six

additional months of maintenance services, a month later it filed a section 387 petition

asking that K.B. be removed from her care and placed with a foster caretaker. Agency

alleged Mother was no longer willing or able to provide K.B. adequate care and

supervision in that she had been living with George S., who had an extensive criminal

history, and was no longer using her prescribed psychotropic medication or consulting

with her treating physician. In a lengthy detention report discussing the recent events

including Mother's dishonesty and synthetic marijuana use, social worker Morse

summarized the June 2012 referrals regarding Mother and reached conclusions about

them. Morse recounted family court allegations from Donald K. concerning his

relationship with Mother and Mother's mistreatment of the children, and Mother's

responsive allegations. Morse reported that Mother had denied having further contact

with George S. after Agency told her to have no contact, but eventually admitted he had

been to the hotel where she was staying. She also admitted getting pregnant with George

S.'s child and miscarrying. Morse expressed concern about Mother's inability to follow

through with housing referrals, her inability to inform the Agency of violent or abusive

events until after they occurred, and her unstable mental health. She set forth her

interviews with Mother, Donald K., Mother's maternal aunt, Donald K.'s parents, and

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children K.B. and D.K. Agency recommended Mother return to services to address her

ongoing poor judgment, mental health symptoms, drug use, and relationship problems as

well as further develop her parenting skills. In July 2012, the juvenile court ordered K.B.

detained with Polinsky or another approved foster home.

The court set the matter for a contested jurisdictional and disposition hearing, and

in the interim ordered the parties to attend a settlement conference. In September 2012,

Mother relocated to Northern California to live with her mother. At the December 5,

2012 settlement conference, the juvenile court adopted Agency's recommendations,

continued K.B. as a dependent child, and removed him from Mother. It ordered K.B.

placed with a non-relative extended family member (NREFM), terminated Mother's

services but ordered visitation, and set the matter for a section 366.26 selection and

implementation hearing.

In a March 2013 report prepared for the upcoming section 366.26 hearing, Agency

sought a 90-day continuance to assess the case. Social worker Keisha Blair reported that

as of September 2012, K.B. was placed in the NREFM home of Donald K.'s parents,

Edna and Walter H. K.B. was with his brother, D.K., who had been placed with Donald

K. in the same home. Blair observed K.B. had had eight placements over his lifetime.

Though Blair had been on the case since January 2014, Mother had not contacted her to

inquire about her children or request visitation, and she had not had any opportunity to

witness Mother's visits with K.B. Blair reported that K.B. was generally and specifically

adoptable, and Edna and Walter H. had expressed an interest in giving him a permanent

home through adoption. Blair sought additional time to assess the caregivers in part

10
because there was a current physical abuse referral and Donald K. had informed Blair

that his Mother was only adopting K.B. to give him to Donald K.

In May 2013, Mother filed a petition under section 388 seeking an order placing

K.B. with her. Agency issued addendum reports in June, November and December 2013

for the section 366.26 hearing.4 In June 2013, social worker Blair reported that Mother

had been contacting K.B. once a week since mid-March 2013 and having brief

conversations with him. She had not requested visitation, nor had she contacted Blair to

inquire about K.B.'s well-being. Blair reported that K.B. was an attractive four year old

who had no major health or developmental problems, and he was affectionate and

engaging with his caregivers Edna and Walter H., who continued to express their

commitment and desire to provide K.B. with permanence through adoption. Blair

recommended the court deny Mother's section 388 petition. She reported that while

Mother claimed to have undergone changed circumstances, there was no evidence she

had a safe home, was taking all of her prescribed medication, or was consulting with a

psychiatrist. When asked, K.B. stated he wanted to live with his grandmother Edna and

"daddy" (Donald K.), where he had been living since September 2012. His caregivers

began to develop their relationship with K.B. when he was nine months old; they ensured

4 After the initial April 3, 2013 continuance for the section 366.26 hearing, the court
on July 1, 2013, set the matter for contested joint section 388 and section 366.26
hearings. In August 2013, the matters were again continued to October 2013 due to the
unavailability of D.K.'s social worker. In October 2013, the matter was again continued
because one of the attorneys was leaving for vacation the next day and could not
complete the trial. On the date set for trial, November 8, 2013, mother's counsel declared
a conflict. A few days later, the court appointed new counsel and the matters were set for
trial in January 2014.

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K.B. attended all of his medical appointments and K.B. looked to them to meet his needs

when he was injured or needed comforting. Blair concluded there was no parental

relationship between K.B. and Mother; she recommended Mother's parental rights be

terminated and adoption to be the most appropriate plan.

In November 2013, social worker Amy Ausderan made the same

recommendations. She reported there had been several referrals to Agency concerning

Mother and her newborn daughter, and that in September 2013, workers who were

visiting Mother's home found Mother confused, "almost stoned," with slowed speech and

having difficulty grasping what workers were saying. Mother stated she was taking

medication for her severe anxiety, but did not show it to the worker, claiming it was in a

bedroom where the baby's father was sleeping. The worker expressed concern that the

baby was left in her bassinet for long periods of time and when Mother blamed the child's

grandmother, the worker had to tell her she was ultimately responsible for her daughter's

care if she was to leave her for long periods of time. Mother responded, "Well I guess I'll

have to find a new babysitter then." Though Agency documented concerns over the

cleanliness of the house and the baby's yeast infections, the general neglect referral was

eventually closed as unfounded.

Ausderan reported that K.B.'s attorney had spoken with K.B.'s therapist, who had

very positive things to say about the caregivers' commitment and participation in K.B.'s

therapy. K.B.'s therapist had observed in one visit that Donald K. was appropriate, and

that K.B. did not fear him in any way. Mother's only contact with K.B. had been weekly

phone calls; she had never requested visitation and at times Mother became irate and

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inappropriate during the calls. Though Mother had been appropriate during two

supervised visits in July 2013, Mother had not demonstrated an ability to provide for

K.B.'s physical, emotional, or medical needs on a consistent basis, she was unable to

address her substance abuse addiction, and she did not maintain a consistent presence in

K.B.'s life. Ausderan stated K.B. enjoyed his visits with Mother, but their relationship

did not rise to the level of a parent-child bond and did not outweigh the benefits of

permanency, stability and safety that adoption would provide. Mother still had not given

Agency proof of her completion of a substance abuse treatment program, negative drug

test results, and her compliance with a psychotropic medication regimen or consultation

with a mental health professional. Ausderan stated Mother had a history of drug abuse

that needed to be addressed, and it was not in K.B.'s best interest to be placed with her, as

he had had numerous placements and needed a stable, drug- and violence-free home

where his needs were met. According to Ausderan, K.B.'s current home with his

caregivers met all of those basic needs.

Mother had two supervised visits with K.B. and his brother on November 13 and

14, 2013. Mother arrived on time and brought candy and a toy for K.B. She had

purchased pizza kits for the children to make and was very playful and energetic, giving

the boys praise when they made good choices. K.B. did not appear to experience distress

upon separating from Mother at the end of the visit; he did not cry or ask to stay longer,

and he appeared eager to go with his caregiver and separated with ease. The next day,

Mother was excited to see and hugged K.B., who did not initiate any outward display of

affection, but did not object to Mother's touch. She brought food and drink, but

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understood K.B. had eaten at school. Mother was very playful, riding down the slide,

pushing the boys on bicycles, and holding K.B.'s hand while he rode a skateboard. She

drew a picture of her, K.B. and his brother on a chalkboard and told them she was saying,

"I love you." K.B. did not respond but retrieved some toys and began playing on his

own. After a while, Mother encouraged K.B. to play with them, then asked him to give

her a big hug. K.B. hugged her. K.B. separated easily from Mother and went with his

caregiver easily. Though Mother had scheduled another visit, she cancelled it because

she did not want K.B. playing outside in the cold weather.

Mother's New Section 388 Petition

In January 2014, Mother withdrew her May 2013 petition and filed a new petition

under section 388 asking the court to vacate the section 366.26 hearing, place K.B. with

her, and order family maintenance services, or alternatively for a lesser permanent plan

such as long term foster care. Mother claimed she and K.B. were sufficiently bonded to

suggest reunification was possible and beneficial. She also claimed she had been

managing her health via consistent care and had followed her medication regimen for

many months. Mother attached letters from physician's assistants. One stated Mother

had been actively searching for work, and she had expressed a desire to be healthy and a

positive contributor to the community.

Combined Section 366.26 and Section 388 Contested Hearings

On January 7 and 8, 2014, the juvenile court heard Mother's section 388 petition

and the contested section 366.26 matter; the parties stipulated that the testimony and

admitted evidence would be considered for both matters.

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 Mother testified that since June or July 2013 she had been under the care of

"telemed" psychiatrists with Ampla Health for her anxiety, depression and insomnia, and

was taking medications Ativan, Trazodone, Abilify, Effexor, Prilosec, Demerol and

Benadryl for her conditions. She felt the medications helped her with her insomnia,

anxiety and depression, and she was a "completely changed" person. Though Mother

testified she was clean and sober, she was not engaged in any drug or alcohol

rehabilitation (claiming she was caring for her daughter), nor was she attending N.A. or

A.A. meetings. Mother's last time in rehabilitation was October 2012 when she

underwent nine months of outpatient treatment and one month of inpatient treatment.

She had been living in Gerber, California for just over a year and was in a month-to-

month housing arrangement.

Mother testified she tried to call K.B. every day and left messages, but only

actually spoke with him once or twice a week, or sometimes not at all. Her longest call

was 10 minutes, and she testified that when she called K.B., he would ask her when she

was coming to see him and live with him. She saw him on the last court date in July and

also in November when she brought food and played with him. Mother had a room set

up for K.B. in her home with a bed and desk for homework.

Social worker Ausderan testified that though Agency had recommended that

Mother engage in substance abuse treatment, it had no information that she had done so

since July 2012 when K.B. was removed from her care. At that time, Mother was not

taking her prescribed medication because she wanted to prove to her family that she did

not need it. Agency had also recommended Mother participate in medication

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management treatment and asked Mother to provide documentation for that, but it

received only a letter that was unspecific about her medications, diagnosis or whether a

mental health professional was involved, and Ausderan never received a return call on

her follow up inquiries. Mother never complied with parent/child attunement therapy as

Agency had recommended. Agency had not restricted the number of times Mother could

visit K.B. nor had it prohibited her from traveling and seeing him in a supervised setting,

yet Mother saw K.B. only five times since her move to Northern California: twice in July

2013, once in September 2013, and twice in November 2013. Nor had Agency precluded

Mother from participating in K.B.'s therapy, schooling or education. Though Ausderan

did not observe Mother and K.B.'s initial greetings during recent visits, she did not see

K.B. taking the initiative to have physical or emotional contact with Mother such as

hugging or kissing her, and he was not distressed or sad at the end of the visits. K.B.'s

caregivers told her he did not ask to see or call her. Mother had never participated in

K.B.'s therapy; his caregiver Edna took him to his weekly visits, participated in in-home

programs, attended his individualized education plan meetings, and attended other

meetings and parent/teacher conferences. K.B. had shown improvement with therapy.

He was swearing less, able to calm down faster and accomplish some tasks.

Ausderan testified that K.B. was very attached to his caregivers and household

members, and wanted to live with "daddy," referring to Donald K., who lived with K.B.'s

brother in the same household as K.B.'s caregivers. K.B. had had eight placements,

which compelled against moving him again, and he presently had consistency and

stability with his caregivers. Ausderan felt it was in K.B.'s best interest to maintain his

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relationship with his brother D.K.; they were close siblings, enjoyed being together, and

had lived together for D.K.'s entire life. Agency still recommended denial of Mother's

request for placement because K.B. was in a stable home attached to his current

caregivers, who were willing and able to provide him with longterm care and services

from which he was benefitting.

According to Ausderan, even assuming Mother's testimony was true, Agency had

no knowledge of significant progress in Mother's treatment, and felt it was not in K.B.'s

best interests to live with Mother. Ausderan pointed to Mother's history of substance

abuse but lack of aftercare treatment, and expressed concern about Mother's history of

overdosing on medication or not taking the prescribed amount, which needed to be

continually addressed. Since July 2012, Mother had not provided Agency with

information showing she was maintaining stability on her medications. Even if Mother

had been taking prescription medication for four months as she had claimed, Ausderan

testified it was not a significant amount of time in relation to Mother's history; Ausderan

wanted to see Mother with at least a year to a year and a half of stability on prescription

medication. Ausderan testified it would not be detrimental to K.B. if Mother's parental

rights were terminated; Mother had failed to maintain her role as a parent, had only

minimal contact with him, and was not providing his day to day care.

Stephen Grant, an Ampla Healthcare Center physician's assistant, was telephoned

and sworn in. He testified he had written a letter on Ampla letterhead in December 2013

on Mother's behalf based on an approximately 20-minute conversation with her. Grant

testified Mother seemed to be taking her medication and doing well on it, and saw no

17
evidence of depression or anxiety. However, he could not recall reviewing Mother's

medical records, did not recall her mental health history nor was familiar with her

medications, and did not know how many times she had been seen at Ampla. Grant had

no information about the child protective services allegations against her. The juvenile

court excluded Grant's December 2013 letter on hearsay grounds, and also excluded

certain documents purporting to show Mother's prescriptions.

The court denied Mother's section 388 petition. It acknowledged that Mother was

trying to turn her life around and had made efforts to stay on appropriate medication.

However, it also took into account Mother's four-year history of compliance and relapse,

and ruled the circumstances showed only the beginning of change, not the sort of change

that would permit K.B.'s return to Mother. The court pointed out that due to Mother's

move it did not have the sort of Agency supervision that would allow a social worker to

testify about changes Mother had made. Further, the court found due to the lack of

significant visitation by Mother, the significant bonding between K.B. and his caretakers,

and the stability of K.B.'s current placement, it would not be in his best interests, but in

fact detrimental to his emotional and mental stability, to return him to Mother. Thus, the

court concluded it did not have evidence to show a change had actually taken place; and

despite Mother's positive steps it could not find changed circumstances warranting the

requested relief by any evidentiary standard.

As for Agency's petition under section 366.26, social worker Blair testified that

though Agency had had previous concerns that one of the caregivers intended to give

Donald K. sole responsibility for K.B.'s care, Agency no longer had that concern in view

18
of the fact the caregivers had participated in Agency's recommended services, and they

had shown they were dedicated to giving K.B. permanency. Blair pointed out the

caregivers had an extended family home with Donald K. living in the same home as K.B.,

and had clarified that they were all going to participate in K.B.'s care, not merely adopt

him and give him to Donald K. Blair acknowledged Donald K.'s past drug possession

and reports of possible corporal punishment of K.B., as well as K.B.'s description of

Donald K. as "scary," but Agency had investigated those concerns or allegations and they

no longer existed from July 2013 to January 2014. Agency had no concerns that Donald

K. was physically abusing K.B., that K.B.'s caregivers were not providing for his daily

needs, that they had not adequately prepared themselves to have him in their home on a

consistent basis, or that they were not fully committed to his care. Social worker

Ausderan reiterated some of her conclusions about Mother's November 2013 visits with

K.B. She did not agree that the behavior she witnessed represented a mother/child

relationship.

The juvenile court found clear and convincing evidence K.B. was generally and

specifically adoptable: his caregivers wanted to adopt him, and there were 39 families in

San Diego that would adopt him. It found Mother's family reunification services had

been terminated, which was an independent ground for terminating parental rights unless

an exception applied. The court found Mother did not maintain regular visitation,

negating any finding of a parent/child bond. However, the court went on to rule there

was no evidence of any factor establishing a compelling reason that termination of

Mother's parental rights would be detrimental to K.B., and there was no evidence that the

19
parent/child bond existed. The court adopted Agency's recommendation and terminated

Mother's parental rights, finding clear and convincing evidence that there were no

circumstances making termination of such rights detrimental to K.B. and it was in K.B.'s

best interests to be adopted.

Mother appeals from the ensuing judgment.

DISCUSSION

I. Denial of Section 388 Petition

Mother contends the juvenile court abused its discretion by denying her section

388 petition because she presented substantial evidence she had addressed all of the

concerns leading to K.B.'s removal from her, and the court's ruling was unsupported by

substantial evidence. Specifically, Mother maintains the evidence showed she was no

longer living with George S., but had moved to Northern California in December 2012 to

live with her mother in a safe home with a room appropriate for K.B. She argues "there

was no substantial evidence [she] was not exhibiting stable mental health or was failing

to take her medication," but instead, had provided proof she was taking the medications

for her conditions, was stable and happy, and was receiving mental health and psychiatric

treatment. She argues there was no credible evidence to back up Agency's claims that

she needed a substance abuse program; to the contrary, she argues there was no evidence

she was enmeshed with drugs. Instead, she was living with her young daughter and

though there had been referrals for general neglect, they were closed as unfounded.

20
A. Legal Principles and Standard of Review

Section 388 allows a parent of a dependent child to petition the court "to change,

modify, or set aside any order of court previously made . . . ." On such a modification

petition, the juvenile court must determine whether the parent has demonstrated by a

preponderance of the evidence both that there was new evidence or a change of

circumstances and that it would promote the child's best interests to change, modify or set

aside the previous order. (See In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Casey D.

(1999) 70 Cal.App.4th 38, 47.) " '[I]t is not enough for [the petitioner] to show just a

genuine change of circumstances under the statute. The [petitioner] must show that the

undoing of the prior order would be in the best interests of the child.' " (In re Mickel

O. (2011) 197 Cal.App.4th 586, 615; see In re D.B. (2013) 217 Cal.App.4th 1080, 1094

[party moving under section 388 cannot simply rely on new evidence that may often arise

under the passage of time, the party must show that the change in the order will be in the

minor's best interests].)

Further, the petition must show changed, not changing, circumstances. (In re

Mickel O., supra, 197 Cal.App.4th at p. 615; In re Casey D., supra, 70 Cal.App.4th at pp.

45-47.) And "[n]ot 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. [Citations.] . . . 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, 612.)

21
 The juvenile court's decision on the petition is addressed to its sound discretion

and will not be disturbed on appeal in the absence of a clear abuse. (In re Jasmon O.,

supra, 8 Cal.4th at pp. 415-416.) Under this standard, we do not reverse unless the

court's decision exceeds the limits of legal discretion by being arbitrary, capricious, or

patently absurd. (See In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Katelynn Y.

(2012) 209 Cal.App.4th 871, 881.) " 'When two or more inferences can reasonably be

deduced from the facts, the reviewing court has no authority to substitute its decision for

that of the trial court.' " (In re Stephanie M., at p. 319; In re J.C. (2014) 226 Cal.App.4th

503, 525-526.)

B. Analysis

Applying the foregoing principles, we cannot say the juvenile court abused its

broad discretion in finding Mother had not demonstrated sufficiently changed

circumstances, but only changing circumstances. We disagree with Mother's assessment

of the evidence. Agency had been concerned about Mother's transient living situation, as

well as her failure to comply with her prescription medication regimen or see her treating

psychiatrist. The evidence showed Mother was not working and had not established her

own residence, but had moved in with her mother in a month-to-month tenancy. In

relation to Mother's four year history of unhealthy and uncertain living situations, the

court reasonably concluded that Mother had shown "hopeful beginnings" of change, but

not evidence to a preponderance that her circumstances had changed so significantly as to

compel it to place K.B. with her.

22
 Additionally, though Mother testified at the hearing she was in compliance and

engaged in online psychiatric visits for the past few months, given Mother's history of

dishonesty to social workers about her housing and attendance at NA/AA meetings, the

juvenile court was well within its discretion to give little weight to her testimony. Mother

did not present evidence to substantiate her claims; there was no written record of the

prescriptions Mother was taking, no evidence from any treating psychiatrist or physician,

and Grant's testimony was unspecific with little foundation: he admitted he only could

reach an assumption that Mother was appropriately taking medications based on her

coming in for refills at appropriate times. None of Mother's evidence rose to the level of

competent medical evidence she was complying with a psychotropic medication regimen

or seeing a physician on an appropriate basis. Even assuming the court accepted the truth

of Mother's statements, it could reasonably conclude that four months of compliance was

simply the start of change, and not evidence of genuine, significant change warranting a

modification of its order.

Finally, given Mother's past drug use and 2012 relapse into synthetic drug use, it

was Agency's recommendation throughout K.B.'s dependency and as late as 2013 that

Mother maintain her sobriety and attend NA/AA meetings at least once a week and

obtain a sponsor. But Mother admitted she was not attending such meetings or receiving

any type of substance abuse aftercare. And, in September 2013 workers found her

confused and appearing "stoned," and Mother could not show them she was taking

anxiety medication as she claimed.

23
 We reject Mother's argument that the juvenile court's ruling is as deficient and

speculative as that in In re M.V. (2006) 146 Cal.App.4th 1048.5 She maintains the court

failed to consider her "critical" evidence that she was attending to her mental health

issues or the absence of evidence she was abusing alcohol or drugs. But the juvenile

court had before it Agency's April, July, October, November and January 2013 reports

and addenda, as well as the social workers' testimony, and contrary to M.V., the record is

clear that the juvenile court understood the pertinent inquiry and Mother's burden on her

motion. This case does not present the same circumstances as M.V.

Nor can we conclude the juvenile court erred by ruling Mother had not

demonstrated that an order giving her custody was in K.B.'s best interests. "To

understand the element of best interests in the context of a [section] 388 petition filed . . .

on the eve of the [section 366.26] hearing, we turn to the Supreme Court's language in In

re Stephanie M., supra, 7 Cal.4th 295: '[A]t this point "the focus shifts to the needs of the

child for permanency and stability" [citation] . . . . A court hearing a motion for change

of placement at this stage of the proceedings must recognize this shift of focus in

determining the ultimate question before it, that is, the best interests of the child.' " (In re

J.C., supra, 226 Cal.App.4th at p. 526.)

5 In In re M.V., supra, 146 Cal.App.4th 1048, the appellate court found the juvenile
court's findings prevented meaningful review: "[T]he findings before us are not
sufficient to support a finding of changed circumstances or a finding that the proposed
change was in M.V.'s best interests. Our conclusion is bolstered by the absence of any
indication on the record that the court understood the necessity of finding that the agency
had the burden of proving by a preponderance of the evidence that changed
circumstances existed and that the proposed change was in M.V.'s best interests." (Id. at
pp. 1059-1060.)

24
 Here, the evidence established that K.B. had a stable placement with Edna and

Walter H., who had been in his life since he was nine months old and who sought to

adopt him and provide him permanency. They provided not only for his basic needs for

emotional and developmental support and a stable and safe home, but also his needs for

therapy and specialized education. Mother had had only five documented visits with

K.B. since her move to Northern California (with a period of approximately 10 months

where she did not visit him at all) and she showed no interest in scheduling weekly

visitation with K.B. or participating in his education and therapy. Mother showed no

interest in K.B.'s progress with his behavior. Further, social worker Ausderan

contradicted Mother's account of her visits with K.B.; Ausderan did not observe the sort

of close, loving relationship Mother described.

Mother suggests we should apply a "paradigm" developed in In re Kimberly F.

(1997) 56 Cal.App.4th 519 in which the appellate court set out a list of nonexhaustive

factors to consider in determining the child's best interest: the seriousness of the problem

leading to dependency and the reason that problem was not overcome by the time of the

final review; the strength of relative bonds between the dependent children to both parent

and caretakers and the length of time a child has been in the dependency system in

relationship to the parental bond; the degree to which the problem may be easily removed

or ameliorated; and the degree to which it actually has been. (Id. at pp. 530-532.) These

factors, however, focus primarily on the parent, and as the court in In re J.C. correctly

observed, "the interests of the parent and the child have diverged by the point of a

[section 366.26] hearing to select and implement a child's permanent plan." (In re J.C.,

25
supra, 226 Cal.App.4th at p. 527 [declining to apply Kimberly F. factors "if for no other

reason they do not take into account the Supreme Court's analysis in In re Stephanie M.,

applicable after reunification efforts have been terminated"]; see Cynthia D. v. Superior

Court (1993) 5 Cal.4th 242, 254.) Our focus must be on the child's need for permanency

and stability; K.B. has a fundamental independent interest in belonging to a family unit,

being protected from abuse and neglect, and to have a placement that is stable and

permanent and allows the caretaker to make a full emotional commitment to him. (In re

Stephanie M., supra, 7 Cal.4th at p. 317; In re Marilyn H. (1993) 5 Cal.4th 295, 306,

309.)

The question here, after Mother's reunification services have terminated, is

whether Mother showed how her proposed change would advance K.B.'s need for

permanency and stability. (In re J.C., supra, 226 Cal.App.4th at p. 527.) It is not enough

for Mother to merely assert she was doing better and that there was a sufficient bond such

that reunification would be beneficial; she must rebut a presumption that continued

placement with his caretakers was in K.B.'s best interest. (In re Marilyn H., supra, 5

Cal.4th at p. 310.) We conclude on this record Mother did not establish that K.B.'s need

for permanency and stability would be advanced by reunification efforts or by his return

to her custody. The juvenile court found Mother's testimony and evidence lacked

sufficient weight and credibility to carry her burden of proof, and we will not reweigh the

evidence or reassess credibility. (See In re Casey D., supra, 70 Cal.App.4th at pp. 52-

53.)

26
 II. The Juvenile Court Properly Concluded Mother Failed to Establish the Parental

Benefit Exception to Adoption

A. Legal Principles

At a section 366.26 permanency planning hearing, the juvenile court determines a

permanent plan of care for a dependent child, which may include adoption. (In re S.B.,

supra, 164 Cal.App.4th at p. 296; In re Casey D., supra, 70 Cal.App.4th at p. 50.) "If the

dependent child is adoptable, there is strong preference for adoption over alternative

permanency plans." (In re S.B., at p. 297; In re Michael G. (2012) 203 Cal.App.4th 580,

588.)

In order to avoid termination of parental rights and adoption, a parent has the

burden of showing that one or more of the statutory exceptions to termination of parental

rights set forth in section 366.26, subdivision (c)(1)(A) or (B) apply. (In re Scott B.

(2010) 188 Cal.App.4th 452, 469.) The exceptions permit the court, "in exceptional

circumstances," "to choose an option other than the norm, which remains adoption." (In

re Celine R. (2003) 31 Cal.4th 45, 53.) The so-called parental benefit exception applies

when there is "a compelling reason for determining that termination [of parental rights]

would be detrimental to the child due to . . . the following circumstances: [¶] . . . The

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), italics added.)

"The 'benefit' necessary to trigger this exception has been judicially construed to mean,

'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

27
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 J.C., supra, 226 Cal.App.4th at pp. 528-529; see also In re Autumn

H. (1994) 27 Cal.App.4th 567, 575.) The parent asserting the exception has the burden of

proving it by a preponderance of the evidence. (In re J.C., at p. 529.)

We apply the substantial evidence standard of review to the factual issue of the

existence of a beneficial parental relationship, and the abuse of discretion standard to the

determination of whether there is a compelling reason for finding that termination would

be detrimental to the child. (In re J.C., supra, 226 Cal.App.4th at pp. 530-531; In re K.P.

(2012) 203 Cal.App.4th 614, 621-622; In re Bailey J. (2010) 189 Cal.App.4th 1308,

1314-1315.) The latter determination "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

adoption . . . ." (In re J.C., at p. 531.)

B. Substantial Evidence Supports the Juvenile Court's Finding that Mother Did Not

Engage in Regular Visitation and Contact with K.B.

Mother contends she presented evidence of a loving parent-child relationship with

K.B., both when they were together and living apart, so as to establish the beneficial

parental relationship exception to adoption under section 366.26, subdivision (c)(1)(A).

28
 On the issue of whether Mother maintained "regular visitation and contact" within

the meaning of section 366.26, subdivision (c)(1)(B)(i), the juvenile court concluded:

"[W]hile [Mother's] telephone contact was well-intentioned, . . . the period of time that

went by without face-to-face visitation between mother and child was highly significant

and there's no way that any reasonable person could conclude that that constituted regular

visitation between the mother and child." It found regular visitation and contact with

K.B. had not occurred, which prevented application of the beneficial parental relationship

exception to adoption.

Mother argues the evidence does not support this finding. She asserts that while

she lived in San Diego, she had good face-to-face visits with K.B., set appropriate limits,

and remained in close proximity during visits. She points to the circumstances before

K.B.'s second removal from her: evidence of two one-hour visits she had with K.B. in

October 2010, in which she was reported to have acted appropriately and K.B. greeted

and went easily to her.6 Mother states that once she moved to Northern California, she

"was able to build on the strong bonded relationship she had already established [in that

she] talked to him on the phone as often and as long as she could."

Mother fails to acknowledge evidence that for about a 10-month period after her

September 2012 move to Northern California (from approximately September 2012 to

June 2013), she did not see K.B. at all. Reports indicate that as of March 2013, Mother

was only engaging in once-a-week telephone contact with K.B., having brief

6 The visit monitor, however, could not report for either visit that K.B. did not want
the visit to end.

29
conversations with him without requesting any visitation or inquiring about his well-

being. At the section 366.26 hearing, Mother admitted that during some but not all weeks

she spoke with K.B. only once or twice over the phone, the longest call being 10 minutes,

though she claimed she tried to call every day and left messages. She visited K.B. five

times from the time of her September 2012 move to the January 2014 section 366.26

hearing, despite the fact Agency had never placed any restrictions on the number of times

she could travel and see him in a supervised setting. Mother does not claim that K.B.'s

caregivers prevented her from engaging in more frequent visitation or contact, and there

is no evidence they did so.

This court has made clear that sporadic visitation is insufficient to satisfy this

prong of the beneficial relationship exception. (In re C.F. (2011) 193 Cal.App.4th 549,

554.) "Regular visitation exists where the parents visit consistently and to the extent

permitted by court orders." (In re I.R. (2014) 226 Cal.App.4th 201, 212, citing In re

Brandon C. (1999) 71 Cal.App.4th 1530, 1537.) We conclude evidence of Mother's

minimal visitation and contact here—five visits in the span of about 16 months, and brief

telephone contact once a week—amply supports the juvenile court's finding that Mother

had not satisfied this prong.

C. The Juvenile Court Did Not Abuse its Discretion in Finding The Benefit of

Maintaining the Parent-Child Relationship Did Not Outweigh the Benefit of Adoption

Mother contends she demonstrated it was in K.B.'s best interests to continue his

relationship with her. Distinguishing cases in which courts found no evidence of a

beneficial relationship (In re Autumn H., supra, 27 Cal.App.4th 567; In re C.F., supra,

30
193 Cal.App.4th 558; In re Casey D., supra, 70 Cal.App.4th 38), Mother argues she did

not relapse as the mother did in In re C.F. but remained "totally focused" on K.B., she

was "not merely a friendly visitor" to K.B., and she "satisfied all of [K.B.'s] needs when

they were together." According to Mother, K.B. relied on her, was never uncomfortable

with her, and "came home in good spirits and good health. . . ."

To meet this prong of the exception, Mother "must show more than frequent and

loving contact or pleasant visits," but that she "occupies a parental role" in K.B.'s life. (In

re C.F., supra, 193 Cal.App.4th at pp. 555, 558-559; In re Mary G. (2007) 151

Cal.App.4th 184, 207.) As we have stated, Mother must show her "relationship promotes

the well-being of [K.B.] to such a degree as to outweigh the well-being [he] 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 Autumn

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

Additionally, Mother must not only demonstrate the positive aspects of her

relationship with K.B., but "must show [he] would suffer detriment if his . . . relationship

with the parent were terminated." (In re C.F., supra, 193 Cal.App.4th at p. 555.) Indeed,

severing of the relationship must " 'deprive the child of a substantial, positive emotional

attachment such that the child would be greatly harmed.' " (In re Marcelo B. (2012) 209

31
Cal.App.4th 635, 643.) Mother " 'may not derail an adoption merely by showing [K.B.]

would derive some benefit from continuing a relationship maintained during periods of

visitation with the parent.' " (Ibid.)

Mother's showing again focuses on early visits between her and K.B. before his

second removal from her, and ignores the fact that K.B. had been living for more than

half his life with his caretakers, who provided for all of his physical, emotional and

special needs, and with whom K.B. wished to live. There is no bonding study

establishing a primary maternal relationship, and Mother's evidence disregards the social

worker's conclusions that she had not demonstrated an ability to provide for K.B.'s

physical, emotional or medical needs, and simply did not share a parent/child relationship

with K.B. Mother manifestly has not shown that severing her natural parent/child

relationship would deprive K.B. of a substantial, positive, emotional attachment such that

he would be greatly harmed.

We are unpersuaded by Mother's comparison of these circumstances to other

cases, including those in In re S.B., supra, 164 Cal.App.4th 289. In In re S.B., this court

reversed a finding that the beneficial parent-child relationship exception did not apply

after concluding a father had established his daughter S.B. would be greatly harmed by

the loss of the significant positive relationship she shared with him. The father had

complied with " 'every aspect' " of his case plan, frequently visited his daughter, and was

patient and loving to her. (Id. at p. 298.) A bonding study described the bond between

the father and child and parent as " 'fairly strong' or 'moderate.' " (In re S.B., at p. 295.)

32
The psychologist who had conducted the study testified there was a potential for harm to

S.B. were she to lose the parent-child relationship. (Id. at p. 296.)

We explained: "For the first year after she was removed from parental custody,

S.B. continued to display a strong attachment to [father]. She was unhappy when visits

ended and tried to leave with [father] when the visits were over. [Father] was sensitive to

S.B.'s needs. Social worker Brown noted, '[father] consistently puts his daughter[']s

needs and safety before his own.' S.B. responded to [father's] attention. During one visit,

S.B. 'sat on [father's] lap . . . [and] proudly showed off the pink tennis shoes he had

bought her.' The record clearly establishes S.B. initiated physical contact with [father].

Dr. Kelin observed that S.B. 'ran into [father's] arms, again getting her father to pick her

up.' [Father] and S.B. shared an affectionate relationship. S.B. 'nestle[d] up to [father's]

neck' and 'whispered and joked with him.' The record also shows S.B. loved [father] and

wanted their relationship to continue. S.B. whispered to her father, 'I love you.' As

[father] started to leave, S.B. stated, 'I'll miss you,' and then she gave him another hug.

S.B. spontaneously said, 'I wish I lived with you and Mommy and Nana.' " (In re S.B.,

supra, 164 Cal.App.4th at p. 298.) We concluded: "The record shows S.B. loved her

father, wanted their relationship to continue and derived some measure of benefit from

his visits. Based on this record, the only reasonable inference is that S.B. would be

greatly harmed by the loss of her significant, positive relationship with [father]." (Id. at

pp. 300-301.)

33
 This case is readily distinguishable from In re S.B. In particular, unlike S.B., there

is no indication K.B. ever expressed any desire to live with Mother. Rather, social

worker Blair reported that as of age four, K.B. stated he wanted to live with his

grandmother Edna and Donald K. Based on the social workers' reports, K.B. plainly did

not share the kind of affection for Mother that S.B. expressed for her father. K.B. did not

display such an emotional attachment to Mother, but easily separated from her at the

conclusion of his visits, and readily returned to his caregivers. Further, though Mother

showed some progress in her living situation, she was unable to show she had maintained

her psychotropic medication regimen or was participating in substance abuse programs to

avoid falling back into drug use. We have repeatedly cautioned that S.B.'s holding must

be limited to its particular and "extraordinary" facts (see In re Jason J. (2009) 175

Cal.App.4th 922, 937; In re C.F., supra, 193 Cal.App.4th at pp. 558-559), and we so

limit its application here. Given the factual dissimilarities, In re S.B. is not controlling.

DISPOSITION

The judgment is affirmed.

O'ROURKE, J.

WE CONCUR:

BENKE, Acting P. J.

IRION, J.

34