In re C.R. CA4/1

Filed 9/11/15 In re C.R. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 C.R., a Person Coming Under the
Juvenile Court Law.
D067525
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. NJ14663)
Plaintiff and Respondent,

v.

R.P. et al.,

Defendants and Appellants.

APPEAL from an order of the Superior Court of San Diego County, Michael

Imhoff, Judge. Affirmed.

Neil R. Trop, under appointment by the Court of Appeal, for Defendant and

Appellant R.P.

Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and

Appellant D.M.
 Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

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

R.P. (mother) appeals from the trial court's summary denial of her Welfare and

Institutions Code1 section 388 petition requesting that C.R. (minor) be moved from the

home of a nonrelated extended family member (NREFM) and placed with a maternal

aunt. Mother also appeals the court's denial of her motion to continue the contested

section 366.26 hearing, which she made on day of the hearing, and from its refusal to

apply the beneficial parent-child relationship exception to adoption.

Minor's father, D.M. (father), separately appeals from the court's refusal to apply

the beneficial parent-child exception and from its order terminating parental rights.

Affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

Minor was born in January 2010. In May 2011, father was arrested on drug

charges. Father posted bail. About a month later, police stopped the car father was

driving after father crossed over a double yellow line into oncoming traffic. During the

stop, police detected a "strong order of marijuana" in the passenger compartment of the

car. During a consent search, police found about one pound of marijuana in father's

backpack, about 100 prescription pills and $1,972 in cash. Police next searched father's

home, where among others mother and minor resided, and found an additional two

pounds of marijuana and 500 more pills. The two pounds of marijuana were found to be

1 All further statutory references are to the Welfare and Institutions Code unless
noted otherwise.
2
easily accessible to minor. Father was arrested on drug charges, and mother was arrested

and later cited for child endangerment.

According to mother, father was released from jail in January 2012. Upon his

release, mother admitted to using methamphetamine with father. On June 7, 2012, with

mother and minor in his car and while on probation, father was involved in a "road rage

incident" with another driver. During the incident, father displayed what appeared to the

other driver to be a "black handgun." Police responded, located a shoebox under a bush

in front of father's stopped car and inside found a black BB gun that looked like a replica

handgun, methamphetamine, marijuana and drug paraphernalia. Father was arrested on

charges of child endangerment, possession and transportation of controlled substances

and drug paraphernalia. Personnel from San Diego County Health and Human Services

Agency (agency) responded to the arrest scene, took custody of minor and detained him

in a foster home. That was the last time minor was under the care of either mother or

father.

In connection with the agency's June 11, 2012 detention report, mother admitted

smoking methamphetamine on June 6, 2012, the day before father's arrest. When asked

why minor presumptively tested positive for methamphetamine, mother explained that

while she was driving on June 5, 2012, father smoked methamphetamine while minor

was in the car. Mother told an agency social worker she wanted father in minor's life but

was nonetheless frustrated by father.

3
 Father, who was released from custody, denied using drugs around minor. Father

explained minor's presumptive positive test for methamphetamine by the fact that mother

still breastfed minor and that "she uses." Father noted, "I'm sure she [i.e., mother] left

that out." Father admitted using methamphetamine with mother three to five times per

week and admitted at times they were under the influence of the drug while caring for

minor, although father stated on those occasions they were " 'not out of [their] minds or

anything.' "

The agency on June 11, 2012 filed a section 300, subdivision (b) petition on behalf

of minor, alleging he was at substantial risk of suffering serious physical harm or illness

as a result of (1) father's inability to supervise or protect minor adequately, stemming

from the June 7, 2012 incident, and (2) both mother's and father's ongoing drug use. On

June 12, 2012, the court sustained the agency's section 300 petition, declared minor a

dependent and placed minor in out-of-home care.

The agency in its July 2, 2012 jurisdiction/disposition report recommended that

minor remain in foster care; that mother and father both receive reunification services;

and that they have liberal, supervised visits with minor. Mother and father were both

interviewed in connection with that report. In one interview, mother stated she wanted

minor placed with the maternal parents until she was able to reunify with minor. The

July 2 report notes that a few days later, mother showed up 45 minutes late for an agency

interview, which was rescheduled.

4
 Mother again arrived late for the rescheduled agency interview. In addition, she

brought to the interview a 17-year-old high school student and suggested the student was

a "placement option" for minor because the student was in a " 'continuation school' " and

thus was home and was able to watch minor during the day, while living at the student's

mother's house. When asked if the student had a relationship with minor, mother

responded, " 'Yeah, they have met a few times, but [minor] is really close to him.' "

Mother presented at the rescheduled interview as being anxious and unfocused.

Mother admitted using marijuana and methamphetamine since she was 16 years old. She

also stated she completed a drug diversion program when she was 20, but she relapsed

when she met father.

At the next scheduled interview, the July 2 report noted mother again showed up

45 minutes late. Over the next few days, the agency left mother two detailed messages

requesting a return call. Mother, however, did not call back. The report also noted

mother often was late to in-person visits with minor and missed over six phone contacts

with minor.

The July 2 report noted mother was accepted into the program at Serenity House

on June 14, 2012, but she did not return as instructed. The administrator of the program

gave mother a second chance to start the program, and mother returned on June 18, 2012.

However, mother did not stay at the facility the following weekend, as required, and her

drug test was positive for marijuana and alcohol. Mother also violated the rules of the

5
program by having a male guest stay overnight in her room. The administrator of the

program referred mother to a detoxification program.

The July 2 report confirmed minor tested positive for methamphetamine at the

time of his removal (i.e., June 7, 2012) from mother and father. Mother's

June 8, 2012 drug test was positive for methamphetamine and marijuana.

According to the July 2 report, father began to use marijuana when he was 15

years old, and it was his drug of choice. Father admitted to being addicted to Oxycontin

when he was arrested in June 2011, but he did not seek any drug treatment either during

his eight-month incarceration or after his release in January 2012. Father stated he

expected to be arrested soon for violating parole. Father also stated he wanted minor

placed with the paternal grandfather. The paternal grandfather, however, told an agency

social worker he was not then in a position to care for minor.

In its July 23, 2012 addendum report, the agency noted it had tried multiple times

to contact mother. Mother on July 11, 2012 failed to show up for drug testing. On the

few occasions mother responded to the multiple voicemail messages left by an agency

social worker, mother stated she was attempting to enroll in a treatment program but did

not say where or when she would be enrolling.

The July 23 addendum also included myriad examples of mother missing visits

and/or being late in visits and/or phone calls with minor and of the multiple excuses she

made as a result, including: her work schedule; her phone being broken; and her phone

not being charged. The report noted mother admitted to lying about the reasons she was

6
unable to visit minor. The report also noted minor was losing interest as a result of his

mother's inconsistent visits.

On July 23, 2012, the court made a true finding on the petition, declared minor a

dependent and removed him from mother and father. The court placed minor in licensed

foster care and ordered reunification services for mother and father.

In its January 23, 2013 status review report, the agency recommended termination

of mother's services and the scheduling of a section 366.26 hearing. Minor then was

thriving while living with J., a NREFM. Due to his incarceration, father was unable to

receive any services.

The January 23 report noted mother up until recently had been living a transient

lifestyle but had since moved in with her parents. Mother was accepted into an inpatient

program on July 23, 2012, but she "again no showed." The program made another

referral on August 14, 2012, and mother failed to follow through. Mother also failed

multiple times to show up for appointments at the program and, when she met with the

program coordinator in late September 2012, mother stated she wanted to participate only

in an outpatient program. Mother also resisted the efforts of agency social workers and

others to assist her in obtaining treatment in multiple other programs, including a

detoxification program. Mother at the time was on a waiting list for an inpatient

program. The report noted mother on multiple occasions, including in early January

2013, failed to show up for drug testing as requested by the agency. Mother also failed to

participate in individual counseling despite two referrals by the agency.

7
 The January 23 addendum also noted mother again, at least initially, was

inconsistent both in her in-person and phone visits with minor, as she was often late or

did not show up at all. When there were visits, that report noted they often went "fairly

well" and that minor and mother both said they loved each other and were affectionate

with each other. Minor then called mother his " 'momma.' "

At the time of the January 23 status review report, J., the NREFM, stated she did

not want to adopt minor but was willing to provide him long-term care. The maternal

grandparents were evaluated, but the agency discovered issues related to "criminal

history, CPS history as well as the maternal grandparents having two children that reside

in the home that ha[ve] molest history and substance abuse history." The contested

section 366.21 hearing was set for March 11, 2013; the hearing was later continued to

March 21, 2013.

In its March 11, 2013 addendum, the agency reported that mother's services at the

visitation center were terminated because of missed visits; that mother showed up to an

individual therapy session under the influence of a controlled substance; that mother was

in denial of her addiction to drugs and instead blamed others for her circumstances; and

that mother on February 26, 2013 was arrested for being under the influence of a

controlled substance. The court at the March 21, 2013 contested hearing terminated the

treatment plans of mother and father and set the matter for a section 366.26 hearing.2

2 This court on July 1, 2013 denied the writ petition of father, joined by mother,
claiming he was not provided with reasonable reunification services. (D063633.)
8
 The agency in its July 18, 2013 section 366.26 report recommended termination of

parental rights and a permanent plan of adoption for minor. It noted father had been

released from prison on May 30, 2013 and was then enrolled in a six- to nine-month drug

treatment program. Father participated in three supervised visits with minor from early

June through early July 2013. At the end of each visit, minor separated easily from

father.

On July 24, 2013, father filed a section 388 petition seeking to vacate the section

366.26 hearing, reinstate reunification services and begin unsupervised visits with minor.

In support of his petition, father contended he participated in all services available while

incarcerated and he entered a residential drug treatment program that he believed could

be completed in as little as six months. Father also indicated he enrolled in parenting

classes and was evaluated and found not to require mental health treatment services.

The agency opposed the petition. It noted that father had been in treatment for less

than three months; that he had an extensive history of drug use spanning over a decade;

that his treatment program usually required at least nine months; and that to date father

had only attended one parenting class. Because of the fact minor had been removed in

June 2012 and father was in the initial stage of treatment for his long-standing drug

addiction, the agency concluded minor's need for stability of a permanent plan should not

be jeopardized while the father received services, when it not only would take father time

to complete the program but also to demonstrate that he could remain sober in a

noncontrolled environment while holding down a job and parenting minor.

9
 In its October 11, 2013 addendum report, the agency sought a continuance to

access minor's paternal grandfather for guardianship. Minor's paternal grandfather

reported he did not come forward earlier because he had a medical issue and because he

wanted to give his son, father, the opportunity to reunify with minor. Minor's paternal

grandfather believed that father was in the process of turning his life around and hoped

one day father could petition the court and obtain custody of minor. Minor and the

paternal grandfather had unsupervised visits that included an overnight visit.

In its October 11 report, the agency noted that mother waited until early

September 2013 to schedule a visit with minor; that mother failed to show for the visit;

and that a record check showed mother was then incarcerated on three outstanding

warrants. A subsequent record check done by an agency social worker toward the end of

September 2013 showed mother was no longer incarcerated, but at the time of the

October 11 report she had yet to contact the agency, although mother did speak to minor

on the telephone. When mother promised minor she would visit him and then did not

follow through, it was reported minor was "disappointed."

Since the July 2013 section 366.26 report, an agency social worker observed 13

visits between minor and father. According to the October 11 addendum, the visits were

positive, minor looked forward to them and was happy to see father. At the end of the

visits, minor easily separated from father. That report further noted father then did not

believe he was ready to be a full-time parent to minor and he was not sure when he would

be ready to do so.

10
 On October 11, 2013, the court granted father's section 388 petition, vacated the

section 366.26 hearing and ordered reunification services for father. Minor was placed

with the paternal grandfather in mid-November 2013. In its December 9, 2013 status

review report in connection with a section 366.22 18-month/permanency review hearing,

the agency recommended minor remain placed with the paternal grandfather while father

continued to receive reunification services.

With respect to mother, the December 9 report noted the agency did not know her

whereabouts, although mother called minor two or three times each week. As to father,

that report noted he was visiting minor for a few hours each day at the paternal

grandfather's home; he was drug free; he had signed up to participate in the program's

outpatient aftercare program; and he was still participating in a residential substance

abuse program, where he was on track to graduate in January 2014. The report also noted

minor was doing "very well" in the paternal grandfather's home. The court at the

December 9 hearing continued father's reunification services to the 24-month date.

The agency in its June 9, 2014 status review report recommended father's

reunification services be terminated and minor remain placed in the paternal grandfather's

home. With respect to father, the June 9 report noted that he tested positive for

methamphetamine in April 2014, after father graduated from his treatment program; that

he failed to perform drugs tests for the agency on three separate occasions in May 2014;

and that he failed to contact the agency for nearly two weeks at the same time the agency

was attempting (before it knew about his failed drug test) to arrange a trial placement of

11
minor. Father on May 20, 2014 admitted to an agency social worker he had relapsed and

tested positive in April 2014 for methamphetamine and admitted he had used the drug the

night before the interview. Father agreed to supervised contact with minor and to enroll

in a recovery program.

At the time of the June 9 status report, mother had been incarcerated in April 2014

and again on May 20, 2014. Mother called minor on May 20 from the detention facility.

Before this call, mother had not made telephone contact with minor for over two months

and had failed to show up for a scheduled face-to-face visit with minor.

Father was accepted into drug court on June 11, 2014. He failed to attend hearings

on June 25, July 2 and July 9, 2014, and was terminated as an "unsuccessful participant."

The agency on June 24, 2014 filed a section 387 petition on behalf of minor. In its

June 25, 2014 detention report prepared in connection with the detention hearing/section

387 petition, the agency noted the paternal grandfather was allowing father to reside in

the home with minor and provide unsupervised care of minor, despite the requirement

father's visits be supervised as a result of his relapse. The June 25 report also noted that

father's girlfriend was living in the paternal grandfather's home and providing care to

minor and that there were ongoing instances of domestic violence between father and his

girlfriend witnessed by minor, including one that took place on March 1, 2014 in which

father was arrested. Father's girlfriend admitted she and father argued every day but said

they " 'only [had] gotten physical like maybe like six or seven times.' "

12
 The June 25 report described an incident in which an agency social worker made

an unannounced visit to the paternal grandfather's home on June 20, 2014. Father was

found hiding in the closet after father's girlfriend answered the door and let the social

worker inside. The agency social worker confronted father with information learned

from father's probation officer, which showed father had not been truthful with the

agency regarding his living arrangements.

During the unannounced June 20 visit, the paternal grandfather arrived home with

minor. The agency social worker heard minor crying and the paternal grandfather

repeatedly telling minor, " '[G]et the hell out of the car, right now . . . come on get in the

house, now!' " The social worker also witnessed the paternal grandfather throwing

groceries and grabbing minor to get him inside the home. After being surprised by the

social worker's presence in the home, the paternal grandfather admitted he knew about

the domestic violence between father and his girlfriend; he knew minor had witnessed

incidents of domestic violence while in the home; he knew father had relapsed; and he

knew father was not allowed unsupervised visits with minor. The paternal grandfather

admitted there was a " 'problem' " in his home but said, " 'I have to work and I have found

it difficult to care for [minor] without some assistance.' "

Minor was removed and in an emergency placement was placed with his prior

NREFM, J., who had cared for minor from November 2012 to November 2013 and who

had since obtained her foster care license. The court at the June 25, 2014 detention

hearing detained the child in out-of-home care.

13
 At the July 25, 2014 contested 24-month subsequent permanency review hearing,

the court terminated father's reunification services and found it would be detrimental to

minor to return minor to either mother or father, both of whom were incarcerated at the

time of the hearing. On September 8, 2014, the court made a true finding on the section

387 petition. The court scheduled the section 366.26 hearing for November 20, 2014.

The agency's November 10, 2014 section 366.26 report recommended that

parental rights be terminated and that minor be freed for adoption. The report noted

father had been arrested in September 2014 for violating a restraining order preventing

him from entering the paternal grandfather's house. The paternal grandfather reported he

had obtained the restraining order because father was violent when using drugs and was

damaging the home and stealing from him. Father had not been in contact with the

agency to request visits with minor since minor was removed from the paternal

grandfather's house on June 20, 2014.

The November 10 report also noted minor was thriving in his current placement

with J., who was very attached to minor, who wanted to adopt minor and who had a

completed home study. To the extent J. was unable to adopt minor, the report noted there

were 75 approved adoptive families in San Diego that would be willing to adopt minor.

Minor, then aged four, verbalized he wanted to stay with J. forever, whom he now called

" 'momma.' "

Since living with J., the November 10 report noted minor had not asked about or

talked about father. The report concluded that there was no significant parental bond

14
between father and minor that would cause harm to minor if severed; that there was no

parent-child bond between mother and minor; and that neither mother nor father met

minor's needs or could be counted on to protect and care for minor. Because minor had

been moved several times already and because he was attached to J. and looked to her as

his parent, the report recommended minor be freed for adoption.

Before the contested section 366.26 hearing, mother filed a section 388 petition

requesting minor be placed with a maternal aunt. The agency opposed the petition. In its

opposition, the agency noted that mother had waited six months since minor was removed

from the paternal grandfather's house to request minor be placed with the aunt; that the

aunt had not maintained contact with minor; that the aunt did not visit with minor; that

the aunt did not call minor; that the aunt had never called to inquire about minor's health

or well-being, despite the fact minor needed surgery for a congenital heart defect; and

that the aunt had never contacted the agency to inquire about minor or the status of his

case. In short, because the maternal aunt had no relationship with minor and because the

minor was thriving in his placement with J., the agency recommended minor remain with

J.

The court continued the hearing on mother's section 388 petition to coincide with

the hearing on the contested section 366.26 petition. The agency in its February 5, 2015

addendum report prepared in connection with the section 366.26 hearing noted mother

began weekly visits with minor in November 2014 and her last visit with minor was in

mid-January 2015, when mother was arrested for a parole violation. Although those

15
visits went well, the report noted mother was inconsistent in demonstrating a "parental

role," in "responding appropriately to [minor's] verbal/non-verbal signals," and in putting

minor's "needs ahead of her own."

As to father, the agency noted he contacted the agency once in mid-November

2014 to schedule a visit but since then had been out of contact with the agency. At the

time of the contested section 366 hearing, father was incarcerated.

At the outset of the February 5, 2015 contested hearing, mother's counsel stated

that earlier that day mother informed counsel she wanted to retain private counsel and

wanted the hearing continued. In denying the continuance, the court noted that the

contested hearing had been pending for at least six to eight weeks;3 that mother had not

officially retained a new attorney; and that given minor's young age and his need to

determine permanency, it was not in minor's best interest to grant the continuance.

With respect to mother's request for an evidentiary hearing in connection with her

section 388 petition, the court found that mother did not make a prima facie showing of

new evidence or changed circumstances or a showing that the requested change in the

court order would serve minor's best interest. After recounting minor's many placements

and the multiple hearings in this case, the court noted mother throughout this time had

been represented by counsel and "had an opportunity at all of the hearings to make her

wish known to the court regarding placement. The maternal aunt's home was approved,

3 According to the record, the contested section 366.26 hearing had actually been set
for 11 weeks.
16
and it appears it was a fact that she no contact with [minor]. And that is very important

because that would evidence her desire to be available for the child."

Next, the court in connection with the section 366.26 hearing admitted the

agency's reports, summarized ante. Mother testified that she took care of minor for two

and one-half years; that when they visited, minor called her "mom" and told her at the

end of the visits, " 'Why can't I go with you, mom?' "; and that the court should not

terminate parental rights because the bond between them was "not broken."

After considering the evidence and listening to the argument of counsel, the court

found by clear and convincing evidence that minor was likely to be adopted. The court

found that minor had an established relationship with his current caretaker; that minor

wanted to live permanently with his current caretaker and the caretaker's other foster

child, whom minor referred to as his sister; that minor had been through multiple

placements already; that minor was very intelligent and thus was able to express where he

wanted to live; that the current caregiver wanted to adopt minor and had a completed

home evaluation for adoption; and that if the current caregiver for whatever reason was

unable to adopt minor, there were 75 additional approved prospective adoptive homes

that would be willing to adopt a child with minor's characteristics.

The court also found that termination of parental rights of mother and father would

not be detrimental to minor pursuant to any of the exceptions; that while there were

periods when mother and father (allegedly, as discussed post) had consistent visits with

minor, it was not in minor's best interest to promote or facilitate either a mother-child or

17
father-child relationship; and that mother and father had succumbed to a "lot of other life

issues . . . that [have] subordinated their ability to be there consistently on a day-to-day

basis for their son."

The court further found that whatever benefit may have been conferred upon

minor by the contact with mother and/or father was "greatly outweighed by his need for

stability in placement, which can only be achieved through adoptive placement." The

court thus terminated the parental rights of mother and father.

After its ruling, the court asked minor's court appointed special advocate (CASA)

if she had any comments to make to the court. The CASA noted that while minor loved

his parents, minor was "very happy in his placement and he loves his foster family." The

CASA further noted it would be "detrimental" to take minor away from that environment

and thus concluded the court's ruling was the "right thing to do for the child." At the

conclusion of the hearing, the court designated J., minor's current caregiver, as a

prospective adoptive parent within the meaning of section 366.26, subdivision (n).

DISCUSSION

A. Denial of section 388 petition

Mother contends the court abused its discretion and violated her due process rights

when it denied without a full evidentiary hearing her section 388 petition seeking a

change in minor's placement from J. to the maternal aunt. We disagree.

The dependency statutes balance numerous competing interests, including the

interest in preserving a family unit; the parents' interest in the custody and care of their

18
child; and the child's interest in a stable, permanent relationship with a fully-committed

caretaker. (In re Zacharia D. (1993) 6 Cal.4th 435, 446.) Under the statutory scheme,

our Legislature has given a parent's interest in reunification precedence over a child's

need for stability and permanency up until the time reunification services are terminated

and the case is set for a section 366.26 permanency planning hearing. (Id. at p. 447.)

Once parental " 'reunification services are ordered terminated, the focus shifts to the

needs of the child for permanency and stability.' " (Ibid.) " 'A court hearing a motion for

change of placement at [the permanency planning] 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. (2014) 226 Cal.App.4th 503, 527.)

As an " ' "escape mechanism" ' " to allow the court to consider new information

even after termination of reunification services, a parent may file a section 388 petition

for modification of a court order. (In re Zacharia D., supra, 6 Cal.4th at p. 447; § 388.)

Section 388 allows a parent to file a modification petition based on "change of

circumstances or new evidence" (§ 388, subd. (a)(1)) and instructs the court to hold a

hearing "[i]f it appears that the best interests of the child . . . may be promoted by the

proposed change of order . . . ." (§ 388, subd. (d), italics added; see In re Zachary G.

(1999) 77 Cal.App.4th 799, 806.) The section 388 petition should be liberally construed

in favor of granting a hearing to consider the parent's request, and the parent need only

make a prima facie showing of the required elements to trigger the right to proceed by

19
way of a full hearing. (In re Marilyn H. (1993) 5 Cal.4th 295, 309–310; In re Zachary

G., supra, at p. 806.)

A prima facie showing " 'is one that is sufficient to support the position of the

party in question.' " (Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th

408, 417; In re Zachary G., supra, 77 Cal.App.4th at p. 806.) The showing may consist

of " 'slight evidence which creates a reasonable inference of fact sought to be established

but need not eliminate all contrary inferences.' " (Krinsky v. Doe 6 (2008) 159

Cal.App.4th 1154, 1172, fn. 14.) To be entitled to a hearing, the petitioner need not

establish a probability of prevailing, but need only present evidence that might warrant a

change in the court's order. (In re Aljamie D. (2000) 84 Cal.App.4th 424, 432–433; In re

Angel B. (2002) 97 Cal.App.4th 454, 461.) In determining whether the petition makes

the necessary showing, the court may consider the entire factual and procedural history of

the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 189.) If the liberally-construed

allegations of the petition do not make a prima facie showing, the court need not order a

full evidentiary hearing on the petition. (In re Zachary G., supra, at p. 806.)

We review the court's finding of no prima facie showing for abuse of discretion.

(In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.) We must uphold the order unless

the court's determination was arbitrary, capricious or patently absurd. (In re Mary G.

(2007) 151 Cal.App.4th 184, 205.)

Here, we conclude mother failed to satisfy her burden to show the court erred in

finding there was no prima facie showing of new evidence or changed circumstances in

20
connection with her petition, given that she waited six months after minor was removed

from the paternal grandfather's house to seek relief. In addition, we separately conclude

mother failed to make a prima facie showing that granting her section 388 petition and

placing minor with the maternal aunt was in minor's best interest. (See In re Stephanie

M. (1994) 7 Cal.4th 295, 317 [noting the primary consideration in determining the best

interests of a child is the goal of assuring stability and continuity]; see also In re Angel B.,

supra, 97 Cal.App.4th at p. 464 [noting that when "custody continues over a significant

period, the child's need for continuity and stability assumes an increasingly important

role," and noting that "need often will dictate the conclusion that maintenance of the

current arrangement would be in the best interests of that child"].)

Indeed, on the one hand the record shows that, at the time of the section 388

petition, minor had no relationship whatsoever with the maternal aunt or his cousins. The

maternal aunt's last visit with minor was July 2012, about a month after minor was

detained. At the time mother filed her section 388 petition in late December 2014 and

when that petition was denied in early February 2015, more than two years had passed

since the maternal aunt last visited minor. During this period of time, the maternal aunt

also did not call to speak with minor, even when minor was living with the paternal

grandfather; she did not inquire about minor's health or well-being, even after the minor

had surgery to repair a congenital heart defect; and she did not contact the agency to

inquire about minor or the status of his case in connection with minor's well-being or his

placement.

21
 In addition, we note when minor was first removed mother wanted minor placed

with the maternal grandparents, but that placement was not approved because on

evaluation there were issues related to "criminal history, CPS history as well as the

maternal grandparents having two children that reside in the home that ha[ve] molest

history and substance abuse history." The record shows mother next suggested that a 17-

year-old high school student, who was in continuation school and thus at home during the

day, was a suitable placement option for minor because the student and minor had met a

"few times." Thus, the record strongly suggests mother's desire regarding the placement

of minor was not always in minor's best interest.

On other hand, the record clearly shows that at the time of the section 388 petition,

minor was thriving in his NREFM placement with J., where minor had spent more than

one and a half years in J.'s care. Minor was then referring to J. as "momma," looked to

her as a parent and considered J.'s other foster child as his sister. In addition, minor—

who repeatedly is described as being extremely intelligent and verbal for his age—told an

agency social worker that he did not want to leave J.'s home. The record also shows J.

wanted to adopt minor and had an approved adoptive home study.

In light of minor's multiple placements over the course of his young life, his need

for stability and continuity, and his strong bond to and relationship with J. over the course

of more than a year and a half and his lack of any relationship whatsoever with the

maternal aunt, we conclude the court properly exercised its discretion when it found

without a full-blown evidentiary hearing that mother did not make a prima facie showing

22
that the requested change in the court order placing minor with the maternal aunt was in

minor's best interest. (See In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324 [upholding

the decision of the court made shortly before a section 366.26 hearing to deny a mother's

section 388 petition seeking a change of placement of her child from a foster family to

the mother's cousin and his wife because the cousin had only met the child once and

because the child had lived with her foster family for half of her life, had a strong bond to

them and they had indicated their desire to provide the child a permanent home].)

We thus conclude there was no abuse of discretion or violation of due process

arising from the court's denial of a full evidentiary hearing concerning mother's section

388 petition for a change in placement.

B. Beneficial parental relationship

Mother and father separately contend there is insufficient evidence to support the

court's finding that neither met their burden of showing a beneficial relationship with

minor for purposes of the beneficial parent-child relationship exception to adoption set

forth in section 366.26, subdivision (c)(1)(B)(i).

When reunification services are terminated, such as in the instant case, the focus

of a dependency proceeding shifts from preserving the family to promoting the best

interest of the child, including the child's interest in a stable, permanent placement that

allows the caregiver to make a full emotional commitment to the child. (In re Fernando

M. (2006) 138 Cal.App.4th 529, 534.) At the section 366.26 selection and

implementation hearing, the court has three options: (1) terminate parental rights and

23
order adoption as the permanent plan, (2) appoint a legal guardian for the dependent

child, or (3) order the child placed in long-term foster care. (Ibid.)

However, "[a]doption . . . is the permanent plan preferred by the Legislature." (In

re Autumn H. (1994) 27 Cal.App.4th 567, 573.) Thus, "[i]f the child is adoptable, there is

a strong preference for adoption over alternative permanency plans." (In re Michael G.

(2012) 203 Cal.App.4th 580, 588.) All that is required to show a dependent child is

adoptable is "clear and convincing evidence of the likelihood that adoption will be

realized within a reasonable time." (In re Zeth S. (2003) 31 Cal.4th 396, 406; see

§ 366.26, subd. (c)(1).)

Here, as noted, the court at the section 366.26 hearing found minor was likely to

be adopted, which finding neither mother nor father challenge on appeal. Indeed, the

record shows J. wanted to adopt minor and that if J. was unable to do so, there were at

least 75 other families that wanted to adopt a child with the characteristics of minor.

Once the court found by clear and convincing evidence that minor was likely to be

adopted within a reasonable time, it was required to terminate the parental rights of the

parents and select adoption as the permanent plan unless mother and/or father showed

that termination of parental rights would be detrimental to minor, including, as each

contends here, under the beneficial parent-child relationship exception set forth in section

366.26, subdivision (c)(1)(B)(i). (See In re Michael G., supra, 203 Cal.App.4th at

p. 589; In re Erik P. (2002) 104 Cal.App.4th 395, 401.)

24
 Section 366.26, subdivision (c)(1)(B)(i) provides an exception to the adoption

preference if the court finds a "compelling reason" for determining that termination of

parental rights would be "detrimental" to the child because the "parents have maintained

regular visitation and contact with the child and the child would benefit from continuing

the relationship." The statutory phrase "benefit from continuing the relationship" has

been interpreted to mean that the parent-child relationship "promotes the well-being of

the child to such a degree as to outweigh the well-being the child would gain in a

permanent home with new, adoptive parents." (In re Autumn H., supra, 27 Cal.App.4th

at p. 575.)

In determining whether the child would benefit from continuing the parent-child

relationship for purposes of this exception, 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; accord, In re Jason J. (2009) 175 Cal.App.4th 922, 936.)

To meet his or her burden of establishing the applicability of the beneficial parent-

child relationship exception, a parent must show more than frequent and loving contact,

an emotional bond with the child, or pleasant visits. (In re Derek W. (1999) 73

Cal.App.4th 823, 827.) "Interaction between natural parent and child will always confer

25
some incidental benefit to the child." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

Rather, the "parent must show he or she occupies a parental role in the child's life." (In re

C.F. (2011) 193 Cal.App.4th 549, 555; In re Derek W., supra, at p. 827.)

Thus, a "biological parent who has failed to reunify with an adoptable child may

not derail an adoption merely by showing the child would derive some benefit from

continuing a relationship maintained during periods of visitation with the parent.

[Citation.] A child who has been adjudged a dependent of the juvenile court should not

be deprived of an adoptive parent when the natural parent has maintained a relationship

that may be beneficial to some degree, but that does not meet the child's need for a

parent." (In re Angel B., supra, 97 Cal.App.4th at p. 466, italics omitted; accord, In re

Marcelo B. (2012) 209 Cal.App.4th 635, 643.)

On review of the sufficiency of the evidence to support a court's order terminating

parental rights and freeing the parent's child for adoption, "we presume in favor of the

order, considering the evidence in the light most favorable to the prevailing party, giving

the prevailing party the benefit of every reasonable inference and resolving all conflicts

in support of the order." (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) "We must

affirm the juvenile court's rejection of any exception to termination of parental rights if

the court's findings are supported by substantial evidence." (In re Michael G., supra, 203

Cal.App.4th at p. 589.)4

4 The agency urges us to adopt a hybrid standard of review, applying both the
substantial evidence and abuse of discretion standards, as some courts have done. (See,
e.g., In re J.C. (2014) 226 Cal.App.4th 503; In re Bailey J. (2010) 189 Cal.App.4th
1308.) We note there is little practical difference between the two standards. (See In re
26
 "The appellate court does not reweigh the evidence, evaluate the credibility of

witnesses or indulge in inferences contrary to the findings of the trial court. [Citations.]

The substantial evidence standard of review is generally considered the most difficult

standard of review to meet, as it should be, because it is not the function of the reviewing

court to determine the facts." (In re Michael G., supra, 203 Cal.App.4th at p. 589.)

Here, although we doubt the court's finding that mother and father each

"maintained regular visitation and contact with the child" is supported by substantial

evidence in the record,5 we need not base our decision on that issue because we conclude

mother and father have each failed to show no substantial evidence supported the finding

that the beneficial parent-child exception did not apply to each of them in this case.

Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 [recognizing the "practical differences
between the two standards of review are not significant"].) In any event, we need not
decide whether to apply the hybrid standard here because we note, as does the agency,
that the result would be the same regardless of whether we apply a hybrid or substantial
evidence standard in this case.

5 The record shows at the February 5, 2015 section 366.26 hearing, the court noted
this case was originally in another department and thus the court, while familiar with the
case and its issues, had not been involved in the case from its beginning. In any event,
the record suggests both mother's and father's visits with minor were sporadic and
inconsistent after minor was detained in June 2012. (See In re C.F., supra, 193
Cal.App.4th at p. 554 [noting that "[s]poradic visitation is insufficient to satisfy the first
prong of the parent-child relationship exception to adoption"].) By way of example only,
mother had no contact whatsoever with minor from June 20, 2014, when minor was
hastily removed from the paternal grandfather's house, until November 12, 2014.
Mother's resumed visits with minor in November 2014 ended in mid-January 2015, after
mother was arrested and incarcerated (yet again). The record also shows mother often
was late and/or missed visits and often made excuses when she did so. As for father,
after minor was removed from the paternal grandfather's house in June 2014, father had
no further contact with minor. By the time of the contested section 366.26 hearing, father
had not seen minor in seven months.
27
 As for mother, while the record shows she had positive interactions with minor

during their visits and clearly loved minor, the record also shows at no time since minor

was detained in June 2012 did mother occupy a "parental role" in the child's life. (See In

re Andrea R. (1999) 75 Cal.App.4th 1093, 1108-1109.) Rather, the record shows mother

had an on-again, off-again relationship with minor, as evidenced by her lack of any

contact with minor from June 2014 until November 2014 and as evidenced by her brief,

unscheduled visit with minor on Christmas Eve 2013, which was mother's only in-person

visit with minor over a six-month period.

The record also shows mother often was late for visits and/or missed visits with

minor, often making excuses for doing so. At the same time, mother was continually

struggling to stay sober and was arrested and incarcerated multiple times after minor was

removed from her care in June 2012, including at or near the time of the February 5, 2015

section 366.26 hearing. Moreover, at the time of the section 366.26 hearing, minor had

not lived with mother since June 2012, when minor was about two and half years old. At

the time of the hearing, minor was five years old. Thus, for almost half his young life,

minor had not lived with mother.

In contrast, the record shows at the time of the section 366.26 hearing minor had

lived with J. for more than a year and a half; that minor looked to J. as a parental figure;

that J. took care of minor's daily needs, including his medical needs; that minor called J.

"momma" and J.'s other foster child, sister; that minor expressed his desire to always live

28
with J.; and that minor was thriving in his placement with J., who also wanted to adopt

minor.

Thus, when balancing 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" (In re Autumn H., supra, 27 Cal.App.4th at p. 575) in light of the

circumstances of this case, we conclude the record amply supports the finding that with

respect to mother, the beneficial parent-child exception did not apply in this case. (See In

re Cliffton B. (2000) 81 Cal.App.4th 415, 424 [noting the parental relationship must be

more than " 'frequent and loving contact' " for the exception to adoption to apply].)

We reach the same conclusion with respect to father. Although father at one point

appeared to occupy somewhat of a parental role with minor after minor was placed with

the paternal grandfather in November 2013, the record also shows that like mother, father

was unable to remain sober and care for minor for any length of time, even when a future

with minor was at stake; that father exposed minor to domestic violence, including

physical acts of violence, at least six or seven times when minor was living in the

paternal grandfather's home; that after minor was hastily removed from the paternal

grandfather's home in June 2014, father had no visits with minor at the time of the

February 5, 2015 section 366.26 hearing; and that at or near the time of the section

366.26 hearing, like mother, father was once again incarcerated.

Again, when balancing the "strength and quality of the natural parent/child

relationship in a tenuous placement against the security and the sense of belonging a new

29
family would confer" (In re Autumn H., supra, 27 Cal.App.4th at p. 575) under the

circumstances of this case, we conclude with respect to father that the record supports the

finding that the beneficial parent-child exception did not apply in this case. (See ibid.

[noting the statutory phrase " 'benefit from continuing the [parent/child] relationship' "

means that the parent-child 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"].)

C. Motion for Continuance

Lastly, mother contends the court abused its discretion and thus erred when it

denied her oral motion for a continuance to obtain private counsel, which she made at the

outset of the February 5, 2015 section 366.26 hearing. We disagree.

Section 352, subdivision (a) provides a continuance shall be granted only on a

showing of good cause and when it is the best interest of the child.6 In considering the

6 Subdivision (a) of section 352 provides: "Upon request of counsel for the parent,
guardian, minor, or petitioner, the court may continue any hearing under this chapter
beyond the time limit within which the hearing is otherwise required to be held, provided
that no continuance shall be granted that is contrary to the interest of the minor. In
considering the minor's interests, the court shall give substantial weight to a minor's need
for prompt resolution of his or her custody status, the need to provide children with stable
environments, and the damage to a minor of prolonged temporary placements. [¶]
Continuances shall be granted only upon a showing of good cause and only for that
period of time shown to be necessary by the evidence presented at the hearing on the
motion for the continuance. Neither a stipulation between counsel nor the convenience of
the parties is in and of itself a good cause. Further, neither a pending criminal
prosecution nor family law matter shall be considered in and of itself as good cause.
Whenever any continuance is granted, the facts proven which require the continuance
shall be entered upon the minutes of the court. [¶] In order to obtain a motion for a
continuance of the hearing, written notice shall be filed at least two court days prior to the
date set for hearing, together with affidavits or declarations detailing specific facts
30
child's interests, the court is required to "give substantial weight to a minor's need for

prompt resolution of his or her custody status, the need to provide children with stable

environments, and the damage to a minor of prolonged temporary placements." (Ibid.)

Here, the record shows mother was present at the November 20, 2014 hearing

when the court set the February 5, 2015 section 366.26 hearing. The record does not

show why mother waited until the day of the section 366.26 hearing, months after

receiving notice of it, to seek new counsel and/or why new counsel was necessary or, in

light of the circumstances of this case, how new counsel would have made any difference

in this case.

What's more, mother also did not explain or provide any detail at the section

366.26 hearing regarding how long of a continuance she wanted. Although on appeal she

claims she merely wanted a "brief delay," as is evident from the circumstances of, and the

voluminous record in, this case, it is unlikely new counsel would have been ready to

proceed with merely a "brief delay" in the hearing.

In addition, the record shows the February 5, 2015 section 366.26 hearing was the

second time such a hearing had been set, as the court in July 2013 had initially scheduled

the section 366.26 hearing for mid-September 2013. The September 2013 hearing was

vacated, however, after the court granted father's section 388 petition.

Considering that minor had been detained since June 2012, that the section 366.26

hearing already had been vacated about a year and a half before it actually took place,

showing that a continuance is necessary, unless the court for good cause entertains an
oral motion for continuance."
31
and that mother had notice of the February 5, 2015 section 366.26 hearing as early as

November 20, 2014, we conclude the court properly exercised its discretion when it

found a continuance of that hearing was not in minor's best interests. (See § 352, subd.

(a); In re Gerald J. (1991) 1 Cal.App.4th 1180, 1187 [noting " '[t]ime is of the essence in

offering permanent planning for dependent children' " and noting a "reviewing court will

reverse an order denying a continuance only upon a showing of an abuse of discretion"];

see also In re David H. (2008) 165 Cal.App.4th 1626, 1635 [noting "[c]ontinuances in

juvenile dependency proceedings are disfavored"].)

DISPOSITION

The order terminating the parental rights of mother and father and finding minor

adoptable is affirmed.

BENKE, Acting P. J.

WE CONCUR:

HALLER, J.

PRAGER, J.*

* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
32