In re A.B. CA4/2

Filed 8/14/20 In re A.B. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re A.B., a Person Coming Under the
Juvenile Court Law.

SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E074249

Plaintiff and Respondent, (Super.Ct.No. J274670)

v. OPINION

E.T., et.al.,

Defendants and Appellants.

APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander,

Judge. Affirmed.

Elizabeth Klippi, under appointment by the Court of Appeal, for Defendant and

Appellant, E.T.

Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and

Appellant, M.B.

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 Michelle D. Blakemore, County Counsel, David Guardado, Deputy County

Counsel, for Plaintiff and Respondent.

I. INTRODUCTION

Appellants, M.B. (Father) and E.T. (Mother), are the parents of A.B., a child born

in August 2016. The parents appeal from the October 1, 2019 orders denying their

petitions for further reunification services for A.B. (Welf. & Inst. Code, § 3881) and from

the October 30, 2019 orders selecting adoption as A.B.’s permanent plan. (§ 366.26.)

In this appeal, Father claims the juvenile court erroneously failed to recuse the San

Bernardino County Children and Family Services (CFS) and its attorneys, the San

Bernardino Office of County Counsel (County Counsel), from the case based on a

conflict of interest involving A.B.’s caregiver. Father withdrew his motion to recuse CFS

and County Counsel from the case and transfer the case to another county. Thus, the

court never ruled on Father’s recusal motion. The court subsequently denied a more

limited motion by A.B.’s counsel to screen certain CFS employees from A.B.’s case, but

that motion did not ask the court to recuse the entire offices of CFS and County Counsel

from the case. Thus, we conclude Father has forfeited his claim that the court

erroneously refused to recuse CFS and County Counsel from the case.2

1 Undesignated statutory references are to the Welfare and Institutions Code.

2 Mother joins Father’s claims, and Father joins Mother’s reply brief. (Cal. Rules
of Court, rule 8.200(a)(5).) We consider each parent’s claims to the extent they may
benefit both parents.

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 Both parents also claim that the juvenile court (1) abused its discretion in denying

the parents’ section 388 petitions for further reunification services for A.B., and

(2) erroneously failed to find that the parental benefit exception to the adoption

preference applied. (§ 366.26, subd. (c)(1)(B)(i).) We find no merit to these claims.

II. FACTS AND PROCEDURE

A. Background

The family first came to the attention of CFS in June 2017. In searching the

family home in connection with a stolen vehicle that had been found at the home, law

enforcement officers found 20 grams of methamphetamine, including 17.3 grams under a

bed in the master bedroom. The methamphetamine was “easily accessible” to 10-month-

old A.B., and the parents were arrested for child endangerment. CFS opened a voluntary

family maintenance plan for parents.

The parents’ family maintenance plan was open from September 8, 2017, to

January 23, 2018. To ensure A.B.’s safety and avoid his removal from parental custody,

the parents agreed to participate in the plan, which included substance abuse treatment

and drug testing, Narcotics Anonymous (NA) meetings, parenting classes, child abuse

prevention classes, and individual counseling. The parents did not complete the plan. In

October 2017, Mother was “dropped” from her substance abuse treatment plan due to

poor progress and attendance. Father failed to enroll in any services, and between late

2017 and early 2018, each parent failed to participate in on-demand drug testing.

On January 23, 2018, CFS detained A.B. pursuant to a detention warrant and

placed him with his paternal uncle, E.B., a former CFS social worker. The parents had

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asked CFS to consider E.B. for A.B.’s placement. On January 25, CFS filed a

dependency petition alleging jurisdiction because the parents had substance abuse

problems, engaged in illegal activity, and stored “a quantity” of methamphetamine in

their home accessible to A.B. (§ 300, subd. (b).)

At a January 26, 2018 detention hearing, Mother was represented by appointed

counsel, and Father was represented by privately retained counsel, Valerie Ross. Ms.

Ross asked the court to transfer the case to “another county” because CFS had a conflict

of interest with Father’s “close family.” The court advised Ms. Ross that a written

motion to transfer the matter would have to be filed and proceeded with the hearing. The

court detained A.B. in CFS custody, ordered predispositional services and supervised

visits for the parents, and set a jurisdiction and disposition hearing on February 16.

On February 14, 2018, CFS reported that, during the search of the parents’ home

in June 2017, indicia of methamphetamine sales were found, including several glass pipes

and a scale inside a black case beneath the bed in the master bedroom, along with

approximately 17.3 grams of suspected methamphetamine in a baggie, and “more small

baggies with white crystalline substances,” weighing approximately 1.2 grams.

On January 31, 2018, CFS interviewed Mother and Father. Mother claimed that

the methamphetamine found during the June 2017 search of the parents’ home belonged

to a roommate who had been using drugs while living in the home. Mother was born in

January 1980, began using marijuana at age 14, and admitted using methamphetamine

“off and on” since she was age 15 but denied using any methamphetamine since her July

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2017 arrest. Following her arrest, she pled guilty or no contest to a misdemeanor charge

of child cruelty.

Father was born in 1984 and denied having any current medical diagnoses or

prescribed medications. When he was in his 20’s, he was diagnosed as bipolar and was

twice placed on a section 5150 hold. Like Mother, Father claimed that the

methamphetamine found during the June 2017 search of the parents’ home belonged to a

roommate. In 2017, he pled no contest to possessing a stolen vehicle, was placed on

probation for three years, and had to complete a work-release program.

Father said he began using cigarettes and marijuana when he was between five and

eight years old. He tried cocaine once or twice and had “occasionally” used

methamphetamine, but he claimed he had not used any controlled substances in several

years. He did not participate in substance abuse services through the parents’ voluntary

maintenance plan because he felt he did not need the services. He admitted that Mother

had “struggled with substance abuse” and that he “should have been more aware of her

usage.” In 2018, Mother was still married to R.T., although she and R.T. had separated

in July 2015. R.T. reported that Father was a drug dealer and that Mother and Father met

through their substance abuse. R.T. was not A.B.’s biological father.

CFS interviewed E.B. on February 7, 2018. E.B. had “numerous concerns” about

the parents for years and had reported them to law enforcement and the child abuse

hotline. According to E.B., Father was a drug dealer, and the parents met when Mother

and R.T. would meet with Father and Father’s former girlfriend to buy drugs. Mother

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lost custody of an older child due to her heroin use.3 Father was bipolar and had used

drugs since his childhood. Father had been an inpatient at a psychiatric hospital on four

occasions, including for three months in 2010 due to his attempted suicide. Father had

also been fired several times for stealing from employers to support his drug habit and

had a $26,000 judgment against him for “trash[ing]” his rental home in 2017 before he

and Mother were evicted from the home.

In February 2018, the parents were referred for individual counseling, parenting

classes, and individual substance abuse assessments. On February 15, CFS filed an

amended petition, which added an allegation that Father had “ongoing mental health

problems” that adversely affected his ability to parent A.B.

B. Father’s Recusal and Transfer Motion and A.B.’s Related Motions

On February 16, 2018, Father’s counsel, Ms. Ross, filed a motion to recuse CFS

and County Counsel from the case based on an alleged conflict of interest they had

involving E.B. and to transfer the case to a neighboring county. At the time of the

scheduled jurisdiction and disposition hearing on February 16, Mother asked the court to

remove A.B. from E.B.’s care and place him with the maternal grandmother. At

Mother’s request, the court set a March 21 mediation to discuss A.B.’s placement, the

3 Mother admitted that her first husband, J.V., had full custody of their 10-year-
old child. Mother later married R.T., but Mother and R.T. had a 19-year-old son, J.T.,
who was born before Mother married J.V.

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amended petition’s allegations, and visitation.4 The court set an April 2 hearing on

Father’s recusal and transfer motion and a contested jurisdiction and disposition hearing

on April 25. Both hearings were ultimately continued to August 13, 2018.

In support of Father’s recusal and transfer motion, Ms. Ross submitted her own

declaration averring that she was representing Father in A.B.’s dependency case and was

also representing Father’s brother, E.B., in a “whistleblower” civil case against CFS and

the County of San Bernardino (the County), filed in federal district court as USDC Case

No. 5:16-cv-01756-JGB-SP. Ms. Ross claimed that the County and CFS had a conflict of

interest involving E.B. that prevented them from treating Father fairly in A.B.’s

dependency case.

Ms. Ross alleged that, in 2013, E.B. was “a well-respected social worker” for the

County when he reported to CFS management that CFS had been allowing children to be

placed in an unsafe and unsanitary foster home even though the home had been

decertified some 13 years earlier. The County tried to “cover up” E.B.’s “discovery of

longstanding, gross negligence” by CFS in allowing children to continue to be placed in

the foster home. CFS, working with County Counsel, tried to discredit an investigation

involving the foster home that E.B. had completed, by saying that E.B. had exaggerated

the condition of the home and lied in a detention report.

4 At the March 21, 2018 mediation, each parent agreed to participate in individual
counseling, parenting classes, substance abuse treatment, and drug testing. No agreement
was reached concerning jurisdiction, A.B.’s placement, or visitation. At the mediation,
both parents were requesting that the maternal grandmother be considered for A.B.’s
placement.

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 Ms. Ross alleged that CFS instructed another County social worker and “J/D

writer” in the foster home case, Mary Anna Whitehall, to “submit photos” of the home to

the court, which had been “doctored by a CFS assistant director,” and “to remove

allegations” E.B. had made concerning the home. (See Whitehall v. County of San

Bernardino (2017) 17 Cal.App.5th 352, 357-358 [describing Ms. Whitehall’s

“whistleblower” complaint against the County along with her own and E.B.’s roles in the

foster home case].) In sum, Ms. Ross claimed that Father believed CFS and County

Counsel would not treat Father fairly in A.B.’s case, and Father “fear[ed] that [A.B.]

[would] be removed from [E.B.’s] care during the pendency of this matter [based] on

another false allegation against [E.B.]” (Italics added.)

Counsel for A.B. filed a response to Father’s motion, joining the motion and

asking the court to grant it and transfer A.B.’s case to “the most appropriate neighboring

county.” A.B.’s counsel argued that Ms. Ross’s declaration showed by a preponderance

of the evidence that CFS and County Counsel had a conflict of interest involving E.B.’s

and Father’s family that would interfere with their ability to objectively carry out their

duties in A.B.’s dependency case. (See § 16513.5.) A.B.’s counsel noted that Ms. Ross’s

declaration implicated “multiple” CFS social workers, CFS management personnel, and

persons in County Counsel’s office.

County Counsel filed opposition to Father’s motion, arguing that neither CFS nor

County Counsel had a real or apparent conflict of interest with E.B’s and Father’s family.

County Counsel noted that Riverside County had “performed the emergency assessment

that resulted in the recommendation to place” A.B. with E.B., and that Riverside County

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would also be conducting “the full Resource Family Approval assessment” of E.B.

Father cited no authority to support his motion, and, at the detention hearing, the court

noted that Riverside County had already declined to voluntarily accept a transfer of

A.B.’s case.

Through County Counsel, CFS filed its own opposition to Father’s motion. CFS

noted that E.B. was its “primary source of information” in its investigation of A.B.’s

case, and for that reason Father “should have been more afraid of what his brother [E.B.]

was going to say as opposed to what CFS was going to do with the information” that E.B.

provided to CFS concerning Father. CFS also pointed out that, at the detention hearing,

no one claimed that CFS was being “unfair or biased” against Father in its handling of

A.B.’s case.

At the scheduled April 2, 2018 hearing on Father’s motion, the court relieved Ms.

Ross as Father’s counsel and appointed new counsel for Father, after Ms. Ross declared

that she had a conflict of interest in representing Father. The court continued the April 2

hearing to April 20, noting that it was not clear whether Father’s motion would proceed

given that Father had new counsel. Then, on April 20, A.B.’s counsel declared a

potential conflict of interest (§ 317) and the court appointed new counsel for A.B. Also

on April 20, the court advised all counsel “to reevaluate which motions and on what

factors [the motions] are going to be going forward,” and that the court would not be

considering the declarations of any attorneys, including Ms. Ross, who were no longer in

the case. The court set a further “motion date” hearing on June 14.

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 At the June 14, 2018 hearing, Father’s new counsel withdrew Father’s recusal and

transfer motion, telling the court, “We’re withdrawing [Father’s] motion to transfer out.

[Father] does not want that to happen.” The court withdrew A.B.’s “prior motion,” or

response and joinder to Father’s motion, noting that A.B.’s new counsel had since filed a

“narrower motion” asking the court to screen from A.B.’s case any social workers and

supervisors who were parties or potential witnesses in E.B.’s civil suit against the County

and CFS. (§ 16513.5.)

County counsel and CFS filed identical oppositions to A.B.’s new motion, arguing

that section 16513.5 authorized the court to “remove” but not to “screen” social workers

from cases; any removal had to be based on an “actual” rather than a “potential” conflict

of interest; and A.B.’s counsel had not demonstrated any actual conflict. On August 13,

2018, following a hearing, the court denied A.B.’s new motion, without prejudice. The

court noted that there had been “no concern” regarding how CFS social workers or

County Counsel had handled A.B.’s case since its filing, but if there was any reason to

believe any social workers were biased in the case, the court would be “open to hearing

about the specifics” of any such bias.

C. Jurisdiction and Disposition (August 13, 2018)

The court held the jurisdiction and disposition hearing on August 13, 2018,

immediately after it denied A.B.’s counsel’s new motion to screen unspecified CFS social

workers from the case.

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 1. CFS’s Further Reports

On August 9, 2018, CFS reported that the parents had been “extremely

inconsistent” in participating in their services since February 2018, despite having been

given “countless resources, information, and assistance.” The parents continued to deny

engaging in substance abuse and blamed others, including E.B., for A.B.’s removal from

their custody.

The parents were referred to substance abuse programs, individual counseling, and

parenting classes on February 13, 2018. On February 28, they missed their intake

appointments for their individual counseling, claiming they did not know they had

appointments that day. They enrolled in parenting classes on February 28, after the social

worker contacted them, and in March they were enrolled in substance abuse programs.

Mother tested positive for methamphetamine at her “rehab facility” on March 26 but

denied using the drug and implied that CFS, the rehab facility, and the drug testing

facility were colluding against herself and Father.

From around April 9, 2018 to April 26, 2018, Father was in custody after he

turned himself in in lieu of completing his work release program. On April 2, Father

submitted a drug test specimen that was rejected as outside the acceptable temperature

range. Father failed to drug test during the rest of April but tested negative for drugs on

May 12, May 26, and May 30. By the end of May, Father had only attended three of his

eight counseling sessions.

Mother tested negative for controlled substances on April 11, 2018, May 12, May

23, and May 26, but failed to test on May 30, June 7, June 14, June 22, and July 6.

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Mother attempted to test on July 27 and August 2 but “there was a complication at the

testing facility” and she was unable to test on those days.

Around June 12, 2018, Mother reported that she and Father were no longer

together and requested separate visits with A.B. It was reported that Father caught

Mother having an affair and the two of them engaged in an altercation. But, on June 14,

the parents visited A.B. together and denied engaging in any altercation. The parents had

a history of canceling their visits with A.B. and ending the visits early.

On June 20, 2018, the paternal grandmother (PGM) reported that Father was

hospitalized following a June 19 suicide attempt. The PGM reported that Father was

bipolar and had depression; he and Mother fought after he allowed Mother to return to his

home; and as a result, he attempted suicide. Mother told Father to “go kill himself” and

he attempted to do so. It was also reported that Mother had been with a friend of Father’s

who was a drug addict and a drug dealer; Mother and the friend were stealing and selling

things to buy drugs; and Mother was asking about heroin and using “fake urine” for her

drug tests.

On July 3, 2018, Mother reported that she and Father were still together and asked

about continuing their services in Whittier, where she and Father were planning to

relocate. Mother denied using fake urine for her drugs test and denied using any

controlled substances. Father again failed to drug test on June 14, June 19, June 27, and

July 11. On July 11, the parents asked to participate in a Child and Family Team (CFT)

meeting with CFS, and the meeting occurred on July 18. At the meeting, the parents

were given referrals for services in Los Angeles County. On July 18, Father went to a

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drug testing facility but failed to comply with its protocols and left the facility without

testing. He was unable to test at another location later that day because his test had been

canceled.

The parents canceled an August 1, 2018 visit with A.B., saying they did not have

enough gas to get to the visit though they had failed to obtain a gas card. By August 7,

the parents were no longer enrolled in parenting classes; Mother had an August 9 intake

appointment at another substance abuse rehab facility, and Father had yet to contact CFS

to discuss his hospitalization or his services.

2. The Jurisdiction and Disposition Hearing

At the jurisdiction and disposition hearing on August 13, 2018, the parties agreed

to amend the “b-7” allegation of the amended petition to allege that Father had “untreated

bipolar disorder and depression issues,” rather than “ongoing mental health problems,”

and to dismiss the “b-6” allegation that, on June 24, 2017, Father was found to be

“storing a quantity of methamphetamine” within A.B.’s reach. Father submitted on the

other allegations against himself. The court sustained the “b-1” through “b-5”

allegations, namely, that each parent had an ongoing substance abuse problem that

impaired their ability to care for A.B; that each parent engaged in illegal activity that

placed A.B. at risk, and that, on June 24, 2017, Mother was found to be storing a quantity

of methamphetamine within A.B.’s reach.

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 Regarding disposition, the court declared A.B. a dependent; found that Father was

A.B.’s presumed and biological father,5 removed A.B. from the parents’ custody, and

ordered reunification services for each parent. The court also ordered a psychological

evaluation for Father at CFS’s expense and also authorized a psychiatric evaluation, if

necessary or recommended. The court authorized the parents to have separate supervised

visits with A.B. but ruled they could have joint visits by “approval packet” if they were

“compliant with their services.” Neither parent asked to change A.B.’s placement with

E.B.

Although Mother had completed her individual counseling, the court concluded

that another individual counseling referral for Mother was appropriate and also

authorized joint therapy for the parents “as appropriate.” The court ordered both parents

to drug test on August 13, 2018.

The court scheduled a six-month review hearing for February 13, 2019 (§ 366.21,

subd. (e)), but the hearing was continued to April 4, 2019, because the parents contested

the termination of their services. Given the timing of the jurisdictional hearing, the April

4 hearing was a 12-month review hearing. (§ 366.21, subd. (f).)

D. Termination of the Parents’ Services (April 4, 2019)

As of April 4, 2019, the parents were still in a relationship and were living

together in a hotel in Whittier. The parents had completed parenting classes and were

enrolled in substance abuse programs and individual counseling. CFS reported that their

5 DNA tests showed that Father was A.B.’s biological father.

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participation in their substance abuse programs and counseling had been sporadic and

inconsistent. Thus, at the April 4, 2019 review hearing, CFS recommended terminating

the parents’ services and establishing a permanent plan of adoption for A.B.

CFS opined that returning A.B. to the parents would not be in his best interests

because the parents had neither fully completed nor benefited from their case plans, did

not have stable housing, were not financially stable, and had not shown that they were

living a sober lifestyle as indicated by their multiple missed drug tests.

CFS’s reports showed that Mother enrolled in a new substance abuse program on

November 19, 2019, and attended 17 of 60 group sessions through March 28, 2019.

Father enrolled in a substance abuse program on January 18, 2019, and attended 14 of 30

group sessions through March 28. Although, through March 28, both parents had

multiple negative drug tests, both also had multiple “no shows”; one positive test for

methamphetamine, and one diluted test.

Additionally, Father had not completed his court-ordered psychological evaluation

and told CFS that he would find his own doctor to perform the evaluation. He did not

show up for an intake appointment on September 17, 2018, that CFS arranged for him,

and he failed to appear for a December 20, 2018 evaluation that he arranged with his own

psychologist.

During the review period, the parents had separate, supervised visits with A.B. and

did not progress to joint or unsupervised visits. The supervised visits went well; A.B.

was “very happy” to see parents and had “a good bond” with them. A.B. remained

placed with E.B. and had daily contact with many paternal relatives and extended family

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members. A.B. did not have any significant health issues and was developmentally on

track.

Mother testified at the April 4, 2019 review hearing, and both parents asked the

court to extend their services for another six months. A.B.’s counsel asked the court to

follow CFS’s recommendation to terminate the parents’ services, noting that the parents

had already had around 12 months of services and had not completed their services

despite repeated referrals. County Counsel noted that Father was initially uncooperative

with CFS and “extremely late” in participating in his services, and neither parent had

completed a substance abuse program.

The court terminated the parents’ services, set a section 366.26 hearing on July 29,

2019,6 and authorized the parents to have joint supervised visits with A.B. Again, neither

parent asked the court to change A.B.’s placement.

E. The Parents’ Section 388 Petitions and CFS’s Further Reports

On May 21, 2019, Father filed a section 388 petition seeking further reunification

services and asking the court to vacate the section 366.26 hearing. Father showed that he

had completed his substance abuse program on May 1, 2019, after completing 28 of 35

group sessions. Father was to continue with weekly group meetings, weekly counseling

sessions, and weekly drug testing through his substance abuse program. Father had also

6
The parent filed notices of intent to file writ petitions in case No. E072542,
challenging the April 4, 2019 order setting the section 366.26 hearing. (Cal. Rules of
Court, rules 8.450 to 8.452.) The writ case was dismissed after the parents filed no issue
statements, indicating there were no legal or factual issues upon which to base an
extraordinary writ petition.

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completed eight individual counseling sessions. His therapist reported he had been

“making positive progress” and “gaining insight into [his] behaviors and experiences.”

Father’s section 388 petition did not seek to modify A.B.’s placement with E.B.

In its July 23, 2019 section 366.26 report, CFS recommended adoption as A.B.’s

permanent plan. A.B. “presented as a very happy little boy” and called E.B. “daddy.”

E.B. was committed to adopting A.B. E.B. owned a four-bedroom home he shared with

A.B., another paternal uncle, and the paternal grandmother. A.B. was “always

surrounded by family who love him and [were] committed to providing him a safe and

loving home.” CFS claimed the parents’ supervised visits appeared to be detrimental to

A.B. During visits, the parents were not interacting with A.B., were on their phones,

were “cussing” and “making threats” to E.B., the family, a social worker, and “anyone

else” who was involved with the case. Father was also threatening to kidnap A.B. and

take him where he would never be found, such as Canada or Mexico.

On July 25, 2019, CFS filed a response to Father’s petition, asking the court to

deny it in part because Father had not completed his CFS-sponsored psychological

evaluation, had not submitted to numerous random drug tests, tested positive for

methamphetamines on March 12, 2018,7 and positive for amphetamines on January 28,

2019. Father had completed his own psychological evaluation but had not authorized

CFS to speak with or obtain any reports from his psychologist.

7 Father’s March 12, 2018 drug test specimen was retested on April 2, 2018, and
the retest showed that the original test on March 12 was a “false positive.”

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 On July 29, 2019, the court granted E.B.’s request to be appointed A.B.’s de facto

parent. In court on July 29, A.B.’s counsel asked the court to find that the parents’ visits

were detrimental to A.B. and to suspend the visits pending the next hearing or order that

the visits be “closely supervised at CFS only.” County Counsel joined the request and

asked the court to reduce the frequency of the visits from weekly to once or twice

monthly. The court did not reduce the frequency of the visits but ordered them to be

“closely monitored” and supervised only at CFS.

On August 6, 2019, Mother filed her own section 388 petition, seeking further

reunification services, increased visitation, and to vacate the section 366.26 hearing.

Mother adduced evidence that she had completed her entire case plan, including her

counseling and substance abuse treatment program. A letter from Mother’s substance

abuse counselor stated that Mother had “excelled with the curriculum” and showed “the

desire to build a healthy sober lifestyle.” But the letter did not state when Mother had

completed the program or include any information concerning Mother’s drug testing or

drug test results.

On September 27, 2019, CFS reported that the parents visited A.B. on July 31,

August 12, and August 19; the visits went well and there were no concerns. Mother had

a September 9 visit that also went well, and she was “very interactive” with A.B. Father

had still not given CFS a copy of his psychological evaluation, despite three requests for

it in August and September.

CFS filed opposition to Mother’s petition on September 27, 2019. CFS noted that

it had taken Mother eight months to complete a three-month substance abuse program;

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Mother did not complete her second course of individual counseling until July 2019;

Mother had not benefited from her counseling; and Mother had missed many drug tests.

The letter from Mother’s counselor did not state how many drug tests Mother either had

taken or should have taken during her substance abuse program. Mother quit her job in

July 2019, and was living with friends in Crestline, although she was still in a

relationship with Father. Mother said she moved to Crestline in the hope that CFS would

provide her with further services, and if she did not receive the services she would move

back in with Father.

F. The Evidentiary Hearing on the Parents’ Section 388 Petitions (October 1, 2019)

At an October 1 2019 evidentiary hearing, the parents testified in support of their

section 388 petitions. Father testified that he completed his substance abuse program on

April 28, 2019, along with his counseling, and he was currently in aftercare. He had

never been diagnosed with bipolar disorder but suffered from depression, and through

continued counseling he was learning “better methods” of dealing with his depression.

Father claimed he had not used any controlled substances since July 6, 2017, and

had never used any controlled substances with Mother. He had drug tested several times

since May 2019, but he did not have the test results. He denied having a current

substance abuse problem. He did not authorize CFS to obtain a copy of his psychological

evaluation, and he did not complete the CFS-sponsored psychological evaluation because

he felt CFS evaluators were biased. He and Mother were still in a relationship but were

not currently living together.

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 Mother testified that she had learned how not to place A.B. at risk and not to use

drugs when she felt anxious or depressed. She signed up for her most recent substance

abuse program in November 2018, and completed it in either July or August 2019. In her

program she learned how to identify her substance abuse “triggers,” how to remain sober,

and live a healthy lifestyle. She had last used methamphetamine in March 2018, and

acknowledged that she had an “ongoing” substance abuse problem. The court accepted

the parties’ stipulation that the parents had been consistent with their visits, that the visits

went well, and that A.B. recognized the parents as “mommy” and “daddy.”

In denying both petitions, the court noted that both parents appeared to be taking

their “current programs” seriously but, given their history of “ongoing problems,” they

needed to show “a substantial period of both sobriety and stability” before the court could

find a change in circumstances, and neither parent made that showing. The parents also

failed to show that granting them additional services would serve A.B’s best interests,

given that A.B. had spent “the majority of his life” with E.B. and his need for

permanency and stability was paramount. To show a substantial change in

circumstances, the court said the parents would have to finish all of their aftercare, show

their sobriety through consistent drug testing, find stable housing, and address Father’s

mental issues.

The court expressly found the parents’ testimony not credible concerning the last

time they used controlled substances. The court noted that Father’s own psychological

evaluation, which Father adduced at the hearing, indicated that he told his psychologist

that he last used methamphetamine in the early 2000’s, but this was inconsistent with

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Father’s testimony that he had been sober since July 6, 2017. The court found that both

parents had minimized their own and each other’s addiction issues and Father’s mental

health issues, and had unstable housing. Mother had been using methamphetamine “on

and off” since she was 15 years old, had not been sober for a substantial period, and had

taken nine months to complete her most recent 90-day substance abuse program.

G. The Section 366.26 Hearing (October 30, 2019)

At the section 366.26 hearing on October 30, 2019, the court terminated parental

rights and selected adoption as A.B.’s permanent plan. The court noted that three-year-

old A.B. had been placed with E.B. for nearly two years, was thriving in E.B.’s care, and

there were no apparent impediments to A.B.’s adoption. The court rejected the parents’

requests to find that the parental benefit exception to adoption applied and to place A.B.

in a long-term guardianship. The court found that neither parent occupied a parental role

in A.B.’s life, given that A.B. looked to E.B. for his daily needs and the parents had never

progressed beyond limited supervised visitation.

III. DISCUSSION

A. Father Has Forfeited His Recusal Claim Concerning CFS and County Counsel

Father claims the juvenile court should have recused the entire offices of CFS and

County Counsel from the case. We conclude that Father has not preserved this claim for

review.

1. Relevant Background

As discussed, in June 2018, Father withdrew his February 2018 motion to recuse

the entire offices of CFS and County Counsel from A.B.’s case and to transfer the case to

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another county. Father’s new, court-appointed counsel withdrew the motion after

Father’s former privately retained counsel, Ms. Ross, declared a conflict of interest in

representing both Father in A.B.’s case and E.B. in E.B.’s civil suit against the County.

Thereafter, the court denied the more limited motion, by A.B.’s counsel, to screen from

A.B.’s case any CFS social workers and supervisors who were parties or potential

witnesses in E.B.’s suit against the County. (§ 16513.5.) In denying A.B.’s motion, the

court noted that no party was claiming that anyone from CFS or County Counsel who

was involved in the case had been biased in their handling of the case, and if any party

raised any such claims the court would be “open to hearing about the specifics” of them.

In his withdrawn motion, Father claimed that E.B.’s pending civil suit against the

County and CFS gave CFS and County Counsel a motive to remove A.B. from E.B.’s

care based on false allegations against E.B. But that never occurred; A.B. remained

placed with E.B. throughout A.B.’s case, E.B. became A.B.’s de facto parent, and CFS

recommended that A.B. be adopted by E.B.

2. Analysis

Father now claims for the first time in this appeal that “the County would have

been tempted to align itself” with E.B. in A.B.’s dependency case, not because E.B. “was

a truthful historian about the parents or because adoption with [E.B.] was in the best

interest” of A.B., but because the County had a financial interest in appeasing E.B. in

order to mitigate the County’s financial exposure to E.B. in E.B.’s pending civil suit

against the County. Father argues the County had a financial interest in aligning itself

with E.B. at the expense of treating Father unfairly in A.B.’s case. Father also argues

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that, had CFS opposed placement of A.B. with E.B. or E.B.’s adoption of A.B., then E.B.

could have had another retaliation claim against CFS.

As County Counsel observes, “Father is essentially seeking relief for the first time

on appeal of an issue not submitted to the juvenile court for review.” “It is axiomatic that

arguments not raised in the trial court are forfeited on appeal.” (Kern County Dept. of

Child Support Services v. Camacho (2012) 209 Cal.App.4th 1028, 1038.) Father’s claim

in this appeal that the juvenile court should have recused the entire offices of CFS and

County Counsel, based on the County’s alleged financial conflict of interest involving

E.B. was never presented to the juvenile court for its consideration in the first instance.8

Thus, Father has forfeited his right to claim in this appeal that the court should have

recused the entire offices of CFS and County Counsel from A.B.’s case.

B. The Parents’ Section 388 Petitions Were Properly Denied

Section 388 allows a parent to petition the juvenile court to change, modify, or set

aside a previous order of the juvenile court. (In re Marilyn H. (1993) 5 Cal.4th 295, 308-

309.) To obtain the requested modification, the parent must show by a preponderance of

the evidence that there has been either a change of circumstance or new evidence, and

8 In his opening brief, Father mistakenly indicates that A.B.’s counsel moved the
court to disqualify the entire offices of CFS and County Counsel from A.B.’s case. And,
in his reply brief, Father mistakenly indicates that the court ruled on this question and that
all parties had the opportunity to argue their positions and did so. Not so. Neither Father,
A.B.’s counsel, nor any other party ever moved forward with a motion to recuse the
entire offices of CFS and County Counsel from A.B.’s case. Rather, as discussed, the
court only ruled on and denied A.B.’s motion to screen particular CFS employees from
the case, not to recuse the entire offices of CFS and County Counsel from the case.

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that the requested modification is in the best interests of the child. (In re Alayah J.

(2017) 9 Cal.App.5th 469, 478; In re Stephanie M. (1994) 7 Cal.4th 295, 317.)

We review the grant or denial of a section 388 petition for an abuse of discretion

and will not disturb the court’s ruling unless an abuse discretion is clearly shown. (In re

Marcelo B. (2012) 209 Cal.App.4th 635, 642.) Both parents claim the juvenile court

abused its discretion in denying their section 388 petitions for further reunification

services. We find no abuse of discretion in the court’s denial of either petition.

Father claims he showed by “abundant evidence” that he “turned his life around”

in the time before the filing of and the hearing on his petition; thus, he showed a change

of circumstance. Additionally, Father claims he showed that granting him further

services was in A.B.’s best interests, because his visits with A.B. went well and A.B. was

happy to see him. The juvenile court reasonably concluded, however, that Father failed

to show either changed circumstance or best interests.

As the court pointed out in denying both parents’ petitions, neither parent showed

that they had been clean and sober for a substantial period of time given the length of

their substance abuse histories. The court found each parent’s testimony not credible

concerning when they last used methamphetamine. Indeed, neither parent adduced any

evidence that they had tested negative for controlled substances for a sustained or

substantial period before the October 1, 2019 hearing on their petitions. Father also did

not show that he had addressed his longstanding mental health issues, and neither parent

had stable housing.

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 The court also reasonably concluded that granting reunification services to either

parent would not serve the best interests of A.B. After a parent’s reunification services

are terminated, a parent’s interest in the care, custody, and companionship of their child

is no longer paramount and the focus shifts to the child’s need for permanency and

stability. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.)

By the time of the October 1, 2019 hearing, A.B. was over three years old, and had

been placed with A.B. since January 23, 2018. As the court found, granting either parent

additional services would have meant delaying A.B.’s permanency while “waiting for the

parents to possibly make a substantial change in circumstances.” Given the parents’

failure to show their continued sobriety through consistent drug testing at the time of the

October 1, 2019 hearing, despite their having had access to CFS-sponsored substance

abuse and other services since July 2017, the court reasonably concluded that it was not

in A.B.’s best interests to delay his permanency while granting the parents additional

services.

Mother claims the court unreasonably faulted her for not demonstrating a

sustained period of sobriety following her completion of her substance abuse program in

July or August of 2019. Mother points out that she completed two parenting classes, two

rounds of individual counseling, and a substance abuse program—all of the required

components of her case plan. She argues that, in denying her petition, the court

misconstrued “the purpose” of section 388, which is to provide an “ ‘escape mechanism’

when parents complete a reformation in the short, final period” following the termination

of their services and before their parental rights are terminated. (In re Kimberly F. (1997)

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56 Cal.App.4th 519, 528.) The court did not misconstrue the purpose of section 388.

Rather, it properly considered A.B.’s paramount need for stability and permanency in

concluding that his best interests would not be served by granting either parent additional

services and additional time, to show they could safely reunite with A.B. Despite the

parents’ completion of additional services, as demonstrated in their petitions, neither had

progressed beyond supervised visits by October 1, 2019, six months after their services

were terminated. Further, given the parents’ long term substance abuse histories, the

court reasonably concluded that their short period of reported recovery was insufficient to

demonstrate changed circumstances.

C. The Court Properly Determined That the Parental Benefit Exception Did Not Apply

Both parents claim the court erroneously concluded that the parental benefit

exception to the adoption preference did not apply, and that the court should have instead

ordered a permanent plan of legal guardianship. Again, we find no abuse of discretion.

1. Applicable Legal Principles

At a section 366.26 hearing, the juvenile court selects and implements a permanent

plan for the dependent child. (In re K.P. (2012) 203 Cal.App.4th 614, 620.) These

include (1) adoption, necessitating termination of parental rights, (2) guardianship, or (3)

long-term foster care. (§ 366.26, subds. (c)(1), (4)(A); In re J.C. (2014) 226 Cal.App.4th

503, 528.) If the court finds the child is adoptable, it “ ‘shall terminate parental rights’ ”

and select adoption as the child’s permanent plan, unless it finds that one or more

exceptions to the statutory adoption preference applies. (In re K.P., at p. 620; see

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§ 366.26, subd. (c)(1)(A)-(B).) A parent has the burden of showing that an exception

applies. (In re Scott B. (2010) 188 Cal.App.4th 452, 469.)

The parental benefit exception applies when the parent has “maintained regular

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

relationship.” (§ 366.26, subd. (c)(1)(B)(i); see In re Angel B. (2002) 97 Cal.App.4th

454, 466.) To show that the child would benefit from continuing the relationship with the

parent, the parent “must do more than demonstrate . . . an emotional bond with the child”;

the parent “must show that he or she occupies a ‘parental role’ in the child’s life.” (In re

Derek W. (1999) 73 Cal.App.4th 823, 827.)

The parent must also show 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 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. (1994) 27 Cal.App.4th 567, 575.)

“ ‘The balancing of [these] competing considerations must be performed on a

case-by-case basis and take into account many variables, including the age of the child,

the portion of the child’s life spent in the parent’s custody, the “positive” or “negative”

effect of interaction between parent and child, and the child’s particular needs.

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[Citation.] When the benefits from a stable and permanent home provided by adoption

outweigh the benefits from a continued parent/child relationship, the court should order

adoption.’ [Citation.]” (In re Jasmine D. (2000) 78 Cal.App.4th1339, 1349-1350.) This

rule applies unless “severing the natural parent/child relationship would deprive the child

of a substantial, positive emotional attachment such that the child would be greatly

harmed.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575, italics added.)

2. Standard of Review

California appellate courts are divided over the appropriate standard of review of

an order applying the parental benefit exception. Some courts have applied the

substantial evidence standard; others have applied the abuse of discretion standard or a

combination of the substantial evidence and abuse of discretion standards; and still others

have required evidence compelling a finding in favor of the parent on the beneficial

relationship issue as a matter of law. (See, e.g., In re L. Y. L. (2002) 101 Cal.App.4th

942, 947 [substantial evidence]; In re Jasmine D., supra, 78 Cal.App.4th at p. 1351

[abuse of discretion]; In re Collin E. (2018) 25 Cal.App.5th 647, 663, [combination]; In

re Breanna S. (2017) 8 Cal.App.5th 636, 647 [matter of law].)

Our Supreme Court has granted review to determine the appropriate standard that

governs appellate review of the application of the parental benefit exception. (In re

Caden C. (2019) 34 Cal.App.5th 87, 106, review granted July 24, 2019, S255839.) Here,

we conclude that, under any applicable standard, the court properly determined that the

parental benefit exception did not apply to either parent’s relationship with A.B.

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 3. Analysis

The court’s refusal to apply the parental benefit exception was proper for several

reasons. First, there was no evidence that A.B. would be greatly harmed by the

termination of parental rights and the severing of any positive emotional attachment he

may have had with either parent. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) At

the time of the section 366.26 hearing on October 30, 2019, A.B. was over three years old

and had been living with E.B. since January 23, 2018, when he was around 17 months

old. A.B. was thriving in E.B.’s care and looked to E.B. for his daily needs. Although

A.B. recognized the parents as “mommy” and “daddy,” there was no indication that

severing A.B.’s relationship with the parents would be detrimental to or greatly harm

A.B.

Second, the court reasonably found that neither parent occupied a parental role in

A.B.’s life. (In re Derek W., supra, 73 Cal.App.4th at p. 827.) Although the parties

stipulated that the parents consistently visited A.B. and that the visits went well, the court

reasonably concluded, based on CFS’s reports, that A.B. looked to E.B. for his daily

needs. As the court also noted, the parents never progressed beyond limited supervised

visitation. Third and lastly, neither parent showed that their parent-child relationship

with A.B. promoted A.B.’s well-being to such a degree as to outweigh the well-being that

A.B. would gain in a permanent home with new, adoptive parents. (In re Autumn H.,

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

Thus, we conclude that the juvenile court properly determined that the parental

benefit exception did not apply.

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 IV. DISPOSITION

The October 1, 2019 orders denying the parents’ section 388 petitions for further

services, and the October 30, 2019 section 366.26 orders terminating parental rights and

selecting adoption as A.B.’s permanent plan, are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS
J.

We concur:

MILLER
Acting P. J.

RAPHAEL
J.

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