In re S.B. CA5

Filed 9/28/20 In re S.B. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT

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

FRESNO COUNTY DEPARTMENT OF F080613
SOCIAL SERVICES,
(Super. Ct. No. 18CEJ300335-1)
Plaintiff and Respondent,

v. OPINION
VERONICA B.,

Defendant and Appellant.

THE COURT*
APPEAL from orders of the Superior Court of Fresno County. Brian M. Arax,
Judge.
Roni Keller, under appointment by the Court of Appeal, for Defendant and
Appellant.
Daniel C. Cederborg, County Counsel, and Kevin A. Stimmel, Deputy County
Counsel, for Plaintiff and Respondent.
-ooOoo-

* Before Levy, Acting P.J., Franson, J. and Snauffer, J.
 At a Welfare and Institutions Code section 366.261 hearing January 21, 2020, the
juvenile court found now four-year-old S.B. likely to be adopted and terminated mother
Veronica B.’s parental rights to the child. Mother challenges the orders from the
jurisdiction and disposition hearing, claiming her right to challenge those orders is
preserved. She also contends the juvenile court erred when it denied her section 388
petition and failed to apply the beneficial parent-child relationship exception to adoption.
We affirm.
STATEMENT OF THE FACTS AND CASE
Nearly three-year-old S.B. was placed in temporary foster care by the Fresno
County Department of Social Services (department) on November 26, 2018, when his
mother, under the influence of methamphetamine, was hospitalized pursuant to section
5150. The whereabouts of S.B.’s alleged father, A.O., was unknown.2
Prior to being hospitalized, mother punched a man she accused of molesting S.B.,
after she left him at a friend’s house for 10 minutes. All those present at the residence
insisted S.B. had been out in the front yard with them and no one had taken him into the
house or touched him. When police arrived at mother’s home, the gas was on, but she
was not cooking. Her roommates advised officers that mother was being evicted within
days and that they were afraid of mother, whom they suspected of using drugs. The
roommates reported mother had been awake for over 24 hours. S.B. was dirty and his
clothing smelled, but he did not have an signs of sexual abuse.
Mother told the officers she punched the man because S.B. told her the man put
his finger in his butt and “poop came out.” Mother reported three new holes and
defecation in S.B.’s underwear after the incident. Mother denied not providing adequate

1 All further statutory references are to the Welfare and Institutions Code unless
otherwise stated.
2 Alleged father is not a party to this appeal.

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care for S.B. and denied turning the gas on in the home. According to mother, she
stopped using methamphetamine two years prior, and now used only marijuana, but not
in the home or around her children.
Confronted with a positive test for methamphetamine upon section 5150
admission, mother claimed the man who molested S.B. put methamphetamine in her beer.
Mother said she had not sought drug treatment previously, but was willing to enter drug
treatment if she needed to. She also reported untreated trauma with her family and
having been raised in foster care. Mother had a criminal history of arrests and charges
dating back to 2005.
Mother has two other children, both older than S.B. Both half siblings lived
primarily with their father, but had court-ordered visits with mother on weekends.
Detention
On November 27, 2018, the department filed a section 300 petition alleging S.B.
was at risk of harm due to mother’s substance abuse and mental health issues. Mother
was released from section 5150 hospitalization that same day.
At the detention hearing November 28, 2018, S.B. was detained and placed with a
maternal aunt. The department was ordered to offer mother reunification services,
including parenting classes, substance abuse assessment and treatment, random drug
testing, domestic violence index assessment, and mental health evaluation and treatment.
Mother reported no known Native American heritage. Jurisdiction and disposition were
set for January 9, 2019.
Jurisdiction/Disposition
The report prepared in anticipation of jurisdiction and disposition recommended
reunification services be bypassed for mother, pursuant to section 361.5, subdivision
(b)(13). That section provides that reunification services need not be provided if a parent
with a history of extensive and chronic drug or alcohol use has resisted prior court-
ordered treatment within a three-year period immediately prior to the filing of the

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petition, or has failed or refused to comply with a court-ordered program on at least two
occasions. (§ 361.5, subd. (b)(13).) The report chronicled mother’s self-reported 14-year
substance abuse issues, which began back in high school. She had had a June 2008 arrest
for possession of a controlled substance, and ordered into drug treatment. In September
of 2014, mother was arrested and charged with driving under the influence (DUI), both
alcohol and drug related. And in January of 2015, she was convicted of a misdemeanor
DUI involving alcohol and was required to complete an alcohol offender program.
At the scheduled contested jurisdiction/disposition hearing February 21, 2019, the
hearing was continued, due to a recent substitution of counsel for mother. However,
prior to adjourning the hearing, the juvenile court expressed concern with mother’s
decision making—she spoke rapidly, was visibly nervous and weepy, raised her voice,
and was oppositional with her attorney in open court, expressing her desire to proceed
without assistance of counsel. Mother insisted she was prepared for trial and had all of
the facts and enough evidence to prevail at the hearing.
The juvenile court determined it was best to appoint a guardian ad litem for
mother, noting her desire to go forward with the hearing without counsel, but not really
wanting to represent herself. The juvenile court also noted mother’s demeanor, which
vacillated between moments of calm and moments when she blurted out and was on
edge; and the juvenile court’s belief that mother was not in a position to decide whether
or not to proceed on that day. Mother agreed to the appointment of a guardian ad litem
and the hearing was continued to March 13, 2019.
The jurisdiction/disposition hearing scheduled for March 13, 2019, was continued
for contest to May 29, 2019. At the time, mother was receiving once a week visits with
S.B.
In an addendum report, the department reported that S.B. was moved from
maternal aunt’s home on March 1, 2019, to a prospective adoptive foster home, after
maternal aunt reported she was not able to provide a permanent home for S.B. The

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maternal aunt agreed to continue to monitor visits between mother and S.B., but warned
the prospective adoptive caregiver that, in her opinion, mother was an aggressive and
violent person.
The department reported that, when mother and the older half siblings arrived at a
visit on March 17, 2019, mother picked up S.B. and told the older children to “run.”
Maternal aunt, who was to supervise the visit, ran after her and police were called.
Mother was arrested for attempted kidnapping and violating court orders. The
prospective adoptive caregiver reported S.B. had nightmares following this incident.
On May 20, 2019, S.B. told his prospective adoptive caregivers that he did not
want to see mother. The prospective adoptive caregivers reported stress and anxiety on
the part of S.B. on the days he was scheduled to see mother. S.B. began attachment-
based therapy in May of 2019.
The department reported that mother had not participated in the services it had
offered and recommended that she not be given reunification services, again noting her
continued substance abuse and mental health issues.
At the May 29, 2019, jurisdiction/disposition hearing, mother was represented by
counsel and guardian ad litem was present. At the hearing, mother testified that she
loved S.B. and that, on the day S.B. was removed, he had told her he had been abused.
Mother insisted that she did not use methamphetamine, only marijuana, and that she was
capable of caring for S.B. She testified that she was employed and able to provide S.B.
with food and shelter and that she had not been evicted from her home.
The juvenile court found the allegations in the petition true, finding that mother
had a substance abuse problem, that she had been hospitalized under section 5150, that
she exhibited behaviors consistent with mental health issues, and that she had been found
to be under the influence while caring for S.B.
S.B. was declared a dependent of the juvenile court and foster care continued.
Finding that visitation was detrimental to S.B., the juvenile court suspended visitation.

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Reunification services were denied, pursuant to section 361.5, subdivision (b)(13), due to
mother’s active or passive resistance to substance abuse treatment by relapsing during the
previous three years.
A section 366.26 hearing was set for September 18, 2019. While mother had been
present during the hearing, she had to be removed due to her “loud outbursts,” and
therefore was not advised in person of her writ rights. Mother’s trial counsel and
guardian ad litem, however, were both present, and mother was mailed, via first class
mail, her writ rights.
Writ Proceeding
On May 30, 2019, mother, in propria persona, filed a notice of intent to file a writ
petition in the case, initiating case No. F079344 in this court. The case was dismissed
July 18, 2019, when no writ petition seeking extraordinary relief was filed.
Section 388 Petitions
On September 27, 2019, mother, in propria persona, filed a section 388 petition
seeking reinstatement of visitation with S.B. and termination of jurisdiction on grounds
that she had been enrolled in classes, was seeking employment, maintained contact with
the social worker, and maintained sobriety. The petition alleged granting the section 388
petition would be in the best interests of S.B. so that he did not suffer believing he had
been abandoned, when mother, in fact, wanted to be with him.
The section 388 petition was summarily denied on September 30, 2019.
Mother, in propria persona, filed a second section 388 petition on November 20,
2019, seeking information about S.B.’s whereabouts and seeking an evidentiary hearing
on reinstatement of visits, the return of S.B. to mother’s custody and care, and
termination of jurisdiction. Mother alleged she had a home for S.B., she and S.B. were
bonded, that he would have more love in her care, and that it was in his best interest to
know that she did not abandon him, but had fed, sheltered and clothed him. In court,
mother reported that she had gotten employment and had a home.

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 The juvenile court set the section 388 petition for hearing.
Report for Section 366.26 Hearing
In the report prepared for the section 366.26 hearing, the department stated S.B.
appeared to be comfortable in the prospective adoptive home, where he had been placed
since the beginning of March of 2019. S.B. appeared to be developmentally on track and
verbally able to express his wants and needs. The prospective adoptive caretakers were
interested in adopting S.B.
Section 388 and Section 366.26 Hearings
On January 21, 2020, at the contested section 388 and section 366.26 hearing,
mother, represented by counsel and with guardian ad litem present, testified she had been
S.B.’s only caregiver until he was taken into protective custody, and that he had a
relationship with her and his two older stepsiblings. Mother testified she had a bond with
S.B., had taught him to talk, had potty-trained him, taught him to be independent, and had
nursed him when he was sick. Mother testified that S.B. deserved to know that she loved
him and she was doing everything she could to reunify with him, which she described as
showing up in court and calling as often as possible to check on him. Mother thought it
in S.B.’s best interest to have the opportunity to be back with his family. Mother testified
that, if the juvenile court selected a permanent plan of legal guardianship, she would
work to secure the bond that he had with his siblings.
Mother’s counsel argued that mother had consistently attended hearings, missed
only one or two interim hearings, had consistently wanted to reunify with S.B., and that
the beneficial parent-child relationship exception should apply to prevent termination of
parental rights.
The juvenile court denied mother’s section 388 petition and terminated parental
rights in favor of the permanent plan of adoption.

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 DISCUSSION

I. FAILURE TO CHALLENGE JURISDICTIONAL AND DISPOSITIONAL
ORDERS
Mother’s first three arguments are that the juvenile court erred at the combined
jurisdiction/disposition hearing setting a section 366.26 hearing by (1) taking jurisdiction,
(2) denying reunification services, and (3) denying visitation at the combined
jurisdiction/disposition hearing setting a section 366.26 hearing. Although mother failed
to seek timely review of these findings and therefore forfeited such challenges, she
contends we should nonetheless consider her claim because the appointed guardian ad
litem was not able to waive her right to review of the findings “through simple non-
action.” We disagree, but in any event, find no error.
Applicable Law and Analysis
Whenever a juvenile court sets a section 366.26 hearing, it must advise all parties,
including the parents, that those wishing to preserve any right to review on appeal the
order setting the section 366.26 hearing must seek an extraordinary writ by filing a notice
of intent to file a writ petition. (Cal. Rules of Court, rule 5.590(b).) Thus, at the setting
of the section 366.26 hearing here, the juvenile court was required to provide notice
orally if the party was present at the time the order was made, or, if a party was not
present, by first-class mail to the last known address of the party. (§ 366.26, subd.
(l)(3)(A)(i)–(ii); see also Cal. Rules of Court, former rule 5.590(b).)
Generally, an order denying or terminating family reunification services and
setting a section 366.26 hearing is not appealable and may only be reviewed by way of a
writ petition. (§ 366.26, subd. (l)(1), (2); In re Hannah D. (2017) 9 Cal.App.5th 662,
678; In re A.H. (2013) 218 Cal.App.4th 337, 346; In re T.W. (2011) 197 Cal.App.4th 723,
729.) However, a parent may challenge the order on appeal if the juvenile court did not
advise the parent of his or her right to seek writ review. (In re A.A. (2016) 243
Cal.App.4th 1220, 1235 [“when a parent is not properly advised of his or her right to

8.
challenge the setting order by extraordinary writ, and consequently the parent does not
timely file a writ petition, good cause exists to consider issues relating to the setting
hearing”] (A.A.); In re Lauren Z. (2008) 158 Cal.App.4th 1102, 1110 [mother could
challenge order terminating her reunification services where she did not receive a writ
advisement]; In re Harmony B. (2005) 125 Cal.App.4th 831, 838–839 [because father
was not given notice, he could raise issues concerning the setting hearing in appeal from
orders following the section 366.26 hearing].)
Here, mother was at the jurisdiction/disposition hearing, but had to be removed
due to her disruptive behavior, which occurred prior to the juvenile court setting the
section 366.26 hearing and advising her of her writ rights. However, mother’s counsel
and guardian ad litem were present at the time, and the juvenile court ordered the clerk to
mail writ rights to mother by first class mail within 24 hours to her last known address to
inform her of her rights. The juvenile court clerk mailed mother her rights the following
day to the address provided by mother.
Mother does not claim that she did not receive those rights. In fact, on May 30,
2019, mother, in propria persona, filed a notice of intent to file a writ petition in the case,
initiating case No. F079344 in this court. The case was dismissed July 18, 2019, when no
writ petition seeking extraordinary relief was filed. Instead, what mother is claiming on
appeal is that the guardian ad litem appointed for her could not waive writ rights “through
simply non-action,” and this court should address the issues she raises as to the
jurisdiction and disposition orders.
In support of her argument, mother relies on two cases—A.A., supra, 243
Cal.App.4th 1220 and In re Cathina W. (1998) 68 Cal.App.4th 716 (Cathina W.). We
find neither case helpful to mother’s argument.
In Cathina W., supra, the court found good cause for the mother’s failure to file a
notice of intent and writ petition. However, in Cathina W., the mother, who was not
present at the setting of the section 366.26 hearing, was not provided adequate notice.

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(Cathina W., supra, 68 Cal.App.4th at p. 722.) Here, mother does not contend that she
was not properly noticed.
And in A.A., the mother, who had been appointed a guardian ad litem, was not
present at the setting of the section 366.26 hearing, and was not properly provided notice,
by mail, of her right to appeal or seek writ relief from juvenile court orders. The court
found good cause for mother’s failure to file a notice of intent and a writ petition, noting
that a guardian ad litem appointed for a parent in a juvenile dependency proceeding does
not have the authority to forgo filing a petition for extraordinary writ—with the
consequence of waiving the parent’s right to challenge orders made at the setting
hearing—without first consulting with the parent and the parent’s attorney. (A.A., supra,
243 Cal.App.4th at pp. 1234–1235.) Here, however, not only did mother have notice, but
she also filed a writ petition.
Having failed to seek timely writ review following the jurisdiction/disposition
hearing, mother is now precluded from seeking appellate review of the juvenile court’s
jurisdictional and dispositional findings and orders.
Even addressing the issue on the merits, we find the findings and orders supported
by substantial evidence, and find no abuse of discretion on the part of the juvenile court.
Finding of Jurisdiction
We review the juvenile court’s jurisdictional findings using the substantial
evidence standard of review, where we determine whether evidence of reasonable,
credible and solid value supports the juvenile court’s findings. We do not reweigh the
evidence, nor do we consider matters of credibility. (In re Sheila B. (1993) 19
Cal.App.4th 187, 199–200.) “ ‘[W]e must uphold the [trial] court's [jurisdictional]
findings unless, after reviewing the entire record and resolving all conflicts in favor of the
respondent and drawing all reasonable inferences in support of the judgment, we
determine there is no substantial evidence to support the findings.’ ” (In re J.N. (2010)
181 Cal.App.4th 1010, 1022.)

10.
 A child comes within the jurisdiction of the juvenile court under section 300,
subdivision (b)(1), as relevant here, when “[t]he child has suffered, or there is a
substantial risk that the child will suffer, serious physical harm or illness, as a result of ...
the inability of the parent or guardian to provide regular care for the child due to the
parent’s or guardian’s mental illness ... or substance abuse.” “Although section 300
generally requires proof the child is subject to the defined risk of harm at the time of the
jurisdiction hearing [citations], the court need not wait until a child is seriously abused or
injured to assume jurisdiction and take steps necessary to protect the child [citation]. The
court may consider past events in deciding whether a child presently needs the court’s
protection. [Citation.] A parent’s ‘ “[p]ast conduct may be probative of current
conditions” if there is reason to believe that the conduct will continue.’ [Citation.]” (In
re Christopher R. (2014) 225 Cal.App.4th 1210, 1215–1216.)
Mother contends the juvenile court’s orders sustaining dependency jurisdiction
over S.B. should be reversed because the department did not meet its burden of showing
S.B. had suffered substantial physical harm or was at substantial risk of suffering such
harm as alleged in the section 300 petition. Specifically, mother argues she and S.B. had
a parent-child relationship, that S.B.’s half siblings felt safe with her, and she had not
previously had a child dependency case, and therefore the department did not produce
substantial evidence that current mere substance usage or the fact that she was
hospitalized under section 5150 presented a substantial risk of harm to S.B.
Mother correctly argues that, generally, substance abuse, without more, is an
insufficient ground to assert jurisdiction in dependency proceedings under section 300.
(In re L.W. (2019) 32 Cal.App.5th 840, 848–850.) Here, however, the juvenile court had
before it evidence of mother’s positive test for methamphetamine; observations that
mother appeared to be under the influence on the day she was placed on a section 5150
hold; mother’s long standing history of drug use dating back 14 years; mother disclosure

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of regular marijuana use while being the sole car provider for S.B.; and admission by
mother that she needed an inpatient drug treatment program.
We also note that, in cases involving children of “ ‘tender years,’ ” “the finding of
substance abuse is prima facie evidence of the inability of a parent or guardian to provide
regular care resulting in a substantial risk of physical harm.” (In re Drake M. (2012) 211
Cal.App.4th 754, 767; accord, In re Natalie A. (2015) 243 Cal.App.4th 178, 185–186; In
re Christopher R., supra, 225 Cal.App.4th at p. 1216.) Here, S.B. was three years old
when the juvenile court asserted jurisdiction. Based on the evidence that mother was
abusing substances, the department was not required to make a particularized showing of
risk.
In re David M. (2005) 134 Cal.App.4th 822 (David M.), relied on by mother, does
not alter our conclusion. In David M., the appellate court reversed a court’s jurisdictional
order holding that the agency had not borne its burden of showing the nexus between
mother’s mental health and substance abuse issues and father’s mental health issues with
any substantial risk of serious harm to their two-year-old and two-day-old children. (Id.
at pp. 825, 832–833.) The allegations included “extensive” and “unresolved” substance
abuse. (Id. at p. 825.) Though the appellate court acknowledged the mother “continue[d]
to suffer from a substance abuse problem with marijuana in the limited respect shown on
this appellate record,” it did not find there was sufficient evidence on the record to show
a specific, defined risk of harm to the children resulting from the substance abuse. (Id. at
p. 830.) The court noted, “it [wa]s possible to identify many possible harms that could
come to pass,” but without more evidence than what was in the record before it, the
harms were speculative. (Ibid.)
David M. is distinguishable because, as we have discussed, there was evidence on
the record that mother’s substance abuse put S.B. at a substantial risk of harm. Further,
David M. was decided years before the judicially created “ ‘tender years’ ” presumption

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was established, and to that extent, we do not find it persuasive. (See Drake M., supra,
211 Cal.App.4th at p. 767.)
We conclude the evidence was sufficient to support the juvenile court’s finding
that there was a substantial risk S.B. would suffer serious harm or illness as a result of
mother’s inability to provide regular care for him due to her substance abuse. Although
mother also contends simply, without further argument, that substantial risk of harm to a
child is not presumed if a parent has mental health issues, we need not address that claim,
as a single jurisdictional finding supported by substantial evidence is sufficient to support
jurisdiction. (Drake M., supra, 211 Cal.App.4th at p. 762.)
Denial of Reunification Services
The department and the juvenile court relied on section 361.5, subdivision (b)(13)
to bypass reunification services for mother. She contends the order bypassing services is
not supported by substantial evidence. We disagree. The record contains substantial
evidence that petitioner meets the statutory criteria for bypassing services. (In re Brian
M. (2000) 82 Cal.App.4th 1398, 1401.)
Section 361.5, subdivision (b) provides, “Reunification services need not be
provided to a parent ... when the court finds, by clear and convincing evidence, any of the
following: [¶] ... [¶] (13) That the parent ... of the child has a history of extensive,
abusive, and chronic use of drugs or alcohol and has resisted prior court-ordered
treatment for this problem during a three-year period immediately prior to the filing of
the petition that brought that child to the court’s attention, or has failed or refused to
comply with a program of drug or alcohol treatment … on at least two prior occasions
....” (§ 361.5, subd. (b)(13); see also D.B. v. Superior Court (2009) 171 Cal.App.4th 197,
203.) Resistance to court-ordered treatment encompasses more than refusing to attend or
participate in a program. “The parent also can passively resist by participating in
treatment but nonetheless continuing to abuse drugs or alcohol, thus demonstrating an
inability to use the skills and behaviors taught in the program to maintain a sober life.”

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(Karen S. v. Superior Court (1999) 69 Cal.App.4th 1006, 1010.) Proof of resistance to
treatment “may come in the form of dropping out of programs, or in the form of
resumption of regular drug use after a period of sobriety.” (In re Brian M., supra, 82
Cal.App.4th at p. 1402, fn. omitted; see In re William B. (2008) 163 Cal.App.4th 1220,
1230.)
Mother claims there was no evidence to support the finding of resistance during
the statutorily required three-year-period (from November 26, 2015 through November
26, 2018) under section 361.5, subdivision (b)(13), again citing the fact that she was
sharing custody of her two older children, who felt safe with her; that this was her first
dependency case; and that she “merely” relapsed when she tested positive at the time of
her section 5150 hold.
However, the evidence before the juvenile court was as follows: When S.B. was
taken into custody on November 26, 2018, mother tested positive for methamphetamine.
According to mother, she had used controlled substances for 14 years, but had stopped
using methamphetamine two years prior. When S.B. was born in January of 2016, he
tested positive for methamphetamine. Mother’s history included a 2008 arrest and
charges for possession of a controlled substance for which she was ordered to complete a
court-ordered drug treatment program; a September 14, 2014, arrest and charges for a
DUI, alcohol/drug related; and a January 28, 2015, misdemeanor DUI conviction for
alcohol, for which she was ordered to complete a first offender alcohol program. Thus,
mother had been court-ordered to complete drug treatment on at least two prior occasions
and completed at least one court-ordered drug treatment program, and still continued to
abuse drugs.
The court properly found mother had resisted treatment within the statutory
requirements and that section 361.5, subdivision (b)(13) applied to mother.

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Juvenile Court’s Order to Suspend Visitation
Mother also argues the juvenile court abused its discretion when it suspended her
visits with S.B., citing the many visits she had with S.B. in which she claims she cared
for him, nurtured him, and that he had a positive reaction to her. Mother requests this
court to reverse this order, but we conclude that the court properly suspended mother’s
visits.
The juvenile court has the “power and responsibility” to regulate visitation
between dependent children and their parents. (In re Moriah T. (1994) 23 Cal.App.4th
1367, 1373; see also In re Jennifer G. (1990) 221 Cal.App.3d 752, 756–757.) When the
juvenile court denies reunification services, as it did in this case under section 361.5,
subdivision (b)(13), it “may continue to permit the parent to visit the child unless it finds
that visitation would be detrimental to the child.” (§ 361.5, subd. (f).)
We review a visitation order in a dependency proceeding for abuse of discretion.
(In re Brittany C. (2011) 191 Cal.App.4th 1343, 1356.) “We will not disturb the order
unless the trial court made an arbitrary, capricious, or patently absurd determination.
[Citation.]” (Ibid.)
The juvenile court suspended mother’s visitation rights at disposition. Finding
them detrimental, after mother attempted to kidnap S.B. during a visit two months earlier.
There had also been reports of mother yelling at S.B. during visits and various reports
from S.B.’s care providers that S.B. was anxious and angry surrounding visits with
mother, to the point that S.B. did not want to visit mother.
We conclude that no abuse of discretion appears in the court’s suspension of
mother’s visitation.
II. DENIAL OF SECTION 388 PETITION
Mother next contends that the juvenile court erred when it denied her November
20, 2019, petition requesting an evidentiary hearing on “issues such as the reinstatement
of visitation for the mother and for the older siblings, the return of the minor to the

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mother’s care and custody, and termination of jurisdiction.” We find no abuse of
discretion.
Background
The section 388 petition filed by mother stated that she was now able to provide a
home for S.B., she and S.B. were bonded, that S.B. would have a better opportunity to
have more love in her care, that it was in S.B.’s best interests to know that he was not left
behind, and that she had breastfed him, made him homemade food, and sheltered and
clothed him.
At the hearing on the petition, which was also a contested section 366.26 hearing,
mother testified she had raised S.B., had a bond with him, and he deserved to know that
his mother loved him and was trying to get him back by attending all court sessions and
calling every chance she got to check on him. In support of the petition, mother’s
counsel argued that mother had missed only one or two interim hearings and consistently
wanted to be reunified with S.B.
The juvenile court denied the section 388 petition, without specifically addressing
the reasons why, although it addressed, at length, its reasoning for terminating mother’s
parental rights, which included clear and convincing evidence of mother’s failure to
reunify with S.B., her continuing challenges of addiction and mental health concerns, and
the fact that her visitation had to be suspended. The order after hearing states that the
section 388 petition was denied, referencing the “transcript of hearing, 1-21-20.”
Applicable Law and Analysis
Under section 388, a parent, interested person, or the dependent child may petition
the court to change, modify, or set aside a previous order on the grounds of changed
circumstances or new evidence. (§ 388, subd. (a).) The petitioner has the burden of
showing, by a preponderance of the evidence, a change of circumstances or new
evidence, and that the proposed modification is in the child’s best interests. (In re
Michael D. (1996) 51 Cal.App.4th 1074, 1083, 1086.)

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 We review the grant or denial of a petition for modification under section 388 for
an abuse of discretion. (In re Shirley K. (2006) 140 Cal.App.4th 65, 71; In re Casey D.
(1999) 70 Cal.App.4th 38, 47.)
In evaluating whether the petitioner has carried the burden in a section 388
petition, the juvenile court considers a number of factors, including: “(1) the seriousness
of the problem which led to the dependency, and the reason for any continuation of that
problem; (2) the strength of relative bonds between the dependent children to both parent
and caretakers; and (3) the degree to which the problem may be easily removed or
ameliorated, and the degree to which it actually has been.” (In re Kimberly F. (1997) 56
Cal.App.4th 519, 531–532 (Kimberly F.).)
In addressing the first factor enunciated in Kimberly F., the seriousness of the
problem that led to the dependency proceedings, mother contends that the denial of the
section 388 petition was prejudicially predicated on the erroneous findings and orders
made at the jurisdictional and dispositional hearing. We have addressed the findings of
the jurisdictional and dispositional hearings above, in part I., and found no error, so
therefore find this factor does not weigh in mother’s favor.
As for the second Kimberly factor, the strength of the relative bond between
mother and S.B., mother recites the details of various visits with S.B. Even assuming the
“relative bond” factor under Kimberly F. weighs in mother’s favor, it is clear that the
other two factors do not.
The third factor, which looks at the degree to which the problem may be or has
been removed or ameliorated, and the degree to which it actually has been, does not
weigh in mother’s favor. Mother’s substance abuse was the primary basis for jurisdiction
in this case. Mother did not demonstrate that she made any progress in substance abuse
treatment, either in her petition or testimony.
Parent and child share a fundamental interest in reuniting up to the point at which
reunification efforts cease. (In re R.H. (2009) 170 Cal.App.4th 678, 697, disapproved on

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another point in John v. Superior Court (2016) 63 Cal.4th 91, 98–100.) However, by the
point of a section 366.26 hearing to select and implement a child’s permanent plan, the
interests of the parent and the child have diverged. (Cynthia D. v. Superior Court (1993)
5 Cal.4th 242, 254.) After reunification efforts have terminated or, as they were here,
bypassed, the court’s focus shifts from family reunification toward promoting the child’s
needs for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) At
this point, there is a rebuttable presumption continued foster care is in the child’s best
interest, and such presumption applies with even greater strength when adoption is the
permanent plan. (In re Angel B. (2002) 97 Cal.App.4th 454, 464.)
Mother failed to show that termination of jurisdiction or return of S.B. to her
custody and control would advance S.B.’s need for permanency and stability. (In re J.C.
(2014) 226 Cal.App.4th 503, 527.) It is not enough for mother to assert she and S.B.
were bonded or that she had made other progress. Nor can mother simply argue these
changes would be in S.B.’s best interests because he would benefit from being with
mother and his half siblings or other family members. She must also rebut the
presumption that continued placement with S.B.’s current caretakers was in S.B.’s best
interest. (In re Marilyn H., supra, 5 Cal.4th at p. 310.)
Mother did not do so. By the time of the section 388 petition, S.B.’s foster parents
had cared for him for almost a year. They have provided him a loving and supportive
home addressing all his needs and he is bonded to them. His foster parents planned on
adopting S.B. and providing him with a permanent home where his needs will be met
consistently.
Mother, on the other hand, has suffered from alcohol abuse problems which she
has not addressed. While she consistently visited S.B., those visits had to be suspended
when she attempted to kidnap him and she had not had any visits since the end of May
2019. Here, mother failed to make a showing that granting her section 388 petition was
in S.B.’s best interest. (See In re Jasmon O. (1994) 8 Cal.4th 398, 419 [“[W]hen a child

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has been placed in foster care because of parental neglect or incapacity, after an extended
period of foster care, it is within the court’s discretion to decide that a child’s interest in
stability has come to outweigh the natural parent’s interest in the care, custody and
companionship of the child.”].) The juvenile court did exactly what is mandated by
law—it focused on S.B.’s permanence and stability. By all accounts, S.B.’s foster
parents—his future adoptive parents—can best serve S.B.’s interests at this time.
In light of the overwhelming evidence that no changed circumstances existed and
that S.B.’s interests would not be best served by affording mother reunification services
or terminating jurisdiction, we conclude the juvenile court did not abuse its discretion
denying mother’s section 388 petition.
III. TERMINATION OF PARENTAL RIGHTS
Mother’s last contention on appeal is that the juvenile court erred in terminating
her parental rights because there was substantial evidence that she maintained regular
visitation with S.B. and that he would benefit from continuing the parent-child
relationship. We find no merit to mother’s claim.
Background
At the section 366.26 hearing, mother’s counsel argued that mother’s bond with
S.B. was “enough” to implement a plan of guardianship rather than adoption. The
department argued no such exception to adoption had been proven, as mother had not
visited S.B. for “a long time.”
The juvenile court found S.B. to be adoptable and then addressed the parent-child
relationship. In doing so, the juvenile court found that there had not been regular and
consistent visitation, and that the beneficial relationship between mother and S.B. not
sufficient to prevent adoption. The juvenile court then terminated mother’s parental
rights to S.B.

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Applicable Law and Analysis
At the permanency planning hearing, the juvenile court determines a permanent
plan for the child, and may order one of three alternative plans: adoption, guardianship,
or long-term foster care. (§ 366.26, subd. (b); see In re J.C., supra, 226 Cal.App.4th at p.
528.) “ ‘If the dependent child is adoptable, there is strong preference for adoption over
the alternative permanency plans.’ ” (In re Anthony B. (2015) 239 Cal.App.4th 389,
395.) Generally, if the court finds the child adoptable the court must terminate parental
rights. “[T]o avoid termination of parental rights and adoption, a parent has the burden of
proving, by a preponderance of the evidence, that one or more of the statutory exceptions
to termination of parental rights set forth in section 366.26, ... apply.” (In re Anthony B.,
supra, at p. 395.)
The benefit (or parental bond) exception exists where “[t]he court finds a
compelling reason for determining that termination would be detrimental to the child”
(§ 366.26, subd. (c)(1)(B)) because “[t]he parents have maintained regular visitation and
contact with the child and the child would benefit from continuing the relationship.”
(§ 366.26, subd. (c)(1)(B)(i), italics added.) In deciding whether the exception applies,
“ ‘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.’ [Citation.]” (In re J.C., supra, 226 Cal.App.4th at p. 528.) “ ‘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.’ ” (Id. at pp.
528–529.)
The factors the juvenile court considers in making this case-by-case assessment
include: “ ‘The age of the child, the portion of the child’s life spent in the parent’s
custody, the ... effect of interaction between the parent and the child, and the child’s
particular needs.’ ” (In re G.B. (2014) 227 Cal.App.4th 1147, 1166.)

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 The benefit exception “does not permit a parent who has failed to reunify with an
adoptable child to derail an adoption merely by showing the child would derive some
benefit from continuing a relationship.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339,
1348.) “It is not enough to show that the parent and child have a friendly and loving
relationship.” (In re J.C., supra, 226 Cal.App.4th at p. 529.) “ ‘ “[A] child needs at least
one parent. Where a biological parent ... is incapable of functioning in that role, the child
should be given every opportunity to bond with an individual who will assume the role of
a parent.” [Citation.]’ [Citation.]” (Ibid.)
Appellate courts are divided over the appropriate standard of review to apply to an
order determining the applicability of the beneficial parent-child relationship exception.3
Some courts have applied the substantial evidence test (e.g., In re G.B., supra, 227
Cal.App.4th at p. 1166), while others have applied the abuse of discretion standard (e.g.,
In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) Still other courts have adopted a
mixture of both standards, applying the “ ‘substantial evidence standard of review to the
factual issue of the existence of a beneficial parental relationship, and the abuse of
discretion standard to the determination of whether there is a compelling reason for
finding that termination would be detrimental to the child.’ ” (In re E.T. (2018) 31
Cal.App.5th 68, 76.)
Our conclusion in this case would be the same under any of these standards
because the practical differences between them are “not significant,” as they all give
deference to the juvenile court’s judgment. (See In re Jasmine D., supra, 78 Cal.App.4th
at p. 1351.) “ ‘[E]valuating the factual basis for an exercise of discretion is similar to
analyzing the sufficiency of the evidence for the ruling.... Broad deference must be
shown to the trial judge. The reviewing court should interfere only “ ‘if [it] find[s] that
under all the evidence, viewed most favorably in support of the trial court’s action, no

3 This issue is currently before the Supreme Court in In re Caden C. (2019) 34
Cal.App.5th 87, review granted July 24, 2019 (S255839).

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judge could reasonably have made the order that he [or she] did.’ ” ’ ” (Ibid.) Moreover,
a substantial evidence challenge to the juvenile court’s failure to find a beneficial parental
relationship cannot succeed unless the undisputed facts establish the existence of those
relationships, since such a challenge amounts to a contention that the “undisputed facts
lead to only one conclusion.” (In re I.W. (2009) 180 Cal.App.4th 1517, 1529,
disapproved on other grounds in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn.
7.; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314.)
Mother suggests she cannot be judged on her lack of visitation, as required for the
parent-child exception to apply, because visitation was improperly suspended. Again,
however, we have found the suspension of visitation to be proper and mother cannot now
claim otherwise.
In addition, mother has also failed to establish that the beneficial relationship
exception to adoption would benefit S.B. and “promote[ ] 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. (1994) 27 Cal.App.4th 567, 575, italics
added.)
Under the balancing test set forth in Autumn H., we conclude the juvenile court
acted within its discretion in terminating mother’s parental rights. S.B. was removed
from mother’s custody when he was not yet three years old. The caregivers have been
responsible for all of S.B.'s needs for almost a full year. While mother identifies ways
she was appropriate and met S.B.’s needs during the supervised visits she had, there was
no indication in the record that S.B. had trouble separating from mother at the end of
visits. S.B. did not display any unusual medical or developmental issues that mother was
particularly suited to address. It was reported that S.B.’s caregivers had a suitable home
where S.B.’s needs would be met. And while mother may have had a loving relationship
with S.B., she did not offer any testimony to suggest she could adequately provide for
S.B.’s needs.

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 Here, the juvenile court determined that mother did not satisfy her burden of proof
by a preponderance of the evidence. Based on the record before us we cannot find—as a
matter of law—that the evidence compels a contrary finding. (See In re I.W., supra, 180
Cal.App.4th at p. 1528.) Further, there is substantial evidence to support the court’s
ruling, as well as the overriding statutory preference in favor of the child’s adoption.
(See In re G.B., supra, 227 Cal.App.4th at p. 1166 [“ ‘ “it is only in an extraordinary case
that preservation of the parent’s rights will prevail over the Legislature’s preference for
adoptive placement” ’ ”].) Thus, the juvenile court properly found the benefit exception
did not apply and the court did not err in ordering the termination of mother’s parental
rights.
In addition to the beneficial parent-child relationship exception, mother invokes
the exception to adoption under section 366.3, subdivision (a), that a permanent plan of
legal guardianship provides all of the necessary and desired stability and permanence
S.B. would require. However, our reasoning upholding the juvenile court’s
determination that the beneficial parent-child exception did not apply similarly supports
the juvenile court’s decision to terminate parental rights over mother’s objection. As
discussed, the juvenile court could reasonably conclude that the benefits of adoption
outweighed the benefits of maintaining mother’s parental rights.
DISPOSITION
The orders of the juvenile court are affirmed.

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