In re A.S. CA2/6

Filed 10/27/20 In re A.S. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

In re A.S. et al., Persons 2d Juv. No. B304542
Coming Under the Juvenile (Super. Ct. No. 18JD-00213)
Court Law. (San Luis Obispo County)

SAN LUIS OBISPO COUNTY
DEPARTMENT OF SOCIAL
SERVICES,

Plaintiff and Respondent,

v.

M.S.,

Defendant and Appellant.

M.S. (Mother) appeals from the juvenile court’s
orders (1) denying her petition to change the order terminating
her reunification services and reducing her visits with her
children, A.S., E.M., and C.T. (Welf. & Inst. Code,1 § 388), (2)
selecting a permanent plan of guardianship for A.S. (§ 366.26),
and (3) terminating her parental rights and selecting an adoption
plan for C.T. (ibid.). We affirm.
FACTUAL AND PROCEDURAL HISTORY
In June 2018, San Luis Obispo County Department of
Social Services (the Department) filed a petition alleging that
Mother failed to protect her children. (§ 300, subd. (b).)2 The
petition alleged that A.S. said that Mother “used to pull her hair,”
“pinch her,” and “used to hit [her and E.M.] worse than now.”
E.M. said Mother “hit him . . . with a hanger and it broke on
him.” Mother tested positive for amphetamine and THC and was
“verbally aggressive” towards staff at C.T.’s birth. The hospital
reported that during her pregnancy, Mother requested narcotics
for her asthma attacks. When the hospital refused, Mother
became “physically assaultive toward” hospital staff and had
“aggressive outbursts and started throwing things at the charge
nurse.” After C.T.’s birth, Mother would “vacillate from angry
and aggressively yelling to calm” and could not “‘manage her
emotions.’”
The petition also alleged the children suffered or
were at risk of suffering serious emotional damage due to
Mother’s conduct. (§ 300, subd. (c).) The petition alleged that
A.S. was suicidal and that she stated “she would not be safe if she
was to go home with her mother.” A.S. said she was “very
depressed” and “‘would harm [herself]’” if she was returned to

1Further unspecified statutory references are to the
Welfare and Institutions Code.

2 The children’s fathers are not parties to this appeal.

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Mother’s care. A.S. said that Mother “‘curses at [her]’” and tells
her that she “‘doesn’t want [her].’” A.S. and E.M. reported that
Mother isolated them from their extended family and did not
allow them to speak to law enforcement, school personnel, or
social workers about their safety.
Mother’s prior child welfare history included 21
referrals from January 2008 to June 2018; two of which were
substantiated. In November 2010, methamphetamine was found
in the home “in easy reach” of E.M. Mother participated in a one-
year voluntary child welfare case, including drug and alcohol
education classes, mental health counseling, and family studies
classes. In March 2016, the Department received a referral
alleging general neglect of A.S. and E.M. Mother appeared
“depressed,” slept “all the time,” did not “feed [her] children
appropriately,” and used marijuana regularly. Mother did not
attend to E.M.’s medical or educational needs, and A.S. stated
she did not want to live with Mother.
Jurisdiction/Disposition Report and Hearing
In the jurisdiction/disposition addendum report, the
Department noted that Mother “freely admitted that she has a
substance abuse problem and she has begun addressing her
mental health issues as well.” Mother began a “[dual] diagnosis
program with both Drug and Alcohol Services (DAS) and
Behavioral Health, as well as engaging in other services provided
to her.”
At the combined hearing, the juvenile court sustained
the third amended petition and declared the three children
dependents of the court. It ordered the children to remain in the
custody of their maternal aunt and uncle. It ordered
reunification services for Mother and supervised visits of two

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hours per week subject to the Department’s discretion to increase
visits.
Three-Month Interim Report and Hearing
The three-month interim report stated Mother was
not complying with her case plan. During a meeting with a social
worker and DAS counselors, Mother denied having mental health
issues and said she was not taking her medication. The report
noted that Mother completed parenting education classes, but
parenting guidance sessions were discontinued because of her
“‘lack of cooperation and inability to accept any feedback that was
given.’” The report stated Mother participated in DAS group
sessions, but had a “difficult time getting along with her [DAS]
counselors.” Mother also refused to participate in a treatment
program, until she was given a warning.
At the three-month review hearing, Mother reported
that she recently found her own housing, full-time employment,
and a mental health and drug and alcohol counselor.
Six-Month Report and Hearing
In the six-month report, the Department
recommended the children remain in out-of-home care and
continued family reunification services for Mother. Mother was
in compliance with her case plan; “[h]owever, she has often
struggled with receiving feedback and in working with service
providers in a meaningful way.” The report observed Mother
“made a lot of progress” since her three-month report, but it was
“difficult to assess how much of this progress [could] be
attributed to new skills being developed and how much [was] the
result of her simply being removed from her triggers.”

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 At the six-month hearing, the court continued
Mother’s reunification services and gave the Department
discretion to allow unsupervised visits.
Twelve-Month Report and Hearing
In the twelve-month report, the Department
recommended the court terminate reunification services for
Mother with respect to all three children.
The report stated that after the six-month hearing,
Mother “began to struggle.” In January 2019, she canceled three
visits and asked to reschedule one visit. She was “resistant” to
drug and alcohol treatment. The Department informed her that
in order to approve unsupervised visits, it needed to assess her
ability to manage her anger, and group sessions would be an
opportunity to do so. Mother agreed to attend group sessions, but
she did not appear on the first day. Mother also missed four drug
tests.
The next month, Mother canceled four visits. Her
DAS counselor reported she had not seen Mother for a month and
that Mother was at risk of being discharged from DAS.
In March, Mother was late to two visits. In April,
Mother admitted a relapse and was late to multiple visits. In
May, A.S. reported that she had an unauthorized visit with
Mother at her grandmother’s house. Mother told A.S. to “keep it
a secret.”
The report stated that overall, Mother “has failed to
accept responsibility or to take ownership of her behaviors and
how these behaviors impact her children. As a result, she has not
been able to engage with her case plan services in a truly
meaningful way.” The report further noted that Mother “has not
demonstrated that she can manage her needs, as well as the

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special needs of her children,” and that her consistency with
visits was “questionable.”
The report stated that the “prognosis for any of these
children returning home to any parent is not likely. . . If the
children were to go home, they would be at risk of having their
mental health and educational needs neglected.”
The court terminated Mother’s reunification services.
The court found Mother’s “efforts at this point have come a little
late for [it] to make the necessary findings for the extension of
reunification services.” The court ordered supervised visits of two
hours per week.
The Department’s Request to Change Visitation
A month later, the Department filed a section 388
petition to change the court’s previous order to reduce visits to
once a month for one hour per child. The Department said the
reduction “will allow the children to focus on their lives and
receive fewer confusing messages that put them in the middle of
their mother’s problematic life circumstances.”
The Department reported that Mother brought an
unvaccinated puppy without permission to a visit with her
children. The Department also discovered Mother had been
texting A.S. since July. During another visit, Mother told her
children that she was “‘doing everything [she was] supposed to be
doing so that [they could] come home in November.’” The
caregiver reported that A.S. and E.M. began to “experience some
behaviors” and that they “both seem to think that they are going
back” to Mother in November. The Department stated that the
children’s “behaviors are increasing” and that their “ongoing
contact with their mother is undermining the stability of their
placement.” Mother did not take responsibility for her actions.

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 After a contested hearing, the juvenile court reduced
supervised visits to once per month for one hour subject to the
Department’s discretion to increase visits.
Section 366.26 Report and E.M.’s 18-month Report
In the section 366.26 report, the Department
recommended a permanent plan of guardianship for A.S., who
was living with her maternal grandmother. The Department
recommended that Mother’s parental rights to C.T. be terminated
and that C.T. be found adoptable.
The section 366.26 report stated that A.S. “made it
abundantly clear that she does not want to be adopted.” A.S.
wanted to return to Mother’s home, but “her feelings readily
change in regard to her mother and other adults in her life.”
With respect to E.M., the Department filed an 18-month status
report which stated that his father was making progress on his
case plan. It recommended the court order that E.M. remain in
the care of his father with six months of family maintenance
services. With respect to C.T., who had lived with his aunt and
uncle since birth, “his circumstances in regards to permanency
[are] clear.”
Mother’s Request to Change Visitation and Services
About three months after her services were
terminated, Mother filed section 388 petitions to change the
court’s orders (1) terminating her reunification services and (2)
reducing her visits to once a month, for each of her children.
Mother requested an order returning A.S. and C.T. to her care or
an order reinstating her reunification services and allowing
unsupervised visits of at least once per week for four hours. In
her petition for E.M., Mother requested an order for family
maintenance services or an order reinstating her reunification

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services and allowing unsupervised visits of at least once per
week for four hours.
Mother presented evidence to show that she
“consistently and actively participated” in her case plan even
after her services were terminated. Mother stated that she
continued to participate in mental health services, and attached a
letter from her counselor. Mother attached a certificate of
attendance and a letter from her parenting coach verifying her
completion of parenting courses. Mother continued to participate
in substance abuse treatment and attached a letter from her DAS
counselor.
Mother claimed the requested change would benefit
her children. She stated she was meeting all service
requirements and was consistent with her visits. She had
obtained stable housing, employment, and transportation. She
also established a support system. Mother participated in family
therapy, where she was able to express her remorse and tell her
children “they were not at fault.” She obtained information to
help her children with their special needs. She alleged that A.S.
and E.M. expressed their wish to be with her.
Mother stated she was living with her boyfriend in
Bakersfield and was driving over 100 miles to attend visits with
her children. She claimed she was managing her mental health,
had formed a relapse prevention plan, and was able to manage
her schedule better.
The Department recommended that the petitions be
denied. It reported that Mother had apparently rescinded her
consent to the release of information regarding her mental health
and drug and alcohol services. The Department said it was
“difficult to ascertain how much stability” Mother attained when

8
she was working alone without her children. Moreover, despite
her recent progress, Mother “has not yet demonstrated her ability
to stay clean and sober, establish a job and residence, or be able
to care for one or more of her children on a consistent basis.” It
also noted the “chaos and confusion between the children and
their placements lessened when visitation was changed to once a
month.”
E.M. was reunified with his father and they were
receiving family maintenance services. E.M.’s aggressive
behaviors had lessened, and he was doing well in school. The
father was meeting E.M.’s needs. The Department stated that
reinstating Mother’s services or increasing visits “would likely
cause confusion for [E.M.] at this point.”
The Department stated C.T. “deserves the stability
and highest level of permanency through adoption.” The
Department found that none of the exceptions to adoption apply.
Contested Sections 366.26 and 388 Hearing
In January 2020, the juvenile court held a combined
sections 366.26 and 388 hearing. The court denied Mother’s
section 388 petition. The court acknowledged Mother’s recent
progress, but found “these are changing circumstances, and
they’re not changed.”
The court adopted the Department’s recommendation
for the permanent plan for A.S. It found that placement with the
maternal grandmother was appropriate with a permanent plan of
guardianship. Mother’s parental rights were not terminated.
With respect to E.M., the court noted he was in
family maintenance with his father, and Mother’s parental rights
were not terminated.

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 The court also adopted the Department’s
recommendation of terminating Mother’s parental rights to C.T.
The court reasoned that a “young baby with special needs . . . also
needs permanency. The fact is that [C.T.] has been with [his
aunt] really from the beginning.”
DISCUSSION
Mother’s Section 388 Petition
Mother contends the juvenile court erred when it
denied her petition to change the order terminating her
reunification services and reducing her visitation schedule with
her children. We disagree.
“A juvenile court order may be changed, modified or
set aside under section 388 if the petitioner establishes by a
preponderance of the evidence that (1) new evidence or changed
circumstances exist and (2) the proposed change would promote
the best interests of the child. [Citation.]” (In re Zachary G.
(1999) 77 Cal.App.4th 799, 806.) We review for abuse of
discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
When reunification services have been terminated
and a section 366.26 hearing is set, the focus of the case shifts
from the parents’ interest in the care, custody, and
companionship of the child to the needs of the child for
permanency and stability. (In re Stephanie M., supra, 7 Cal.4th
at p. 317.) The child’s best interests “are not to further delay
permanency and stability in favor of rewarding” the parent for
their “hard work and efforts to reunify.” (In re J.C. (2014) 226
Cal.App.4th 503, 527.) To warrant relief under section 388, the
evidence of changed circumstances “must be of such significant
nature that it requires a setting aside or modification of the
challenged prior order.” (Ansley v. Superior Court (1986) 185

10
Cal.App.3d 477, 485; see In re Jamika W. (1997) 54 Cal.App.4th
1446, 1451.) “A petition which alleges merely changing
circumstances and would mean delaying the selection of a
permanent home for a child to see if a parent, who has repeatedly
failed to reunify with the child, might be able to reunify at some
future point, does not promote stability for the child or the child’s
best interests.” (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) In
assessing the petition, the juvenile court may consider the entire
history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181,
189.)
The juvenile court did not abuse its discretion.
Although she made improvements in the five months after her
services were terminated, Mother showed that her circumstances
were “merely changing,” and not changed. (In re Casey D., supra,
70 Cal.App.4th at p. 47.) Throughout her dependency cases,
Mother struggled with managing her services and being
consistent with her visits. Her three-month report stated she
was not complying with her case plan. She denied having mental
health issues and refused to participate in some services.
By the six-month hearing, Mother made
improvements, but still had issues “receiving feedback and in
working with service providers in a meaningful way.” Mother
then “began to struggle” with meeting her case plan goals shortly
after the six-month hearing. Mother refused to participate in
services, such as group sessions, missed several drug tests, and
canceled or was late to multiple visits. In April 2019, she
admitted she relapsed. The twelve-month report stated that
Mother struggled with time management, resource management,
and accountability.

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 Mother argues she presented evidence that she
“made a substantial change of circumstances in her lifestyle
including remediation of the issues that led to the removal of the
children.” However, Mother had a history of having periods of
stability that she could not maintain. And as the Department
noted, Mother had yet to demonstrate “her ability to stay clean
and sober, establish a job and residence, or be able to care for one
or more of her children on a consistent basis.”
Moreover, there was no evidence of Mother’s ability
to maintain her stability if visits were increased. As the
Department noted, it was “difficult to ascertain” Mother’s level of
stability that she attained while working alone and without her
children, especially considering her prior struggles with time and
resource management. This difficulty in monitoring Mother’s
progress was compounded by her refusal to consent to the release
of information from her mental health and drug treatment
providers.
It was also unknown how Mother would maintain an
increased visitation schedule, given that she had moved to
Bakersfield. Although Mother indicated she would find a home
in San Luis Obispo County, she did not say how or when.
Mother also did not show that continuing her services
or increasing visits would promote the best interests of her
children. The evidence shows the children improved after visits
were reduced to once a month, and the children were in stable
environments, in which their needs were met. Further delays to
allow Mother yet another chance to reunify in the future would
not be in their best interests. There was no abuse of discretion.3

3 Mother argues the court’s error in denying her section 388
petition requires reversal of the order terminating her parental

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 Beneficial Relationship Exception
Mother contends the trial court erred when it
terminated her parental rights to C.T. because she established
the beneficial relationship exception applied. Her contention
lacks merit.
A juvenile court should not terminate parental rights
if it “finds a compelling reason for determining that termination
would be detrimental to the child.” (§ 366.26, subd. (c)(1)(B).)
Termination will be detrimental if there is a beneficial
relationship between a parent and child. (In re Bailey J. (2010)
189 Cal.App.4th 1308, 1314; see § 366.26, subd. (c)(1)(B)(i).) We
review the court’s determination for substantial evidence. (In re
E.T. (2018) 31 Cal.App.5th 68, 76.)
To show the existence of a beneficial relationship, a
parent must prove that: (1) they have “‘maintained regular
visitation and contact with the child,’” and (2) “‘the child would
benefit from continuing the relationship.’ [Citations.]” (In re E.T.,
supra, 31 Cal.App.5th at p. 76.) A parent who has not reunified
with an adoptable child may not derail an adoption merely by
showing the child would derive some benefit from continuing a
relationship maintained during periods of visitation with the
parent, or that the parental relationship may be beneficial to the
child only to some degree. (In re Jasmine D. (2000) 78
Cal.App.4th 1339, 1348.) The parent bears the burden to
establish that “the relationship promotes the well-being of the
child to such a degree as to outweigh the well-being the child
would gain in a permanent home with new, adoptive parents.”

rights to C.T. Because we conclude the juvenile court did not err
in denying the section 388 petition, we need not address this
argument.

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(In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The exception
applies only in extraordinary cases, because the permanent plan
hearing occurs after the court has found the parent is unable to
meet the child’s needs. (In re Jasmine D., supra, 78 Cal.App.4th
at p. 1350.)
Mother did not show that the benefits to C.T. of
maintaining a relationship with her would outweigh the benefits
of adoption. It is true that Mother had positive visits with C.T.
and C.T. “enjoys his time” with her. But, frequent and loving
contact, an emotional bond, or pleasant visits are insufficient to
establish a beneficial relationship. (In re Derek W. (1999) 73
Cal.App.4th 823, 827.) Mother must show that she occupied a
“‘parental role’” in C.T.’s life. (Ibid.) The evidence does not prove
this. C.T. had lived with his maternal aunt and uncle since his
birth, and his “primary bond” was with them. His aunt and uncle
provided stability, safety, and comfort to C.T., and he was
“strongly attached” to them.
Moreover, Mother did not show that termination of
her parental rights would be detrimental to C.T. Substantial
evidence supports the court’s finding that the beneficial
relationship exception did not apply.
DISPOSITION
The orders (denying Mother’s section 388 petition,
selecting a permanent plan of guardianship for A.S., and
terminating her parental rights to C.T.) are affirmed.
NOT TO BE PUBLISHED.

TANGEMAN, J.

We concur:
GILBERT, P. J. PERREN, J.

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 Charles S. Crandall, Judge

Superior Court County of San Luis Obispo

______________________________

Judy Weissberg-Ortiz, under appointment by the
Court of Appeal, for Defendant and Appellant.
Rita L. Neal, County Counsel, Chelsea K. Kuhns,
Deputy County Counsel, for Plaintiff and Respondent.