In re M v. CA4/2

Filed 3/23/21 In re M.V. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 M.V., a Person Coming Under the
Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES, E075936

Plaintiff and Respondent, (Super.Ct.No. RIJ1800355)

v. OPINION

D.V.,

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Cheryl C. Murphy, Judge.

Affirmed.

Marissa Coffey, under appointment by the Court of Appeal, for Defendant and

Appellant.

Gregory P. Priamos, County Counsel, James E. Brown, Anna M. Marchand and

Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.

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 On August 25, 2020, the juvenile court denied D.V.’s (mother) modification

petition and terminated parental rights to her son under Welfare and Institutions Code1

section 366.26. She appeals, contending the court erred by (1) denying her section 388

petition to reinstate reunification services, (2) finding the beneficial parent-child

relationship exception to adoption did not apply, and (3) refusing to order guardianship as

the permanent plan. We reject her contentions and affirm.

I. PROCEDURAL BACKGROUND AND FACTS

A. Detention.

On May 28, 2018, M.V. (the child) came to the attention of the Riverside County

Department of Public Social Services (DPSS) when mother’s cousin reported mother was

not bonding with the child, holding him, or feeding him. Mother had gone to the hospital

asking for help. Following an evaluation, she was placed on a section 51502 hold and

transported to emergency treatment services. A nurse reported that because mother was

hearing voices telling her to harm herself and her child, she was assigned a one-on-one

staff member.

The social worker spoke to the cousin, who reported mother had been living with

her since November 2017. She stated mother was “usually very calm, however recently

she has been having outbursts of yelling.” The last time mother exhibited these outbursts

1 Unless otherwise indicated, all additional statutory references are to the Welfare
and Institutions Code.

2 Section 5150 allows for the involuntary hospitalization of a person who “as a
result of a mental health disorder, is a danger to others, or to himself or herself.” (§ 5150,
subd. (a).)

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was two years earlier, upon the death of her mother. The cousin was providing the

majority of care for the child, but she was no longer able to do so, no other relative

wanted custody of him, and mother was no longer welcome in the cousin’s home.

The social worker spoke with mother, who showed no concern for the child’s care

or needs. She had difficulty concentrating on the questions being asked, as well as

making decisions. The mother spoke slowly, had a “flat affect,” and stated she had not

been sleeping. She identified the father as Mr. P. but reported she was never in a

relationship with him. Mother explained her presence at the hospital was because she

could not sleep, she was yelling that she wanted to give away her baby, and she was

hearing voices telling her to commit suicide and hurt her baby.

On May 30, 2018, DPSS filed a dependency petition under section 300,

subdivisions (b)(1) (failure to protect) and (g) (no provision for support). The petition

alleged mother suffered from unresolved mental health issues resulting in numerous

psychiatric hospitalizations, mother and father engaged in domestic violence, and neither

was willing or able to provide care and support for the child. The child was detained in a

foster home, and a jurisdictional hearing was set.

B. Jurisdiction/Disposition Reports and Hearing.

According to the jurisdiction/disposition report filed June 19, 2018, and the

addendums filed July 20, and August 23, 2018, mother suffered from a learning disability

and had been in special education since the second grade. When she was 13 years old, she

began hearing voices telling her to hurt herself. She started therapy and was given

medication; however, there were periods when she was hospitalized or had suicidal

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ideations. When she was 22 years old, her mother passed away and the voices returned,

resulting in her being diagnosed with depression and being sent to a psychiatric hospital.

At a residential treatment facility, mother was diagnosed with “psychosis unspecified.”

The social worker reported that mother appears to be managing her mental health

symptoms as she presents with appropriate affect and is joyful when she interacts with her

child. During the supervised visits, mother fed, rocked, cradled, and talked to the child. A

paternity test revealed that Mr. P. was not the biological father. On August 8, 2018, the

child was placed with a nonrelative extended family member. The next day, mother

reported she forgot to refill her prescription, was out of medication, and was at risk of

being homeless.

On August 28, 2018, the juvenile court dismissed Mr. P. from the petition;

determined the child came under section 300, subdivision (b)(1); declared him a

dependent of the court; removed him from mother’s care; and ordered reunification

services and supervised visitation. That same day, DPSS filed an amended petition

reflecting the court’s findings and actions.

C. Six-month Status Review Report and Hearing.

According to the six-month status review report filed February 15, 2019, mother

had been living with the maternal grandfather and his female friend since August 2018.

The home was described as a trailer. It was small and had water damage, as well as

damage caused by the maternal grandfather’s attempt to make it a “two story home.”

Mother was unemployed, unable to obtain supplemental security income, and she only

took her psychotropic medication on an “as needed” basis. Mother was participating in

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visitation and her services; however, she requested more time to complete her case plan

because it takes her longer to complete work assignments since she has to review the

material a few times in order to comprehend clearly, and she needed to find housing and

employment. The social worker opined that mother’s cognitive ability may be in the

borderline range, and noted that mother has demonstrated tremendous effort to do what

she can in order to comply with visitation and her case plan, but she needed more time.

The child was doing well in his placement, and his caregivers expressed their interest in

adopting him.

On February 28, 2019, the juvenile court found that mother was participating and

progressing in her case plan, and there was a substantial probability the child might be

returned to her care within the next six months. Thus, the court continued reunification

services and ordered DPSS to provide mother with financial and nonfinancial assistance

for housing.

D. Twelve-month Status Review Reports and Contested Hearing.

According to the 12-month status review report filed July 19, 2019, DPSS

recommended the juvenile court terminate reunification services, reduce visitation to

once a month, and set a section 366.26 hearing. Mother continued to suffer from

depression, which required medication. She was seeing a psychiatrist and living with the

maternal grandfather, but she occasionally stayed with a friend when she was visiting the

child. Mother remained unemployed and relied on the maternal grandfather for financial

assistance.

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 The child had developed a very strong emotional attachment to his foster mother

and was thriving with his caregivers, who regarded him as an integral member of their

family. Mother continued to visit him; however, on occasion she would wonder off and

leave the child alone on a swing or in a sandbox until she was reminded not to leave him

alone. While mother continued to express a desire to reunify with her child, she stated

she needed her family and father’s family to care about him and her more.

The social worker stated that mother struggles greatly to minimally meet her own

needs for shelter, food, and clothing, and mother appears overwhelmed with the pressures

and responsibilities of simply caring for herself and could not appropriately care for a

child. The social worker therefore opined that mother was not ready to handle the

responsibilities of caring for a child, and she simply does not currently possess the

capacity to effectively meet the needs of the child or to keep him safe from harm. The

foster mother helped mother on numerous occasions (by providing transportation and

food) and stated that if she adopts the child, she would strongly consider allowing mother

to be a part of his life. On July 30, 2019, mother requested a contested status review

hearing.

In the addendum report filed August 7, 2019, DPSS conveyed that mother had

completed a parenting class, was learning about personal hygiene and stress management,

and was consistently visiting the child; however, she had not progressed to unsupervised

visitation. On August 1, 2019, mother’s cousin stated that mother could live with her,

and she was “somewhat certain” she could help mother find a job. DPSS recommended

continuing reunification services and liberalizing visitation. On August 13, 2019, the

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juvenile court ordered reunification services be continued and set an 18-month status

review hearing.

E. Eighteen-month Status Review Reports and Hearing.

According to the 18-month status review report filed November 22, 2019, and

addendum report filed January 8, 2020, DPSS once more recommended the juvenile

court terminate reunification services, reduce visitation to once a month, and set a

section 366.26 hearing. On August 15, 2019, mother moved in with her cousin and was

working part-time at a pizza restaurant. Mother continued to take antidepressant

medication; however, she disclosed that when she ran out of her medicine, she heard

voices telling her to kill the child and to commit suicide, but the voices stopped when she

resumed taking her medicine. Mother never completed her anger management classes.

The child continued to thrive in his placement, his caregivers remained committed

to adopting him, and DPSS reported it would be emotionally traumatic to move him out

of their home. Although mother loved and consistently visited the child, the social

worker noticed that she was “extremely passive” with him. For example, she seemed

detached “emotionally and physically” from him, was slow in responding to his attempt

to gain her attention, and rarely if ever redirected him, even when he was doing

potentially dangerous things. Thus, the social worker opined that due to her diminished

ability to recognize environmental threats and danger, mother would place the child at

risk of harm if she were to be alone in the community with him. In December 2019,

mother informed the social worker that she was four months pregnant, worked full-time

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at a hospital as a housekeeper, continued to take her medication, and expressed a “certain

level of stress over all of her obligations.”

On January 14, 2020, the juvenile court found that mother had failed to participate

regularly and make substantive progress in her case plan, and there was no substantial

probability of returning the child to her after another six months of services. Thus, the

court terminated services and set a section 366.26 hearing.

F. Section 366.26 reports.

According to the section 366.36 report filed April 30, 2020, and addendum reports

filed July 13 and August 20, 2020, the child (who was then two years old) had only been

in mother’s custody for approximately the first 17 days of his life. On March 27, 2020,

mother gave birth to another child (M.T.) and, less than one month later, she told the

social worker that she is incapable of appropriately caring for her newborn. M.T. was

detained on May 25, 2020, pursuant to section 300, subdivisions (b), (g), and (j), and is

not a party to this appeal.

In-person visitation with the child ceased in March 2020 because of the

Governor’s stay at home order for the Covid-19 pandemic; however, telephonic/video

visitation continued. By July 2020, mother’s visits were inconsistent (she did

communicate with the child on May 4 & July 2); she explained that she sometimes

simply forgets to visit the child via video chat. She also refused to provide DPSS with

her current address. The social worker found mother’s behavior following the birth of

both of her children similar and opined that mother requires a conservator to assist and

guide her with the daily tasks of living, in order that she not place herself in peril or

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danger. The social worker later added that mother appears to have a very low tolerance

for stress and frustration. The child was described as very loving and healthy, and his

caregivers remained willing to adopt him and provide a permanent and safe home for

him.

G. Sections 388 and 366.26 hearing.

On August 25, 2020, mother made an oral motion pursuant to section 388, and

requested another six months of services. Mother’s counsel stated the motion was based

on the fact that she provided this information regarding her psychiatric appointment, the

medications she is taking, the fact that she will be working with a clinic regarding mental

health services, the fact that she is working at a hospital, and the fact that she now has a

new and stable residence.

Mother testified that she had been renting a room for $500 a month. She was

working full-time at a hospital as a housekeeper. She was medication compliant, felt

good, and no longer had anxiety attacks. She continued to see a therapist, a counselor,

and a psychiatrist. Because of Covid-19, her visits with the child were telephonic

because he does not stay still for video visits. She testified there is a bond between her

and the child because she knows he loves her, and she loves him. She believed that she

was in a position to care for him and she had family support, as well as support from a

couple of people from her church.

Mother’s counsel argued for another six months of services to allow for a clearer

picture of her ability to regain custody of the child. The child’s counsel acknowledged

that mother’s ability to care for herself is improving, but the ability to care for her child is

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not. Counsel therefore asked the juvenile court to deny the 388 because mother has not

shown changed circumstances, and she has not shown that it would be in the best interest

of the child. DPSS concurred. The juvenile court denied the section 388 request,

explaining there was no real evidence to suggest that there is any change of

circumstances, and it would not be in the best interest of the child to provide additional

services to mother.

Mother’s counsel then argued the parental benefit exception set forth in

section 366.26, subdivision (c)(1)(B)(i), applied and asked that legal guardianship be

ordered as the appropriate permanent plan for the child. Counsel also requested mother’s

visitation remain consistent because of the strong bond she shared with the child. The

child’s counsel urged the juvenile court to follow the recommendations of DPSS, terminate

parental rights, and select adoption as the permanent plan. However, she had no objection

to the social worker talking to the caregivers about postadoption visitation. Again, DPSS

concurred. The court found the beneficial exception to adoption did not apply, terminated

parental rights, and ordered adoption as the permanent placement plan. The court directed

DPSS to have a social worker discuss with the current caregiver the possibility of having

future contact with mother and the minor child should that be found to be appropriate.

II. DISCUSSION

A. Denial of the Oral Section 388 Petition.

Mother argues the juvenile court abused its discretion by denying her request for

additional services pursuant to section 388. We disagree.

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 Section 388 is a general provision permitting the juvenile court, “upon grounds of

change of circumstance or new evidence, . . . to change, modify, or set aside any order of

court previously made or to terminate the jurisdiction of the court.” (§ 388, subd. (a)(1).)

The statute allows the modification of a prior order only when the petitioner establishes

by a preponderance of the evidence that (1) changed circumstances or new evidence

exists, and (2) the proposed modification would promote the best interests of the child.

(In re L.S. (2014) 230 Cal.App.4th 1183, 1193; In re Y.M. (2012) 207 Cal.App.4th 892,

919-920.) A parent seeking relief under section 388 “must show changed, not changing,

circumstances. [Citation.] The change of circumstances or new evidence ‘must be of

such significant nature that it requires a setting aside or modification of the challenged

prior order.’” (In re Mickel O. (2011) 197 Cal.App.4th 586, 615.)

Moreover, “‘[i]t is not enough for a parent to show just a genuine change of

circumstances under the statute. The parent must show that the undoing of the prior order

would be in the best interests of the child.’” (In re S.J. (2008) 167 Cal.App.4th 953,

960.) A parent requesting an order for reunification services, after they have been

terminated, has the burden of proving that the benefit to the child of reinstating services

outweighs the benefit the child would derive from the stability of a permanent placement.

(In re Angel B. (2002) 97 Cal.App.4th 454, 464.) We review the ruling on a section 388

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petition for an abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)3

Here, mother argues that she showed a change in her circumstances as evidenced

by (1) participating in reunification services despite the fact they were terminated in

January 2020, (2) obtaining a place to live (albeit beginning a few weeks prior to the

section 366.26 hearing), (3) maintaining full-time employment, (4) complying with her

medication, (5) adhering to her psychiatric schedules, (6) being emotional stable, and

(7) obtaining support from her family and friends from church. While we commend

mother for her continued efforts to attain mental and financial stability, the record

demonstrates that she is neither stable nor ready to parent a child. While she attended her

psychiatric appointments and was willing to participate in other services, she offered no

evidence she was currently participating in parenting classes or counseling services.4

3 In her opening brief, mother noted reviewing courts have evaluated a
section 388 petition according to the factors set forth in In re Kimberly F. (1997)
56 Cal.App.4th 519, 530-532. She also noted that the Kimberly F. approach is not
universally accepted for all cases. In fact, the very same court that decided Kimberly F.
rejected the application of those factors when the juvenile court has terminated services
and set a section 366.26 hearing for the selection of a permanent plan. “[W]e decline to
apply the Kimberly F. factors if for no other reason than they do not take into account the
Supreme Court’s analysis in Stephanie M., applicable after reunification efforts have
been terminated. As stated by one treatise, ‘In such circumstances, the approach of the
court in the case of . . . Kimberly F. . . . may not be appropriate since it fails to give full
consideration to this shift in focus.’ [Citation.] We instead follow the direction of our
Supreme Court, holding that after reunification services have terminated, a parent’s
petition for either an order returning custody or reopening reunification efforts must
establish how such a change will advance the child’s need for permanency and stability.”
(In re J.C. (2014) 226 Cal.App.4th 503, 527.) We too decline to apply the Kimberly F.
factors in this case.

4 According to mother, she went to her “old therapist” because no one had called
her to make an appointment with a counselor at “another facility.”

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While she was currently compliant with her medication, the record shows that previously

she was compliant until she forgot to have her prescription refilled. Also, mother

previously obtained a place to live (with her cousin) but was unable to maintain it. While

mother’s prognosis appears favorable, we may not discount the social worker’s

observations that mother has a low tolerance for stress and frustration; she remained

unaware of subtle environmental dangers that posed a risk to the child; she would rarely,

if ever, redirect the child when he was doing potentially dangerous things; and her second

child was detained on May 25, 2020, less than two months after his birth. At most,

mother has shown that her circumstances were changing, but had not changed. (In re

Ernesto R. (2014) 230 Cal.App.4th 219, 223 [“[T]he change in circumstances must be

substantial.”].)

Furthermore, mother is unable to demonstrate that a new order was in the best

interests of the child. We do not doubt mother’s enormous and unconditional love for her

child and her constant commitment to spending time with him. However, we do not

agree that providing her with another six months of reunification services in order to

allow a clearer picture of her ability to regain custody would be in the child’s best

interests. Mother fails to show how her request would advance his need for permanency

and stability. The child was removed from her care 17 days after his birth, and by the

time of the sections 388/366.26 hearing, he was two years three months old. Mother had

received 18 months of services but failed to reunify with him, let alone progress to

unsupervised visitation. During this same time, the child had bonded with his caregivers

and their extended family members, and he was thriving in their home. His caregivers

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loved him and provided for all his needs. The child looked to his caregivers and their

family members for comfort and when he wanted to be held. Moreover, “[a]fter the

termination of reunification services, the parents’ interest in the care, custody and

companionship of the child [is] no longer paramount. Rather, at this point ‘the focus

shifts to the needs of the child for permanency and stability.’” (In re Stephanie M.,

supra, 7 Cal.4th at p. 317.) The court here recognized this shift of focus in determining

the ultimate question—what are the best interests of the child?

In view of the circumstances, it is difficult to see how reinstating mother’s services

would be in the child’s best interests. He was bonded to his caregivers who wanted to

adopt him. Mother’s compliance with her case plan was ongoing, and she was unable to

show how reinstating reunification services outweighed the benefit the child would

derive from the stability and security of a permanent home. Under these circumstances,

the juvenile court did not abuse its discretion in denying mother’s section 388 petition.

B. Termination of Parental Rights.

Mother argues the juvenile court erred in failing to apply the beneficial parental

relationship exception to the termination of parental rights under section 366.26,

subdivision (c)(1)(B)(i). We disagree.

At a permanency planning hearing, once the juvenile court finds by clear and

convincing evidence that a child is likely to be adopted within a reasonable time, the

court is required to terminate parental rights and select adoption as the permanent plan,

unless the parent shows termination of parental rights would be detrimental to the child

under one of several statutory exceptions. (In re Bailey J. (2010) 189 Cal.App.4th 1308,

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1314.) One exception is the beneficial parent-child relationship exception. (§ 366.26,

subd. (c)(1)(B)(i).)

“‘To trigger the application of the parental relationship exception, the parent must

show the parent-child relationship is sufficiently strong that the child would suffer

detriment from its termination.’ [Citation.] A beneficial relationship ‘is one that

“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.” [Citation.] The

existence of this relationship is determined by “[t]he 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.”’” (In re Marcelo B. (2012)

209 Cal.App.4th 635, 643.) Thus, the nature of the relationship between the parent and

child is crucial in determining the existence of a beneficial parent-child relationship

exception; it is not sufficient to show that the child derives some benefit from the

relationship or shares some “‘emotional bond’” with the parent. (In re K.P. (2012)

203 Cal.App.4th 614, 621.) “To overcome the preference for adoption and avoid

termination of the natural parent’s rights, the parent must show that 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 Angel B. (2002)

97 Cal.App.4th 454, 466.) In other words, the parent must show he or she occupies a

“‘parental role’” in the child’s life. (In re K.P., at p. 621.)

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 Appellate courts are divided over the appropriate standard of review for an order

determining the applicability of the beneficial parent-child relationship exception.5 We

review the juvenile court’s findings on the existence of the relationship for substantial

evidence. (In re Bailey J., supra, 189 Cal.App.4th at p. 1314.) Whether “the relationship

is a ‘compelling reason’ for finding detriment to the child” is a “‘quintessentially’

discretionary decision” that we review for abuse of discretion. (Id. at p. 1315; see In re

J.S. (2017) 10 Cal.App.5th 1071, 1080 [applying hybrid standard of review to sibling

bond exception].) This record supports the juvenile court’s conclusion that the beneficial

parent-child relationship exception did not apply.

Here, there is no question mother fulfilled the first prong of the beneficial parent-

child relationship exception, as she consistently visited the child. Thus, the issue before

us is whether she met her burden on the second prong—that the child would benefit from

continuing the parent-child relationship. We do not find the evidence favoring mother’s

position compelled the juvenile court to find the exception applied or that this is one of

the extraordinary cases where this exception should have been applied.

Again, we do not dispute that mother loves her child “intensely.” However, there

is simply no evidence that establishes her relationship with the child promoted his well-

being to such an extent that it outweighed the well-being he would gain in a permanent

home with an adoptive parent. The child was 17 days old at the time he was removed

from mother’s custody and, since removal, he has never lived with mother or stayed with

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

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her overnight. In contrast, he has spent all but 17 days of his life living with his

caregivers, who have consistently occupied parental roles in his life.

Mother contends the facts in her case are similar to those in In re S.B. (2008)

164 Cal.App.4th 289 (S.B.). There, a three-year-old child was removed from her father’s

custody; the father immediately acknowledged his drug use, fully complied with his case

plan, and remained drug free. (Id. at p. 298.) Even after a year apart, the child wanted to

live with his father and became upset when visits ended. (Ibid.) The appellate court

reversed the termination of parental rights, finding substantial evidence that the beneficial

parent-child relationship exception applied. (Id. at pp. 298-299.) The court concluded:

“[T]he only reasonable inference is that S.B. would be greatly harmed by the loss of her

significant, positive relationship with [her father].” (Id. at p. 301.)

Mother’s comparison of her situation to that of the father in S.B. is misplaced for

several reasons. First, mother did not make consistent efforts to alleviate or mitigate the

reasons the child was brought to the attention of the juvenile court. In fact, when the

child was two years old, mother’s second child was removed from her custody for the

same reasons her first child was removed. Second, the child was removed from

mother’s care when he was 17 days old, while S.B. was removed at the age of three

years. Third, a bonding study was conducted in S.B., and the doctor concluded there

was a potential for harm to S.B. if the parent-child relationship was lost. (S.B., supra,

164 Cal.App.4th at p. 296.) And fourth, mother’s social worker never opined that the

child would suffer detriment if mother’s parental rights were terminated. Moreover, S.B.

is confined to its “extraordinary facts.” (In re C.F. (2011) 193 Cal.App.4th 549, 558.)

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The same court that decided S.B. later stated that S.B. “does not support the proposition a

parent may establish the parent-child beneficial relationship exception by merely

showing the child derives some measure of benefit from maintaining parental contact.

As [In re Autumn H. (1994) 27 Cal.App.4th 567, 575] points out, contact between a

parent and child will always ‘confer some incidental benefit to the child,’ but that is

insufficient to meet the standard.” (In re C.F., at pp. 558-559.)

Relying on In re E.T. (2018) 31 Cal.App.5th 68, mother argues that the juvenile

court may not terminate parental rights based upon an unenforceable expectation that the

prospective adoptive parents will voluntarily permit future contact. However, the court

did not rely upon any potential future contact in terminating parental rights. Even if it

did, any posttermination visitation order is not the equivalent of a finding that termination

of parental rights would be detrimental, and it is necessarily limited to the time period

until the child is adopted, after which visitation would be subject to a postadoption

contact agreement.

Even if we assume the child enjoyed visiting with mother, the strong statutory

preference for adoption prevails by the time of the section 366.26 hearing to ensure

permanency and stability for the child. While mother cares deeply for her son and is

working on addressing the issues that necessitated the juvenile court’s intervention, there

is no evidence he would be “greatly harmed” by the termination of his natural parent-

child relationship with her. (In re Angel B., supra, 97 Cal.App.4th at p. 466.) We

therefore conclude she has not shown that the court’s findings lack the support of

substantial evidence or that its exercise of discretion rested on an unsupported factual

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basis. In short, the court properly found the parent-child relationship exception to

adoption did not apply.

C. Legal Guardianship

Mother also contends the juvenile court should have ordered legal guardianship, as

opposed to adoption, as the permanent plan. We disagree.

Under section 366.26, subdivision (b)(1), the statutory preference is to terminate

parental rights and order the child placed for adoption. “The Legislature has thus

determined that, where possible, adoption is the first choice . . . ‘because it gives the child

the best chance at [a full] emotional commitment from a responsible caretaker.’

[Citation.] ‘Guardianship, while a more stable placement than foster care, is not

irrevocable and thus falls short of the secure and permanent future the Legislature had in

mind for the dependent child.’” (In re Celine R. (2003) 31 Cal.4th 45, 53.) Because the

child was living with caregivers who were committed to adopting him, and the beneficial

relationship exception did not apply to preclude adoption, “it necessarily follows that the

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juvenile court correctly determined that adoption was the appropriate permanent plan for

[him].” (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420.)6

III. DISPOSITION

The juvenile court’s orders denying mother’s section 388 petition, terminating

parental rights, and freeing the child for adoption are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
Acting P. J.
We concur:

MILLER
J.

FIELDS
J.

6 This case is not similar to In re Scott B. (2010) 188 Cal.App.4th 452, 471-472.
In that case, the mother provided stability to the life of the 11-year-old child, which is
“what adoption is supposed to do, but it may not in this case.” (Id. at p. 472.) “Given
[the child’s] strong emotional attachment to [his mother], his continued precarious
emotional state, and his history of regressing and running away when he is stressed, there
is a very good chance that he will have a meltdown if his usual frequent visitation with
[his mother] does not continue. The only way to avoid that serious emotional and
developmental setback and ensure that [the child’s] usual visitation with [his mother]
continues is by court order. The only way to have such an order is to have [the child’s]
permanent plan be legal guardianship or long-term foster care. . . . The record
demonstrates that adoption, with its inherent possibility that [the child’s] usual contacts
with [his mother] would be interrupted, poses the chance of a danger not worth taking.”
(Ibid.)

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