In re Justin F. CA2/7

Filed 10/6/22 In re Justin F. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

In re Justin F., a Person Coming B312640
Under the Juvenile Court Law. (Los Angeles County Super.
Ct. No. 18CCJP03154)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

XIOMARA L.,

Defendant and Appellant.

APPEAL from orders of the Superior Court of Los Angeles
County, Stephen C. Marpet, Juvenile Court Referee. Affirmed.
Leslie A. Barry, under appointment by the Court of Appeal,
for Defendant and Appellant Xiomara L.
 Dawyn Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Kimberly Roura, Deputy County
Counsel, for Plaintiff and Respondent.
__________________________

Xiomara L. (Mother) appeals from the juvenile court’s
orders denying two successive petitions for modification under
Welfare and Institutions Code1 section 388 and the court’s order
terminating her parental rights over five-year-old Justin F. under
section 366.26. Mother contends the court abused its discretion
in denying her section 388 petitions without a hearing despite
evidence Mother completed a six-month outpatient substance
abuse program and had 24 consecutive negative drug tests.
Mother also argues the trial court erred in finding in a conclusory
fashion that the beneficial parental relationship exception under
section 366.26, subdivision (c)(1)(B)(i), did not apply. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Referral, Dependency Petition, and Detention
On April 26, 2018 the Los Angeles County Department of
Children and Family Services (Department) received a referral
alleging general neglect of Justin, then 21 months old, and his
nine-year-old half-brother Henry E. by Mother and Justin’s

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

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father, Justin F., Sr. (Father).2 The referral alleged the parents,
who lived together, used marijuana daily and were suspected of
using methamphetamine. In recent months the parents lost an
excessive amount of weight, were pale, unkempt, incoherent, and
violently aggressive towards each other, and they were often seen
in the street at night having hallucinations. The caller reported
Mother and Father engaged in violent physical altercations on a
nearly daily basis. Mother was often bruised, and the parents
were heard throwing objects, punching walls, and breaking doors.
The children were crying during the fights, and Justin appeared
sad and withdrawn. The parents often left the children without
supervision in the middle of the night.
In her April 26 interview with a social worker, Mother
disclosed she smoked marijuana about three times a week when
the children were not present, but she denied using
methamphetamine or other drugs. Mother stated she was
stressed by her father’s recent death and news that Henry’s
abusive father, Henry E., Sr. (Henry Sr.), would soon be released
from prison. Mother admitted that she and Father had been
getting into more frequent arguments, but she denied any
physical abuse and stated the scratches on her face were self-
inflicted due to her anxiety and anger issues. Henry told the
social worker Mother and Father argued and yelled, and Mother

2 Father is not a party to this appeal. Further, although one
of the section 388 petitions at issue on appeal concerns both
Justin and Henry, Mother in her opening brief states she is not
challenging any orders relating to Henry. We therefore focus on
Justin.

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called Father bad names, but Henry had not seen them hit each
other.3
On April 27, 2018 Mother tested positive for cannabinoids,
methamphetamine, and amphetamine. However, Mother
continued to deny she used methamphetamine. On May 12 the
Department detained the children and placed them with
maternal aunt Wendy P.
On May 16, 2018 the Department filed a dependency
petition alleging Mother and Father were current abusers of
methamphetamine, amphetamine, and marijuana; Mother had
mental and emotional problems, including depression, anxiety,
and anger management issues; and Henry Sr. had a history of
violent conduct and suffered criminal convictions for spousal
battery and second degree robbery that placed the children at
serious risk of harm.

B. The Jurisdiction and Disposition Hearing and Initial
Reunification Period
At the October 1, 2018 jurisdiction and disposition hearing,
the juvenile court sustained the allegations in the petition under
section 300, subdivision (b)(1), as to Mother’s and Father’s
substance abuse, Mother’s mental health, and Henry Sr.’s
criminal history. The court declared Justin and Henry

3 Mother was arrested in 2012 for domestic violence
involving Henry Sr., in 2014 for assault with a deadly weapon
after she struck maternal grandmother’s boyfriend with a bat,
and in 2017 for assault with a deadly weapon involving her
cousin’s partner.

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dependents of the court, removed them from the parents’ custody,
and ordered them to remain placed in Wendy’s home. The court
ordered Mother to complete a six-month drug and alcohol
program with aftercare, a 12-step program with sponsor, weekly
random drug testing, parenting classes, and individual
counseling with a licensed therapist to address case issues,
including domestic violence.4 The court ordered monitored visits
for at least two hours twice per week, with the Department
having discretion to liberalize visitation.
As of November 5, 2018 Mother was testing negative for
drugs. She completed an outpatient substance abuse program on
September 26, 2018 (prior to the jurisdiction and disposition
hearing). Mother enrolled in individual counseling, and she was
attending monthly psychiatric appointments and taking
prescribed medication. She also completed 24 hours of parenting
classes. Mother consistently visited Justin and Henry, and the
monitors did not report any concerns. The Department
subsequently liberalized visitation for Mother to unmonitored
day visits, and later overnight visits in Mother’s home.
In March 2019 the Department reported the children had
slowly adjusted to Wendy’s home and parenting style, and they
were “thriving.” Mother maintained her sobriety, and her
physical appearance and emotional well-being had improved
dramatically. The social worker observed Mother was
“transparent, cooperative, and had made positive stri[d]es

4 On August 15, 2018 Mother completed a 10-session
domestic violence support group. The court’s October 1, 2018
order did not require Mother to complete a domestic violence
program.

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forward in order to regain custody of her children.” Father was
living with his parents. At the April 2, 2019 review hearing, the
juvenile court released the children to Mother, conditioned on her
continuing to test negative for drugs.

C. Subsequent Events and Petitions
In September 2019 the Department reported Mother
missed four drug tests in June and July. Mother told the social
worker she remained sober but had difficulty making it to the
tests. Mother reported she was not in a relationship with Father
and had not seen him since Justin’s birthday party in July 2019.
Father was living with the paternal grandparents. Mother and
the children lived in a room rented from paternal aunt Emma F.,
who reported Mother appeared to be sober and the children were
doing well in Mother’s care.
However, on September 10, 2019 the Department learned
Father had been arrested on August 16, 2019 after an altercation
with Mother at Emma’s home. Mother explained she called the
police on August 16 after Father came to Emma’s home to
reconcile with Mother, and when she declined, he became
aggressive. Mother told the responding police officers that
Father pushed her, causing her to fall on her back into a closet,
and he threw a picture frame at her head and then a pedestal fan
at her body. Mother obtained a three-year no-contact criminal
protective order against Father. Mother told the social worker
she forgot to mention this incident during her interviews with the
social worker in early September. Mother later told the social
worker she ran into Father a week before the August 16 incident,
and Father grabbed her by the wrist and tried to “get physical”
with her, resulting in bruising.

6
 Emma told the social worker that Father had been residing
with Mother since the children were released to Mother in April
2019, and Mother and Father fought continuously. Before the
August 16 altercation, Emma had not witnessed physical violence
between the parents, but neighbors had approached Emma on
multiple occasions stating they witnessed physical fights,
including Mother and Father punching each other on the balcony.
Mother asked Emma to lie about the situation when social
workers visited the home. One of Emma’s neighbors confirmed
Mother and Father had been living at Emma’s home for the last
six months, and the neighbor had seen the parents arguing on
several occasions. Father denied living at the home after the
children were released to Mother in April, stating that although
he and Mother argued on August 16, he left after a few minutes
and they did not have a physical altercation. Eleven-year-old
Henry similarly denied Father lived at the home or had argued
with Mother. Henry said he had not seen Father since Justin’s
birthday in July.
On September 27, 2019 the Department filed a subsequent
petition (§ 342) alleging under section 300, subdivisions (a) and
(b)(1), that Mother and Father had a history of engaging in
violent altercations, Father committed domestic violence on
August 16, and Mother failed to protect the children from Father,
allowing him to reside in the children’s home and have unlimited
access to them. The same day the Department filed a
supplemental petition (§ 387) alleging Father was abusing
marijuana and failed to comply with his case plan and Mother
violated the juvenile court’s visitation order by allowing Father to
reside in the children’s home with unlimited access to them,
placing the children at substantial risk of serious physical harm.

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 On September 30 the court detained the children from
Mother and ordered monitored visitation for Mother and Father
for at least two hours twice per week, with Mother allowed
“loosely” monitored visits at Wendy’s home without Father
present. After counsel for the Department noted that Mother and
Father had not been ordered to complete a domestic violence
program, the court requested the Department provide referrals to
Mother and Father for domestic violence programs.
On October 15, 2019 Mother tested positive for
methamphetamine. On November 6 the Department filed a first
amended supplemental petition alleging Mother had a history of
substance abuse and continued to abuse methamphetamine.
In November 2019 Mother again told the social worker
Father never lived with her after the children were released to
her, she did not have contact with Father, and the last time
Father was present in the home was for Justin’s July 2019
birthday party. Mother also denied she used methamphetamine,
stating the positive test result in October was likely due to
mislabeling by an intern at the testing facility. Mother stated,
“‘If I was using, I would not have tested.’” Mother admitted she
relapsed by using marijuana. Mother was having consistent
visits with the children for three hours every Sunday.
In January 2020 Wendy reported that up until
December 30, 2019, Mother had quality visits with the children
and would typically accompany Wendy on outings or visit the
children in the home. However, Mother and Wendy had an
argument after Wendy observed a “‘hicky’” on Mother’s neck and
confronted Mother about being with Father. Wendy was not
willing to continue to monitor Mother’s visits because she
believed Mother continued to see Father. In addition, during the

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social worker’s visit to the paternal grandparent’s apartment
complex where Father was living, the property manager provided
video footage of Mother and Father engaged in a physical
altercation in the parking garage on January 10 and reported
that Mother and Father were together at the complex two days
earlier. On January 14 the social worker found Mother and
Father packing up a homeless encampment across the street
from a park near the paternal grandparents’ apartment complex.
Mother had a four-inch scratch on her cheek and neck but stated
she received the injury fighting with another woman. Mother
claimed she was only at the park to help maternal grandmother
clear a homeless encampment, and Mother had no idea Father
would be there. The social worker reminded Mother about the
restraining order against Father. Mother was currently homeless
and living out her car, but she reported she had not used drugs
and was willing to test on demand. Mother tested negative for
drugs on December 3, 2019 but failed to show up for three
subsequent tests, most recently on January 8, 2020.
At the February 3, 2020 combined jurisdiction and
disposition hearing and status review hearing, the juvenile court
sustained the allegation in the subsequent petition under
section 300, subdivision (b)(1), that Mother failed to protect the
children from Father’s domestic violence, including the August
16, 2019 incident at Emma’s home and the earlier occasion when
Father attempted to “get physical” with Mother.5 The court
sustained the first amended supplemental petition based on
Father’s drug abuse and noncompliance with his case plan,

5 The juvenile court dismissed the allegation under
section 300, subdivision (a).

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Mother’s allowing Father to have unmonitored access to the
children, and Mother’s continued methamphetamine use and
positive drug test in October 2019. The court terminated
reunification services, stating the case was more than 18 months
old and the parents had been provided appropriate services. The
court found the children were suitably placed with Wendy and
ordered monitored visits at a Department-approved setting.

D. Post-reunification Period and Mother’s Section 388 Petitions
In May 2020 the Department reported the children were
“adjusting and doing well” in Wendy’s care. Wendy loved the
children, was able to meet all of their needs, and wanted to adopt
them if the parents were unable to reunify with them. The
paternal grandparents monitored separate weekly visits for
Mother and Father. The paternal grandparents reported that
Mother’s visits were “sometimes regular and then sporadic,” and
the visits generally lasted one to two hours once a week.
In November 2020 the Department reported that Mother
told the social worker she was employed, renting a room, and
participating in outpatient substance abuse services. According
to Mother, she was no longer in a relationship with Father. The
paternal grandparents continued to monitor separate weekly
visits for Mother and Father, usually in a public park or garden
because of the COVID-19 pandemic. The grandparents reported
Mother had “quality visits” with Justin regularly, for at least one
to two hours once a week, but the paternal grandparents did not
provide any additional details about the visits or Mother’s bond
with Justin.
On February 6, 2021 Father was arrested for murder,
robbery, and other charges, and he was in custody awaiting a

10
preliminary hearing set for July 7, 2021. The paternal
grandparents told the social worker that Mother continued to
visit the children weekly in the park, and Mother and the
children had “close bonds.” Wendy reported that Mother also
visited the children in her home at least once during the week.
Wendy reported “quality visits” with “no concerns.” Mother
engaged with the children and appropriately redirected them
when needed. Wendy and her partner Mr. B. were committed to
adopting both children, but they were amenable to a legal
guardianship for Henry if he did not want to be adopted. Henry
was reluctant about adoption and hoped to return to Mother.
Justin, then four-years old, was too young to provide a
“meaningful statement” about his desired placement, but he
“appear[ed] connected to his caregivers.”
On May 21, 2021 Mother filed a section 388 petition
requesting the juvenile court take the selection and
implementation hearing off calendar and release the children to
her custody, or in the alternative, reinstate her reunification
services. Mother stated she had completed a six-month
substance abuse program with random drug testing, and she had
provided 24 negative tests. Further, Mother participated in
individual counseling and was visiting the children three to four
times per week and attending their medical appointments
whenever possible. Mother argued that granting her relief would
be in the children’s best interest because it would allow them “a
chance to return to their biological mother and achieve
permanency at home.” Mother added, “[T]he children have a
strong bond with their mother and when visited by her they are
excited, and when she leaves they are unhappy.” Mother
submitted in support of her petition a letter dated May 21, 2021

11
from the director of Next Level Up Recovery LLC stating Mother
had enrolled in its six-month outpatient drug program on
November 9, 2020; she participated in meetings and submitted to
random drug testing; she had 24 negative drug tests; and “she
showed great improvement in her way of thinking when
addressing her substance abuse issues.”
At the May 24, 2021 hearing set for selection and
implementation, Mother’s attorney appeared by videoconference
with Mother joining by telephone. At the beginning of the
hearing the juvenile court denied the section 388 petition, finding
there were no changed circumstances and the proposed
modifications were not in the children’s best interest. Mother’s
attorney did not request to present argument or evidence. The
court continued the selection and implementation hearing until
September 2021 because Henry was still considering whether he
wanted to be adopted.
In August 2021 the Department modified Mother’s
visitation schedule because the paternal grandparents and
Wendy had moved to locations further from Mother. Mother had
monitored visits with the children for three to four hours on
alternate Sundays, plus weekday visits monitored by Wendy or
maternal aunt Irene P. Wendy and the paternal grandparents
reported Mother visited the children on a consistent basis.
Further, “The monitors and children report quality visits between
[M]other and the children. The monitors report that [M]other is
engaged with the children during visits and appropriately
redirects the children during visits as needed.” No further
information was provided regarding the quality or content of the
visits. Father remained in custody awaiting trial. Henry was
now adamant he did not want to be adopted. The Department

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recommended, and Wendy and Mr. B. agreed, to a permanent
plan of legal guardianship for Henry and adoption for Justin.
On September 15, 2020 Mother filed a second section 388
petition as to Justin. The second petition repeated the
arguments from the first petition and added that Mother’s visits
monitored by Wendy were “going very well.” In addition, Mother
had received a housing voucher and would be able to provide
stable housing for the children. Mother submitted the May 21,
2021 letter from the director of Mother’s outpatient recovery
program she had submitted with her first petition, as well as a
May 10, 2021 certificate of completion of the outpatient program
and a United States Department of Housing and Urban
Development housing voucher.
At the September 20, 2021 combined section 388 and
selection and implementation hearing, the juvenile court denied
Mother’s second section 388 petition, finding “although Mother
has complied with some of the case plan, these children have
been out of her care and custody for a significant period of time. I
find it’s not in these children’s best interest and I’m denying the
388 outright and going forward today . . . .” Mother’s attorney
appeared by videoconference, and Mother was on the telephone.
Mother’s attorney did not request to be heard on the section 388
petition.
As to the selection and implementation hearing, Mother’s
attorney argued the juvenile court should not terminate Mother’s
parental rights over Justin because the beneficial parental
relationship exception applied. The attorney stated, “She’s
completed a six-month substance abuse program where she’s
tested randomly and provided clean tests. She’s participated in
individual counseling. She visits the children multiple times

13
throughout the week. Henry does not want to be adopted. And
Mother has indicated to me that Justin if he was old enough he
would also wish not to be adopted.” The Department responded
that Mother did not come “anywhere near meeting the
requirements” for the beneficial parental relationship exception
to apply. Minor’s counsel joined in the Department’s
recommendation that Justin be adopted.
The juvenile court concluded without elaboration that
“[t]here is no [section 366.26, subdivision (c)(1)(B)(i)] exception as
to Justin.”6 The court found by clear and convincing evidence
Justin was going to be adopted, and it terminated Mother’s and
Father’s parental rights.7

6 Although the juvenile court made no oral findings on the
elements of the beneficial parental relationship exception, the
minute order stated the court made a finding “the parent[] has
not maintained regular visitation with the child and has not
established a bond with the child [and] any benefit accruing to
the child from his/her relationship with the parent(s) is
outweighed by the physical and emotional benefit the child will
receive through the permanency and stability of adoption, and
that adoption is in the best interest of the child.” This appears to
be a boilerplate finding that does not reflect the court’s findings
on the record. We therefore do not consider these findings as part
of our legal analysis. Inclusion of this type of boilerplate finding
undermines the integrity of the proceedings and is a disservice to
the parties and this court. We have criticized this practice and
are deeply troubled that it persists. (See, e.g., In re T.G. (2020)
58 Cal.App.5th 275, 298, fn. 20.)
7 The court continued the selection and implementation
hearing with respect to Henry to obtain Wendy’s signature on
forms necessary to complete the legal guardianship.

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 Mother timely appealed from the juvenile court’s May 24,
2021 order denying her first section 388 petition. She separately
appealed from the September 20, 2021 denial of her second
section 388 petition and the order terminating parental rights.
On December 9, 2021 we consolidated Mother’s appeals.

DISCUSSION

A. The Juvenile Court Did Not Abuse Its Discretion in Denying
Mother’s Section 388 Petitions
1. Applicable law and standard of review
Section 388, subdivision (a)(1), provides, “Any parent or
other person having an interest in a child who is a dependent of
the juvenile court . . . may, upon grounds of change of
circumstance or new evidence, petition the court in the same
action in which the child was found to be a dependent
child . . . for a hearing to change, modify, or set aside any order of
court previously made or to terminate the jurisdiction of the
court.” “Section 388 provides for modification of juvenile court
orders when the moving party presents new evidence or a change
of circumstances and demonstrates modification of the previous
order is in the child’s best interest.” (In re Malick T. (2022)
73 Cal.App.5th 1109, 1122; accord, In re Jasmon O. (1994)
8 Cal.4th 398, 414-415; In re Stephanie M. (1994) 7 Cal.4th 295,
317 (Stephanie M.).)
“[Section 388] petitions are to be liberally construed in
favor of granting a hearing to consider the parent’s request.
[Citations.] The parent need only make a prima facie showing to
trigger the right to proceed by way of a full hearing.” (In re
Marilyn H. (1993) 5 Cal.4th 295, 309-310; accord, In re R.A.

15
(2021) 61 Cal.App.5th 826, 836; see Cal. Rules of Court,
rule 5.570(a) [“A petition for modification must be liberally
construed in favor of its sufficiency.”].) “‘A “prima facie” showing
refers to those facts which will sustain a favorable decision if the
evidence submitted in support of the allegations by the petitioner
is credited.’ [Citation.] ‘Whether [the petitioner] made a prima
facie showing entitling [the petitioner] to a hearing depends on
the facts alleged in [the] petition, as well as the facts established
as without dispute’” by the court’s records. (In re B.C. (2011)
192 Cal.App.4th 129, 141; see In re Justice P. (2004)
123 Cal.App.4th 181, 189 [“In determining whether the petition
makes the necessary showing, the court may consider the entire
factual and procedural history of the case.”].) “[T]he court may
summarily deny the motion if the petition fails to make a prima
facie showing (1) of a change of circumstances or new evidence
requiring a changed order, and (2) the requested change would
promote the best interests of the child.” (In re Justice P., at
pp. 188-189; accord, In re R.A, supra, 61 Cal.App.5th at p. 836.)
Further, “‘[n]ot every change in circumstance can justify
modification of a prior order’” under section 388. (In re N.F.
(2021) 68 Cal.App.5th 112, 1202.) Rather, “‘“the change in
circumstances must be substantial.”’” (In re Malick T., supra,
73 Cal.App.5th at p. 1122; accord, In re J.M. (2020)
50 Cal.App.5th 833, 846.)
When a section 388 petition is filed after reunification
services have been terminated, the focus is on the child’s best
interest. (Stephanie M., supra, 7 Cal.4th at p. 317 [“After the
termination of reunification services, the parents’ interest in the
care, custody and companionship of the child are no longer
paramount. Rather, at this point ‘the focus shifts to the needs of

16
the child for permanency and stability’ [citation], and in fact,
there is a rebuttable presumption that continued foster care is in
the best interests of the child.”]; In re I.B. (2020) 53 Cal.App.5th
133, 159.)
“We review the juvenile court’s decision to grant or deny a
section 388 petition for abuse of discretion.” (In re I.B., supra,
53 Cal.App.5th at p. 152; accord, Stephanie M., supra, 7 Cal.4th
at p. 318.) We likewise review a summary denial of a section 388
petition for abuse of discretion. (In re R.A., supra, 61 Cal.App.5th
at p. 837; accord, In re Anthony W. (2001) 87 Cal.App.4th 246,
250.)

2. Mother failed to make a sufficient showing a
modification was in Justin’s best interest
Mother contends the juvenile court abused its discretion in
denying her section 388 petitions without holding a hearing
despite Mother’s successful completion of a six-month outpatient
substance abuse program and counseling between November
2020 and May 2021, 24 negative drug tests during that period,
positive visits with Justin, and in Mother’s second petition,
receipt of a housing voucher. The Department contends six
months of sobriety at the time of Mother’s first section 388
petition did not demonstrate changed circumstances because
Mother relapsed after a previous period of treatment and
sobriety. (See In re N.F., supra, 68 Cal.App.5th at p. 121
[juvenile court properly concluded Mother failed to establish
sufficiently changed circumstances by evidence of completion of a
90-day residential program because Mother had twice completed
programs and relapsed]; In re Cliffton B. (2000) 81 Cal.App.4th
415, 423 [father’s seven months of sobriety since last relapse was

17
insufficient to show changed circumstances where it took him six
months during prior dependency proceeding to achieve sobriety
and he maintained sobriety for eight months before relapse].)
As Mother observes, however, there is no evidence she
relapsed in the period following her completion of a drug
treatment program in May 2021 leading up to the September
2021 hearing on her second section 388 petition. Although
Mother did not present evidence she tested negative for drugs
during this period, it appears from her petition and the
Department’s reports in the summer of 2021 that Mother gained
stability in her life in that she was regularly visiting the children
in Wendy’s home during the week, and she had obtained a
housing voucher that would enable her to live independently with
the children. Mother therefore made a prima facie showing of
changed circumstances, at least as to her second section 388
petition.
However, the juvenile court did not abuse its discretion in
finding a change in Justin’s placement or further delay on the eve
of the selection and implementation hearing was not in Justin’s
best interest given his need for permanence and stability. (In re
Stephanie M., supra, 7 Cal.4th at p. 317.) At the time of the first
section 388 petition, Justin was not yet five years old and had
lived with Wendy for the prior three years of his life (other than
the five-month period in 2019 when he was released to Mother).
Justin was thriving in the care of Wendy and Mr. B., who
provided him with a stable home and wanted to adopt him.
Although Mother made substantial progress with respect to
drug rehabilitation and her visitation, her recovery was still
nascent, and there was a danger she would relapse into abusing
drugs while Justin was in her care, as she had in 2019.

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Moreover, Mother’s petitions did not address the sustained
allegations of domestic violence and her failure to protect the
children from Father. As discussed, Father was living with
Mother and the children after release of the children to Mother in
April 2019 in violation of the visitation order. Then, after the
children were again detained following the August 16, 2019
domestic violence incident and the filing of the subsequent and
supplemental petitions, in January 2020 Mother was captured on
video in an altercation with Father at the paternal grandparents’
apartment complex, and Mother was later found with Father at a
nearby homeless encampment, in violation of the three-year
criminal protective order barring Father from contact with
Mother. Wendy refused to monitor Mother’s visitation in early
2020 because she believed Mother and Father were still
romantically involved. And Mother continued to lie to social
workers, denying she was living with Father and suffered
physical abuse, despite substantial evidence to the contrary.
Mother presented no evidence she ended her relationship with
Father after the court terminated her reunification services in
February 2020, or that she in any way addressed her abusive
relationship with Father and failure to protect the children.8
Further, Mother failed to address Father’s domestic violence in

8 We recognize that at the time of the first section 388
petition in May 2021, Father was in custody awaiting a July 2021
preliminary hearing, after being arrested in February 2021 for
murder and robbery, and Father was still in custody at the time
of the September 2021 hearing. But the record does not reflect
the outcome of Father’s preliminary hearing or the possible
release of Father pending trial.

19
her opening or reply brief on appeal, providing no response to the
Department’s argument Mother had not shown changed
circumstances as to domestic violence. In light of the risk the
pattern of domestic violence with Father would continue,
especially given Mother’s denial of abuse and violation of the
criminal protective order, the trial court did not abuse its
discretion in concluding a modification of the custody order was
not in Justin’s best interest.

B. The Juvenile Court Did Not Abuse Its Discretion in Finding
the Beneficial Parental Relationship Exception to Adoption
Did Not Apply
1. Governing law and standard of review
“At the section 366.26 hearing, the focus shifts away from
family reunification and toward the selection and implementation
of a permanent plan for the child.” (In re S.B. (2009) 46 Cal.4th
529, 532; accord, In re Caden C. (2021) 11 Cal.5th 614, 630
(Caden C.).) “‘Once the court determines the child is likely to be
adopted, the burden shifts to the parent to show that termination
of parental rights would be detrimental to the child under one of
the exceptions listed in section 366.26, subdivision (c)(1).’” (In re
B.D. (2021) 66 Cal.App.5th 1218, 1224-1225 (B.D.); accord, In re
Celine R. (2003) 31 Cal.4th 45, 53 [“the court must order adoption
and its necessary consequence, termination of parental rights,
unless one of the specified circumstances provides a compelling
reason for finding that termination of parental rights would be
detrimental to the child”].)
Under section 366.26, subdivision (c)(1)(B)(i), “the parent
may avoid termination of parental rights” if the parent
establishes by a preponderance of the evidence “that the parent

20
has regularly visited with the child, that the child would benefit
from continuing the relationship, and that terminating the
relationship would be detrimental to the child. [Citations.] The
language of this exception, along with its history and place in the
larger dependency scheme, show that the exception applies in
situations where a child cannot be in a parent’s custody but
where severing the child’s relationship with the parent, even
when balanced against the benefits of a new adoptive home,
would be harmful for the child.” (Caden C., supra, 11 Cal.5th at
pp. 629-630; accord, B.D., supra, 66 Cal.App.5th at p. 1225.)
A parent has regular visitation and contact when the
parent “‘visit[s] consistently,’ taking into account ‘the extent
permitted by court orders.’” (Caden C., supra, 11 Cal.5th at
p. 632; accord, In re I.R. (2014) 226 Cal.App.4th 201, 212.)
Whether “‘the child would benefit from continuing the
relationship’” with his or her parent is shaped by factors “such as
‘[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.’”
(Caden C., at p. 632; accord, In re Katherine J. (2022)
75 Cal.App.5th 303, 317.) “‘If severing the natural parent/child
relationship would deprive the child of a substantial, positive
emotional attachment such that,’ even considering the benefits of
a new adoptive home, termination would ‘harm[]’ the child, the
court should not terminate parental rights.” (Caden C., at p. 633;
Katherine J., at p. 317.) “While application of the beneficial
parental relationship exception rests on a variety of factual
determinations properly reviewed for substantial evidence, the
ultimate decision that termination would be harmful is subject to

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review for abuse of discretion.” (Caden C., at p. 630; accord, B.D.,
supra, 66 Cal.App.5th at p. 1225.)

2. The juvenile court did not abuse its discretion
Mother contends the juvenile court erred in terminating
her parental rights over Justin because the court concluded
“blithely and without identifying the evidence it was relying on”
that the beneficial parental relationship exception did not apply.
Mother argues the evidence compelled a finding in her favor on
the first two steps of the analysis of the exception under Caden
C., supra 11 Cal.4th at p. 629 in that she maintained regular
visitation with Justin and Justin developed a strong bond with
Mother such that he would benefit from continuing the
relationship. Mother contends the court therefore abused its
discretion in determining the benefit of adoption outweighed the
benefit to Justin from his relationship with Mother.9 The court
did not abuse its discretion.
We agree with Mother that the juvenile court’s failure to
make findings on the record is troubling, and certainly the better
practice would have been for the court to make findings as to
each of the three steps of the Caden C. analysis for the benefit of
the parents and potential appellate review. But such findings are
not required. As the Court of Appeal explained in In re A.L.
(2022) 73 Cal.App.5th 1131, at page 1156, “[W]e infer from

9 Mother’s formulation of the third step of the Caden C.
analysis is not quite accurate: the third step properly considers
whether “losing the relationship with [Mother] would harm the
child to an extent not outweighed, on balance, by the security of a
new, adoptive home.” (Caden C., supra, 11 Cal.5th at p. 634.)

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section 366.26, subdivision (c)(1)(D)—under which the juvenile
court is required to ‘state its reasons in writing or on the record’
when it makes a finding that termination of parental rights
would be detrimental to the child—that the court is not required
to make findings when it concludes that parental rights
termination would not be detrimental.” (Accord, In re Andrea R.
(1999) 75 Cal.App.4th 1093, 1109 [evidence in the record
describing the nature of parents’ visitation and the child’s
reaction supported an implied finding the parents failed to
establish the beneficial parental relationship exception].) The
California Rules of Court do not impose any additional
requirement that the juvenile court make findings on the record
when finding termination of parental rights would not be
detrimental to the child. (See Cal. Rules of Court, rule 5.725(d).)
Here, the court found in the selection and implementation
hearing that “there is no [section 366.26, subdivision (c)(1)(B)(i)]
exception as to Justin,” from which we infer the court found
Mother did not meet her burden to satisfy at least one of the
steps of the Caden C. analysis.10
As to the first step of the Caden C. analysis, the record
shows Mother carried her burden of proving by a preponderance
of the evidence that she regularly visited Justin. Other than the
period in early 2020 when Wendy withdrew as a monitor, from
the beginning of the dependency case Mother visited the children

10 The minute order of the hearing states Mother failed to
meet her burden on all three steps of the Caden C. analysis. But,
as discussed, the minute order does not reflect the juvenile court’s
more cursory oral findings on the record, so it is unclear whether
the court found Mother had not met some or all of the steps.

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at least once a week for one to three hours. In January 2020
Wendy reported Mother consistently visited the children for three
hours every Sunday. In May 2020 the paternal grandparents
reported Mother’s visits were “regular and then sporadic,” but
generally visits lasted one to two hours each week. In November
2020, and again in May 2021, the grandparents reported regular,
quality visits for at least one to two hours a week, despite the
logistical challenges of the COVID-19 pandemic. In May 2021
Wendy reported Mother also visited the children in Wendy’s
home at least once during the weekdays. Thus, for at least the
final year of the proceeding, Mother’s visitation exceeded the
allowable visitation in the custody order of two hours, twice per
week. Under these circumstances, Mother maintained “regular
visitation and contact with the child[ren]” (§ 366.26,
subd. (c)(1)(B)(i)), “taking into account ‘the extent permitted by
court orders.’” (Caden C., supra, 11 Cal.5th at p. 632; cf. In re
J.C. (2014) 226 Cal.App.4th 503, 531 [visitation not regular
where the mother missed five visits in the six weeks preceding
the selection hearing and there was a “troubling manner of
[m]other’s cancellations and pattern of changing her plans last
minute”]; In re C.F. (2011) 193 Cal.App.4th 549, 554 [visitation
not regular where “overall [the mother’s] visitation was sporadic,”
including her visiting only three times in a three-month period
despite an order allowing weekly visitation].)
With respect to the second step, Mother failed to establish
Justin had a substantial, positive emotional attachment with her,
as a result of which he would benefit from continuing the
relationship. (Caden C., supra, 11 Cal.5th at p. 636.) At the
selection and implementation hearing, Mother’s attorney argued,
“Mother has indicated to me that Justin if he was old enough he

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would [like Henry] wish not to be adopted.” But the record did
not show that Justin, who had lived with Wendy from when he
was 21 months old until he was five (except for a brief period
when he was three years old), had a strong emotional attachment
to Mother.11 To be sure, Wendy and the monitors all reported
Mother had “quality visits” with the children, Mother engaged
with the children appropriately, and she redirected them when
necessary. And in May 2021 the paternal grandparents reported
generally that Mother and the children had “close bonds.” But
aside from Mother’s own statement in her first section 388
petition that “the children have a strong bond with their mother
and when visited by her they are excited, and when she leaves
they are unhappy,” Mother points to no evidence in the numerous
Department reports, monitor interviews, and other records
showing Justin was excited by Mother’s visits or sad when he was
separated from her. (See Caden C., supra, 11 Cal.5th at p. 632
[“courts often consider how children feel about, interact with, look
to, or talk about their parents”].)
Finally, Mother failed to make any showing as to the third
step that Justin’s loss of his relationship with Mother would be
detrimental to him “to an extent not outweighed, on balance, by
the security of a new, adoptive home.” (Caden C., supra,
11 Cal.5th at p. 634.) As discussed, Justin spent the majority of
his life with Wendy, and there is no evidence Justin would suffer
harm from losing his relationship with Mother. Conversely,

11 The record reflects 12-year-old Henry, in contrast to his
brother, was very closely bonded with Mother, enjoyed
“designate[d] quality time” during visits with her, and
consistently expressed a strong preference against adoption.

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there was evidence Justin would benefit from placement in an
adoptive home with Wendy. Wendy and Mr. B. were able to meet
Justin’s needs emotionally, physically, and financially, and to
provide a stable, clean, and safe home for him, and he was
“thriving” in their care. In short, Mother has not shown
“‘exceptional circumstances [citation], to choose an option other
than the norm, which remains adoption.’” (Caden C., supra,
11 Cal.5th at p. 631.)

DISPOSITION

The juvenile court’s orders denying Mother’s section 388
petitions and terminating Mother’s parental rights are affirmed.

FEUER, J.
We concur:

PERLUSS, P. J.

SEGAL, J.

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