In re Raymond A. CA2/7

Filed 4/3/13 In re Raymond A. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 RAYMOND A., a Person Coming B243103
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. CK83294)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

Plaintiff and Respondent,

v.

RAMONA A.,

Defendant and Appellant.

APPEAL from orders of the Superior Court of Los Angeles County. D. Zeke
Zeidler, Judge. Affirmed.
John Cahill and Aida Aslanian, under appointment by the Court of Appeal, for
Defendant and Appellant.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
 INTRODUCTION

The juvenile court declared two-year-old Raymond A. a dependent of the court
pursuant to Welfare and Institutions Code section 300, subdivision (b)1 and ordered
reunification services for the child’s mother. Over the next 18 months, mother repeatedly
used methamphetamine, was arrested on multiple occasions and failed to comply with the
court’s case treatment plan. The juvenile court terminated reunification services and set a
hearing on the termination of parental rights pursuant to section 366.26.
On the morning of the section 366.26 hearing, mother filed a section 388 petition
arguing that the juvenile court should reinstate reunification because she had completed a
drug treatment program and obtained housing. The juvenile court summarily denied the
petition, terminated parental rights and selected adoption by maternal grandparents as the
child’s permanent plan.
Mother appeals the juvenile court’s orders, arguing that: (1) she was entitled to a
hearing on her section 388 petition; and (2) the juvenile court erred by not applying the
beneficial parental relationship exception to parental termination. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Events Preceding DCFS’s Section 300 Petition
In November of 2009, DCFS received a referral alleging “general neglect by”
Ramona A., the mother of two-year-old Raymond A.2 The referral alleged that mother
was using drugs and reported that Raymond had been bitten by a dog. During a
voluntary “Up Front Assessment,”3 mother, then 26, informed a social worker that she

1 Unless otherwise noted, all further statutory citations are to the Welfare and
Institutions Code.

2 The child was born December of 2007.

3 According to DCFS, “Up Front assessments are conducted on behalf of DCFS by
Family Preservation agencies to obtain objective information on the families served by
DCFS. The assessments are voluntary and focus on caretaker capacity.”

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had a history of using marijuana and methamphetamine and that her son had been
“severely bit[ten] by the family dog.” Mother also admitted that she had experienced
serious depression, serious anxiety and had been previously hospitalized in a psychiatric
facility.
Mother agreed to participate in a “voluntary family maintenance” plan (VFM
plan) that included random drug testing, drug rehabilitation and individual counseling.
Between November 2009 and May 2010, mother passed two drug tests and missed six
others. Mother also failed to attend any of the drug treatment services to which she had
been referred.
In June of 2010, a team decision meeting (TDM) was held to address mother’s
refusal to comply with the VFM plan. Mother was informed that “a missed [drug] test
was a dirty drug test and if she failed to comply with the case plan, her child would
be taken from her custody and placed with her parents.” Mother agreed to enroll in an
out-patient drug treatment program within one week, continue drug testing and begin
individual counseling. Although mother was given another referral to a drug treatment
center, she did not attend the program and missed three drug tests in June and July.
On July 19, 2010, DCFS visited the mother, who lived with her parents (the
child’s maternal grandparents), and took the child out of her custody. DCFS informed
the mother that it was placing the child in the custody of the maternal grandparents and
that she had to leave the home.

B. Section 300 Petition and Detention Hearing
On July 21, 2010, DCFS filed a petition alleging that Raymond A. fell within the
jurisdiction of the juvenile court pursuant to section 300, subdivision (b). The petition
included two allegations under subdivision (b). The first allegation stated that mother
“has a five year history of substance abuse, including amphetamine, marijuana and
alcohol, which renders the mother incapable of providing regular care and supervision of
the child. The mother has a criminal record of a conviction of Possession Of Controlled
Substance Paraphernalia. . . . The mother’s substance abuse endangers the child’s

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physical and emotional health and safety and places the child at risk of physical and
emotional harm and damage.”
The second allegation asserted that mother “has mental and emotional problems
including a diagnosis of Major Depressive Disorder, Recurrent with Anxiety Disorder
Features, which render the mother incapable of providing regular care and supervision of
the child. On prior occasion, the mother was hospitalized for the evaluation and
treatment for the mother’s psychiatric condition. The mother’s mental and emotional
problems endanger the child’s physical and emotional health and safety and places the
child at risk of physical and emotional harm and damage.”
In support of the petition, DCFS filed a detention report that summarized mother’s
failure to comply with the prior VFM plan. The detention report stated that although
mother lived with the maternal grandparents, she had left the home and her whereabouts
was unknown. Mother had previously informed a social worker that she was unsure of
the father’s identity because she was “involved with two men . . . and d[idn’t] know who
the father was.” According to the maternal grandfather, the child had “always been living
in their home, so there [would be] no adjustment problem for the child.”
The report also indicated that, between January of 2005 and September of 2007,
mother had been arrested six times, resulting in felony convictions for burglary and false
impersonation and a misdemeanor conviction for possession of controlled substance
paraphernalia. The remaining three arrests included two drug charges, which were both
dismissed in the interests of justice, and a grand theft charge for which no disposition was
reported.
DCFS concluded that, based on mother’s “non compliance with her VFM case[,]
there [was] a ‘high’ risk of future abuse” and recommended “continued detention and
placement of the child” with the maternal grandparents.
At the detention hearing, the court appointed separate attorneys for Raymond and
his mother. The mother agreed to “submit on detention” and the maternal grandparents
confirmed that they were willing to adopt the child if the mother and father were unable
to “do what they need to get the child back.”

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 The court ruled that there was prima facie evidence that the “child [was] a person
described by Welfare and Institutions Code 300 section (b)” and ordered that the child
was to remain “detained with the maternal grandparents . . . pending disposition.” The
court ordered DCFS to provide “family reunification,” including monitored visitation,
and to “present due diligence in attempting to locate Father.” The court then set the
matter set for a contested jurisdictional and dispositional hearing.

C. Jurisdictional Hearing
1. Summary of the “Jurisdictional/Disposition Report”
On August 23, 2010, DCFS filed a “Jurisdiction/Disposition Report” summarizing
various interviews that had been conducted since the detention hearing. DCFS had
scheduled to meet with mother at the maternal grandparents’ home, where mother had
resided for all “26 years of her life [with] . . . four biological sisters.” However, when
DCFS arrived for the interview mother was not present. The maternal grandmother told
DCFS that she believed mother was “currently sleeping in her car for shelter.”
The maternal grandmother also informed DCFS that, on August 10, 2010, mother
had broken into the maternal grandparents’ home by breaking a window and disarming
the alarm. Mother took a shower and ate some food before her sister told her to leave the
premises. Mother initially refused to leave and then stole the sister’s car battery and
various items of clothing. The maternal grandmother told DCFS that she had contacted
the police, who were investigating the matter, and that the mother had not returned to the
home since the break-in.
When DCFS asked the maternal grandmother why she “felt that her daughter” had
broken into the house, she responded “‘Because she’s on drugs and has mental health
issues.’” The maternal grandmother also stated that mother “would bring her boyfriend
into the home and they would fight constantly and argued and it was dangerous for the
[child].” Maternal grandmother reported that mother had bruises on her arms “because
[her boyfriend] beats her up and she spends all her [welfare] . . . money on him to buy
drugs.”

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 When asked how the child was “adjusting to his placement,” the maternal
grandmother stated that “‘he doesn’t know the difference because I was always taking
care of him anyway. His mother would run off so much and leave for days without
checking on him. Even now she barely visits and when she does she just wants to take a
shower, eat and barely looks at [the child].’”
The maternal grandmother also stated that she had never contacted DCFS
regarding the child because mother “would threaten to take her grandson and leave the
home and never return if she attempted to report her.” Mother also “threatened to take
[the child] away from the family if [the maternal grandmother] showed any social
workers [mother’s] room, which [wa]s located outside of the home, attached to the
garage.” The maternal grandmother permitted DCFS to enter mother’s room, where a
social worker observed “a broken window, rotten food, trash and hazardous poisons such
as roach spray out in the open. [The social worker] also observed empty beer bottles,
dirty clothes piled up in the corner and empty water bottles filled with urine.”
The maternal grandmother reported that mother had “severe mental health issues,
including having violent outbursts, mood swings, and depression.” She also alleged that
mother could be “‘dangerous at times,’” and believed that mother’s substance abuse was
“related to her lack of mental health treatment.” According to the maternal grandmother,
mother “continue[d] to use methamphetamine and alcohol and [wa]s in desperate need of
a substance abuse program.”
DCFS also interviewed a “Family Preservation Worker” who had overseen the
mother’s VFM plan prior to the child’s detention. The worker told DCFS that it was
“unfortunate what happened . . . especially because we offered the mom . . . so much
help. She just continued to promise and promise to complete her programs and rarely
followed through with anything.”
Although DCFS was not able to interview the mother, the detention report
indicated that mother had previously told a Family Preservation social worker that she
experienced “feelings of depression, anxiety and trouble controlling violent behavior.
[She] also reported having a seven year history of mental health issues which include[d]

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attempted suicide, anxiety depression, and psychiatric hospitalizations.” Mother admitted
“to having a history of using methamphetamine and marijuana,” but stated that she did
not have “any problems . . . in terms of addiction, and stated that she [did] not see a need
for alcohol or drug treatment.”
The DCFS report also stated that the child “ha[d] . . . adjusted very well to his
current placement residence and appear[ed] to be very attached to his maternal
grandparents.”
In its assessment and evaluation, DCFS concluded that, since November of 2009,
mother had been “offered 9 months of voluntary services through DCFS and ha[d] failed
to comply with drug testing, substance abuse recovery and other services for the entire 9
months. . . . [Mother] . . . continued to make false promises and insist[ed] that she [wa]s
being treated unfairly by [DCFS] despite multiple efforts and interventions from DCFS
and Family Preservation to assist . . . with her addiction and mental health issues.” DCFS
recommended that the juvenile court declare the child a dependent of the court and
provide reunification services, including “random drug testing, inpatient substance abuse
treatment and individual counseling to address mental health and domestic violence
issues.”
A jurisdictional hearing was held on September 1, 2010, but the mother failed to
attend. Although the court allowed three continuances, mother failed to attend any of the
hearings. At a hearing on October 7, 2010, mother’s attorney reported that he had
provided mother oral and written notice of the hearing and was unsure of her
whereabouts. The attorney requested one final continuance, but the trial court denied the
request, explaining that mother had “many opportunities and has been given notice
before.”
After receiving the detention and jurisdictional reports, the court ruled that “the
petitioner ha[d] met their burden by a preponderance of evidence as to mother. B-1, B-2
of the petition will be found to be true as sustained.” The court declared the child a
dependent of the court and ordered mother to complete “a drug rehabilitation program
with random testing, weekly;” “a parenting education course”; “individual counseling to

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deal with mental health issues” and “domestic violence” counseling. The court declined
to provide the child’s father reunification services because DCFS had been unable to
locate him.4 The court allowed mother three monitored visits per week and set a six-
month reunification review hearing pursuant to section 366.21, subdivision (e).

D. Interim Status Hearings
1. Section 366.21, subdivision (e) six-month review hearing
On April 1, 2011, DCFS provided a status report for the six-month review hearing.
The report stated that mother had been incarcerated in October of 2010 and had remained
in custody until March of 2011. While in prison, mother had “sought out programs to
help her complete with Court orders.” However, following her March release, mother
had not “enroll[ed] in any Court ordered programs.” DCFS reported that although
mother displayed “emotions in regards to her . . . case[,] . . . she ha[d not] address[ed]
these issues formally in therapy” and continued to behave in a disrespectful manner when
visiting the maternal grandparents’ home.
DCFS also reported that Raymond, then three-years-old, was developmentally
“on-track”, “very smart” and “loved to talk.” Although the maternal grandparents took
the child to visit his mother in prison every other week, the visits caused the child to cry
and have “difficulty sleeping.” After the visits, the child would “state that . . . mommy
didn’t love him or want[] to be with him.”
To address these issues, the child began receiving “in-home therapy” in March of
2011. The in-home therapist informed DCFS that the child was “not doing well . . .
because he has separation anxiety and is in a frenzy from his mother being in and out of
his life so often.” The therapist further reported that, following her release from prison,
mother frequently visited the child in the maternal grandparents’ home. According to the
therapist, however, the visits were “not . . . very strong” because mother “w[ould] come

4 The DCFS provided the court a declaration of due diligence report summarizing
the efforts it had taken to locate the father and confirming that it had been unable to
determine his whereabouts. The father has not participated in any portion of the
dependency proceedings and is not a party to this appeal.

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to the house and talk on the phone and not devote all of her attention to her son.” DCFS
observed several of these in-house visits and concluded that mother and child appeared to
“have a strong bond” and that mother displayed a “loving [attitude] towards [the child.]”
DCFS conducted a risk assessment that “yielded results of very high” and
recommended that the court order “6 additional months of Family Reunification
Services.” The court entered an order continuing jurisdiction over the child and leaving
the case plan in effect.

2. July 2011 interim report
On July 6, 2011, DCFS filed an “Interim Status Report” informing the court that,
on May 20, 2011, a TDM was held to “address visitation issues and [mother’s] lack of
compliance with the case plan.” Although mother was informed of the meeting and was
offered transportation, she did not attend. At the TDM, it was decided that mother would
be “referred to additional in-patient rehabilitation programs” after having been discharged
from her current program “for lack of participation.” The report indicated that, since
April, mother “ha[d] remained homeless and [wa]s . . . not participating in any of Courts
orders.” DCFS met with mother and offered to enroll her in a rehabilitation program
in Pomona. Mother became “upset,” stated that DCFS could not “make her” attend an
out-patient program and “stormed out of the building.”
DCFS also reported that mother’s “visitation [rights] had been changed . . . due to
an incident that took place at the home in which [mother] threatened to kill her younger
special needs sister and physically attacked her.” DCFS reported that this behavior was
consistent with other “violent outbursts” it had observed, which frequently “occur[red] in
the presence of the child.” After the incident with mother’s sister, DCFS required that
the visits occur in a nearby park. However, “the visits at the park . . . also resulted in
angry outbursts and [mother] becoming very emotional and crying and screaming at end
of the visits which upset [the child].” At the TDM, it was decided that the visits should
occur at the DCFS office, under the supervision of a social worker. A DCFS social
worker had monitored three in-office visits and was “constantly” forced to tell mother

9
“that she is not to become emotional in front of her son as he starts crying and has a
difficult time.”
In its assessment and evaluation, DCFS concluded that mother had “declined
severely since her release from jail.” Although mother denied using drugs, she exhibited
signs of methamphetamine abuse, including scabs on her face and dark circles under her
eyes. Mother also displayed extreme “mood swings” and “highly irregular” behavior that
included “violent and unpredictable” outbursts. According to DCFS, mother “d[id] not
display a desire to stop using drugs and claim[ed] to not be using drugs . . . Further she
ha[d] failed to provide any drug tests to [DCFS,] . . . was terminated from her substance
abuse program due to her lack of participation” and remained “out of compliance with
her Court ordered case plan.” DCFS requested that the court issue a restraining order
prohibiting mother from the maternal grandparents’ residence and recommended that it
terminate reunification services and set a section 366.26 hearing for termination of
parental rights.
At the status hearing, which the mother did not attend, the child’s maternal
grandparents confirmed that they were willing to adopt the child. The court ordered
DCFS to initiate an adoptive home study on the grandparents and required that all future
visits between mother and child occur at a DCFS office. A twelve-month permanency
hearing was set for October 7, 2011. (See § 366.21, subd. (f).)

3. Section 366.21, subdivision (f) permanency hearing
On October 7, 2011, DCFS provided a status review report for the 12-month
permanency hearing. DCFS stated that, since July, mother had been arrested again and
was temporarily placed in jail. In addition, mother had broken into the maternal
grandparents’ house again in August; in mid-September, “the family was forced to call
the police to remove [mother] from their property.” The maternal grandmother reported
that she occasionally saw mother “away from the family home” and suspected that she
was homeless and “using.” Mother had not visited the child or contacted DCFS for
almost three months.

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 As the child, DCFS reported that Raymond was “thriving in the home of maternal
grandparents . . ., attending daycare daily and . . . doing well there. . . . [H]e makes
friends easily and is well behaved.” The child’s in-home therapist reported that the child
was “making good progress and . . . adapting well in his grandparents home.” DCFS
stated that although it had not completed its adoption home study, it was apparent that the
grandparents “love[d] Raymond very much . . . and have cared for him in their home
since he was born. They are attached to him and are committed to meeting his needs on a
permanent basis through adoption. . . . [He] turns to his grandparents for love and
support.”
DCFS concluded that mother had made little if any progress since the July status
report, explaining: “[mother] has had 12 months to reunify with her son, she shows no
insight to the issues that brought her to the attention of the Department and displays
paranoia and erratic behavior. . . . [T]he Department believes [mother] will continue to be
uncooperative and disruptive to her son and at this time a permanent adoptive plan is
more appropriate for the [child].”
At the 12-month reunification review hearing, which occurred on November 2,
2011, mother’s attorney announced that mother, who was not in attendance, had
completed a “detox program” and was “currently in a residential treatment program.”
The court set a contested 18-month permanency review hearing for January 18, 2011.
(See § 366.21. subd., (g)(1).)

4. Section 366.21, subdivision (g) 18-month permanency review hearing
On January 5, 2012, DCFS submitted a status report for the 18-month permanency
hearing stating that mother had admitted herself to the “American Recovery Center” in
October of 2011 and completed a one-month detoxification from methamphetamine use.
Mother intended to remain at the center for three more months and then “transition into a
sober living home.” During an interview in December of 2011, mother told DCFS she

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had “cleared up” a warrant issued in September related to methamphetamine.5 According
to the social worker, mother looked “healthier and appeared to be sober,” but had still
failed to obtain a court-ordered “730 [mental] evaluation.”6
DCFS also submitted a letter from the American Recovery Center stating that
mother “appear[ed] motivated for treatment” and had made “more than adequate
progress.” The letter reported that mother was actively participating in treatment, had
“proven to be a responsible person” and “appear[ed] sincere regarding her desire to
parent her son.” The letter also stated that mother’s drug tests had all been negative and
that she had “completed addiction education, rational thinking, relapse prevention anger
management, seeking safety and more.”
Following her detoxification program, mother had begun having weekly,
monitored visits with the child at the recovery center. The maternal grandparents
reported that although mother was “appropriate during [these] visits for the most part,”
she occasionally “display[ed] irrational behavior.” The grandparents explained that,
during a recent birthday party for Raymond, mother “left . . . in tears with [the child] in
her arms because she was upset that maternal grandmother had purchased a similar gift.”
Mother requested unmonitored visits with the child, but DCFS denied the request because
it believed her “behavior remain[ed] irrational and unpredictable.”
As to Raymond, DCFS reported that the child continued to “do[] well in the
[grandparents’] home and [wa]s bonded to caregivers.” The grandparents told DCFS that
the child was “doing much better,” was “happy” and had no problems with eating or
sleeping. His in-home therapy, which had begun in March of 2011, was terminated in
December. The child’s therapist provided a letter explaining that Raymond had “initially
presented with anxiety symptoms related to his experience of child endangerment. He

5 During an interview in October of 2011, the maternal grandmother told DCFS that
mother “had a warrant out for her arrest” and that detectives had “come to the home
looking for her.” The maternal grandmother suspected that mother had entered the
rehabilitation program “to avoid getting ar[r]ested.”

6 Evidence Code section 730 permits a trial court to appoint an expert to investigate,
render a report, and testify to a matter for which expert evidence is required.

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demonstrated poor affect regulation, was preoccupied with concern that his mother might
not love him, and feared being separated from his caregivers.” During Raymond’s nine
months of therapy, the maternal grandparents were “coached to identify ways to soothe
[the child] and create an emotionally and physically safe environment for the child. . . .
Roles of his various family members were clarified in order to ensure that child
attachment needs were met. . .” The therapist asserted that Raymond’s “individual
treatment needs ha[d] been met” and that he was now “much less anxious and
preoccupied with concerns about his mother’s love, and has secure relationships with
family members who meet his social emotional and developmental needs.”
In its assessment and evaluation, DCFS stated that although mother had “been in
rehabilitation for 3 months, [the Department] remained concerned that [she] had 18
months to receive services and[,] once released from jail, . . . waited too long to begin
receiving services and instead of going to a rehab program . . . she began to use again
and bounced from friends home to friends home.” DCFS also believed mother’s
behavior “remain[ed] erratic and unpredictable,” noting that she still “act[ed] out in front
of her son . . . which [wa]s upsetting to him.” DCFS also expressed concern that mother:
continued to “display paranoia [that her family] [was] trying to take the minor from her”;
“t[ook] no responsibility for the circumstances that brought her into the Court”; blamed
her drug use on the fact that her child was removed from her custody; and had not
explained where she intended to go after being released from the rehabilitation program.
In light of these concerns, DCFS recommended that the court terminate reunification
services and set a section 366.26 hearing.
At the 18-month review hearing, the juvenile court indicated that it was
“inclined to terminate reunification services” because the child had been detained for “18
months . . . and [mother has] just been in the inpatient for three months.” DCFS argued
that termination was appropriate given that mother had been in several “prior programs
and failed them.” It further asserted that although mother was “complying now with the
order for drug treatment,” she had failed to comply with “mental health and domestic
violence” services.

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 Mother’s attorney, however, argued that she should be provided additional time to
reunify, stating: “the fact that 18 months has passed isn’t necessarily relevant when she’s
doing exceptionally well now, and she’s working her programs. So I would ask the court
to reconsider [its] tentative and provide the mother with additional time to reunify.”
The court terminated reunification services and set the matter for a section 366.26
hearing, explaining: “I think granting the mother further reunification services is punitive
to this four-year-old child . . . The mother has repeatedly failed programs and to find now
that she is in an inpatient program for three months that there’s any likelihood of it being
different this go-round because its inpatient versus outpatient is a fallacy and would be
punitive to the child to delay permanence.”

E. Mother’s Section 388 Petition and the Section 366.26 Hearing
1. Section 366.26 hearing report
On April 27, 2012, DCFS filed a report for the section 366.26 hearing. In
assessing Raymond, DCFS concluded that child was “happy,” “talkative, “active” and
“very comfortable with his caregivers,” who he “s[aw] . . . in the role of parents.” DCFS
reported that Raymond was “the only minor child in a home with four adults and
therefore gets a lot of attention and has all of his basic needs met. He appears well
adjusted and comfortable in the home and with his caregivers. He was reported to have
healthy eating and sleeping habits and does not exhibit emotional or behavior problems.”
DCFS also reported that “[t]he minor ha[d] resided in the ‘caretakers] home since he was
born. They . . . love him very much [and] . . . want to adopt him so that there is not a
chance that he would be able to be placed anywhere else. They expressed that the
minor’s life comes first in the home now.”
As to the mother, the report stated that she had been released from her in-patient
drug program in March of 2012 and had begun visiting her son on a daily basis. The
grandparents reported that “[t]he visits ha[d] gone well without incident and mother is
always appropriate with Raymond.” Although the child was aware that mother was his
“birth mother . . ., [his grandparents] ha[d] always been the [child’s] main caregivers.”

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 DCFS concluded that the maternal grandparents “continue to adequately meet [the
child’s] needs and have his best interest at heart. Their home study has been approved
and they are ready to proceed with the permanent plan of adoption.” DCFS
recommended that the mother’s parental rights be terminated and that “adoption remain
the permanent plan of the child.”

2. Mother’s section 388 petition and the section 366.26 hearing
On the morning of the section 366.26 hearing, mother filed a section 388 petition
requesting that the court modify its prior order terminating reunification services based
on changed circumstances. In describing the “changed circumstances” that justified a
modification, mother’s petition stated: “I started working I finished my program and my
parenting certificate. I have my own place and I am still complying with orders.” The
petition also asserted that reinstituting reunification services would be beneficial to
Raymond because “I am his mother and I believe I have changed and done everything
asked of me in order to be with my child again. And I will never give up.” The petition
was unaccompanied by any additional evidence.
At the beginning of the section 366.26 hearing, the court noted that mother had
filed a petition “asking for the court to reinstate reunification services.” The court stated
that it had denied “a hearing on the 388 based upon the fact that it did not promote the
best interest of the child. The mother still has unmonitored visits after two years and also
that there’s no legal basis to reinstate [family reunification] at a [section 366.26]
hearing.” A subsequent written order confirmed the court’s oral ruling, indicating that
the section 388 petition had been denied for three reasons: (1) “the propose[d] change of
order . . . does not promote the best interest of the child; (2) “no legal basis to reinstate
[family reunification] at [a section 366.26 hearing]; and (3) “mother still has monitored
visits after 2 years.”
After ruling on the section 388 petition, the court proceeded with the section
366.26 hearing. The mother testified that, during her visits with Raymond, they normally
“played”; “watched movies sometimes” and “just spent a lot of quality time together . . .

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as much as we could.” The court asked mother to describe what activities she did with
the child that she “consider][ed] to be a parental role[.]” Mother explained that she was
“involved in his life or was able to tell him what’s wrong, what’s right . . . . I would ask
him to count for me. . . . I always asked him to sing his A.B.C’s and just go over the
simple things that he is learning in school right now.” Mother also stated that, after being
released from the recovery center, she visited the child for several hours most days of the
week and all day on the weekends. Her weekend activities with the child included
“play[ing] outside”, “swimming” and “eat[ing].” Mother also stated that the maternal
grandparents allowed her to give Raymond baths at their home and kept her up to date on
how the child was performing in school. Finally, mother stated that although her parents
had “pottie trained” the child, she “was there” when some of the training occurred.
During DCFS’s cross-examination, mother admitted that since being released from
the recovery center, she had stopped attending narcotics anonymous and alcoholic
anonymous. She also admitted that she had recently been laid off.
After mother completed her testimony, her attorney argued that her parental rights
should not be terminated because the evidence showed she was “exercising a parental
role with [the child] . . . She’s very aware of [his] schooling. She anticipates [sic] in the
A.B.C’s and number counting with Raymond. . . . She is very aware of how Raymond is
doing currently in preschool. She does check up with the grandparents to make sure
Raymond is progressing properly and also addresses all the behavioral issues that
Raymond has in the preschool.”
Raymond’s attorney, however, stated that she was “aligned” with DCFS’s
recommendation to terminate parental rights. The attorney explained that “although
mother had made great progress . . . [and] maintained consistent contact, I do have
concerns about mother’s stability and what this means for Raymond. Mother testified
that although she did get laid off in May. . . [and] hasn’t continued attending meetings.
I think that due to Raymond’s young age, it is very important for him to remain stable,
and he has remained stable with his grandparents for the last two years.” DCFS agreed,

16
arguing that “mother hasn’t met the exception to adoption in this case. She visits with
Raymond, but . . . she doesn’t have the parental responsibility for him. It’s her parents.”
The court terminated parental rights and selected adoption as the child’s
permanent plan. The court explained that although mother had “clearly maintained
regular and consistent visitation and contact, and . . . even has taken on a parental role
during much of those visits . . . the problem is that when it gets to balancing whether the
extent of the mother’s parental role and relationship outweighs the benefits in
permanence of adoption.”
The mother appealed the trial court’s orders denying her section 388 petition and
terminating her parental rights.

DISCUSSION

Mother raises two issues in this appeal. First, she contends that the trial court
erred in denying a hearing on her section 388 petition. Second, she contends that the
evidence demonstrates the existence of “a beneficial [parental] relationship . . . which
would prevent the termination of her parental rights.”

A. The Trial Court Did Not Abuse its Discretion When it Denied the Section
388 Petition Without a Hearing

Mother argues that the trial court erred when it denied her section 388 petition
without holding an evidentiary hearing. We review this decision for abuse of discretion.
(In re Angel B. (2002) 97 Cal.App.4th 454, 460 (Angel B.); In re Anthony W. (2001) 87
Cal.App.4th 246, 250 (Anthony W.) [“We review the juvenile court’s summary denial of
a section 388 petition for abuse of discretion”].)
1. Summary of applicable law
Section 388 provides, in relevant part: “(a) Any parent or other person having an
interest in a child who is a dependent child 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 of the juvenile court . . . for a hearing to

17
change, modify, or set aside any order of court previously made or to terminate the
jurisdiction of the court. The petition shall . . . set forth in concise language any change
of circumstance or new evidence which are alleged to require the change of order or
termination of jurisdiction. . . . [¶] (d) If it appears that the best interests of the child . . .
may be promoted by the proposed change of order, . . ., the court shall order that a
hearing be held . . .”
Under section 388, “[t]he parent seeking modification must ‘make a prima facie
showing to trigger the right to proceed by way of a full hearing. [Citation.]’ [Citation.]
There are two parts to the prima facie showing: The parent must demonstrate (1) a
genuine change of circumstances or new evidence, and that (2) revoking the previous
order would be in the best interests of the children. [Citation.].” (Anthony W., supra, 87
Cal.App.4th at p. 250.) Although “the petition should be liberally construed in favor of
granting a hearing to consider the parent’s request, . . . [¶] if the liberally construed
allegations of the petition do not make a prima facie showing of [both elements], the
court need not order a hearing on the petition. [Citations.] The prima facie requirement
is not met unless the facts alleged, if supported by evidence given credit at the hearing,
would sustain a favorable decision on the petition.” (In re Zachary G. (1999) 77
Cal.App.4th 799, 806 (Zachary G.).)
“Conclusory” allegations are insufficient to establish a prima facie showing.
(Anthony W., supra, 87 Cal.App.4th at p. 250.) Rather, the parent must provide “‘specific
allegations describing the evidence constituting the proffered changed circumstances or
new evidence. . . .’ [Citation.] Successful petitions have [generally] included
declarations or other attachments which demonstrate the showing the petitioner will make
at a hearing of the change in circumstances or new evidence.” (Ibid.) When assessing a
section 388 petition, the juvenile court may consider the entire factual and procedural
history of the case. (In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.)

18
 2. Mother failed to make a prima facie showing that reinstating
reunification services would be in the best interests of the child

The trial court summarily denied mother’s section 388 petition because she failed
to make a prima facie showing on the second element. Specifically, the court found that
mother had failed to make a prima facie showing that reinstating reunifications services
would be in the best interests of the child.7
“Whether [m]other made a prima facie showing entitling her to a hearing depends
on the facts alleged in her petition, as well as the facts established as without dispute by
the court’s own file (e.g., [the child’s] age, the nature of her existing placement, and the
time she came into care as a dependent child).” (Angel B., supra, 97 Cal.App.4th at
p. 461.) The mother’s petition asserts that modifying the court’s termination of
reunification services would be in the best interest of the child because “I am his mother
and I believe I have changed and done everything asked of me in order to be with my
child again. And I will never give up.” The petition does not include any declarations or
other forms of evidence that expand on these conclusory assertions, nor does it cite to any
evidence in the record.
The juvenile court’s file shows that Raymond was only two-years old when he
was detained from mother and placed in the custody of the maternal grandparents.
During the two years that passed between the child’s detention and the section 366.26

7 Mother argues that we should reverse the denial of the section 388 petition
because the court erroneously concluded that it did not have authority to reinstate
reunification services at a section 366.26 hearing. In support, mother cites language from
the court’s denial order stating: “no legal basis to reinstate [family reunification] at a
[section 366.26] hearing.” Mother contends that because a juvenile court may, upon a
proper evidentiary showing, grant a section 388 petition at a 366.26 hearing, we must
reverse and remand for reconsideration. We find no merit in this argument under the
circumstances in this case. The court’s oral ruling at the section 366.26 hearing and its
subsequent written order made clear that the primary reason it denied the petition was
because mother had failed to demonstrate that modification would “promote the best
interests of the child.” This was a proper basis for denial. (See Anthony W., supra, 87
Cal.App.4th at p. 251 [affirming denial of full hearing where “mother’s petition d[id] not
demonstrate how a change in the order would be in the best interest of these children”].)
Accordingly, even if the court erred as to the other ground, there is no basis to reverse.

19
hearing (July 2010-July 2012), mother was incarcerated for five months (October 2010 to
March 2011) and did not visit the child or contact DCFS for an additional three months.
In March of 2011, the child’s therapist indicated that “he was not doing well” and
suffered from anxiety caused, in part, by mother “being in and out of his life.” After
several months under the care and custody of the maternal grandparents, however, the
child became “much less anxious and preoccupied with concerns about his mother’s
love” because he had developed “secure relationships with family members who meet his
social emotional and developmental needs.” Although the record indicates that mother’s
visits became more consistent and meaningful after she became sober, she never had
unmonitored visits.
DCFS reported that Raymond was “thriving in the home of maternal
grandparents” and saw them “in the role of parents.” DCFS also reported the maternal
grandparents “love[d] Raymond very much . . . and have cared for him in their home
since he was born. They are attached to him and are committed to meeting his needs on a
permanent basis through adoption. . . .”
In Angel B., supra, 97 Cal.App.4th 454, the court affirmed the summary denial of
a section 388 petition under similar circumstances. The parent in Angel B. had a “long
history of drug abuse” and had “tried to rehabilitate herself, without permanent success,
on a number of occasions.” (Id. at p. 459.) After the juvenile court terminated the
parent’s reunification services, “[s]he enrolled in a residential drug treatment program,
consistently tested clean for four months, completed various classes, and even obtained
employment. She had regular visits with [the child], which went well. As a result, she
petitioned the juvenile court pursuant to section 388 to either grant her supervised
custody of [the child], or grant her reunification services.” (Ibid.)
The petition was accompanied by a declaration providing information about the
mother’s rehabilitation program, the nature of her completed individual counseling, her
future employment plans and the frequency and quality of her visits with her child. The
juvenile court, however, “summarily denied the petition without an evidentiary hearing,

20
and thereafter her parental rights were terminated.” (Angel B., supra, 97 Cal.App.4th
454.)
The appellate court affirmed the summary denial based, in part, on mother’s
failure to demonstrate that modification would be in the best interests of the child. The
court explained that, after reunification services have been terminated, “there is a
rebuttable presumption that . . . stability in an existing placement is in the best interest of
the child, particularly when such placement is leading to adoption by the long-term
caretakers. To rebut that presumption, a parent must make some factual showing that the
best interests of the child would be served by modification.” (Angel B., supra, 97
Cal.App.4th at p. 465.)
The court concluded that mother’s petition had failed to allege any such facts:
“The facts presented by the . . . petition show that [m]other is doing well, in the sense that
she has remained sober, completed various classes, obtained employment, and visited
regularly with [the child]. In addition, we shall assume, for the sake of this appeal, that
this time her resolve is different, and that she will, in fact, be able to remain sober, remain
employed, become self-supporting and obtain housing. Even so, such facts are not
legally sufficient to require a hearing on her section 388 petition.” (Angel B., supra, 97
Cal.App.4th at pp. 464-465.)
The court also noted that it would have been extremely difficult for mother to
make a prima facie showing that reinstatement of services would be in the child’s best
given that the adoptive parents had raised the child since infancy: “The [caretakers]
clearly, by deed if not by name, were [the child’s] parents. They, not [m]other, provided
[the child] with all the day-to-day, hour-by-hour care needed by a helpless infant and then
growing toddler. Thus, although [m]other’s petition states that she has bonded with [the
child], and that [the child] is happy to see her and reaches for her on their visits, such
visits, in total, add up to only a tiny fraction of the time [the child] has spent with the
foster parents. . . . .[¶] Perhaps if [the child] were not adoptable and [m]other was the
only mother-figure in [the child’s] life, and [the child’s] only hope of having a family in
the future, the result might be different. [Citation.] But those are not the facts presented

21
here. . . . [T]he juvenile court did not abuse its discretion by denying the section 388
petition with no hearing.” (Angel B., supra, 97 Cal.App.4th at p. 465.)
This case shares many similarities with Angel B. The record indicates that mother
had a drug abuse problem for many years and was “unable to remain sober even when the
stakes involved . . . the loss of [custody] of her . . . child.” (Angel B., supra, 97
Cal.App.4th at p. 463.) Raymond has spent his entire life in the home of the maternal
grandparents, who served as his primary caretakers even before he was detained from
mother. According to Raymond’s therapist, the child has benefitted greatly from the
stability that his grandparents have provided.
Although mother has made significant improvements since she became sober,
these improvements came only after the termination of reunification services. Moreover,
mother did not file her section 388 petition until “the eve of the section 366.26
permanency planning hearing,” at which point “the child[’s] interest in stability was the
court’s foremost concern.” (See In re Edward H., (1996) 43 Cal.App.4th 584, 594
[affirming summary denial of section 388 petition filed “on the eve of the section 366.26
permanency planning hearing” because “at [that] point in the proceedings . . . the
children’s interest in stability was the court’s foremost concern and outweighed any
interest in reunification”].)
In sum, the trial court did not abuse its discretion in concluding that the vague and
conclusory statements in the mother’s petition, considered in conjunction with evidence
in the record, did not establish a prima facie showing that the child would benefit from
reinstating reunification services.

B. Substantial Evidence Supports the Juvenile Court’s Finding that Mother Did
Not Have a “Beneficial Parental Relationship”

Mother also argues that the juvenile court erred when it failed to apply the
“beneficial parental relationship exception” to avoid the termination of her parental
rights. (See § 366.26, subd. (c)(1)(B)(i).)

22
 1. Statutory framework and standard of review
“‘Once reunification services are ordered terminated, the focus shifts to the needs
of the child for permanency and stability.’ [Citation.] ‘A section 366.26 hearing . . . is a
hearing specifically designed to select and implement a permanent plan for the child.’
[Citation.] It is designed to protect children’s ‘compelling rights . . . to have a placement
that is stable, permanent, and that allows the caretaker to make a full emotional
commitment to the child.’ [Citation.]” (In re Celine R. (2003) 31 Cal.4th 45, 52-53
(Celine R.).)
At the section 366.26 stage of a dependency proceeding, adoption is the preferred
choice. (Celine R., supra, 31 Cal.4th at p. 49; § 366.26, subds. (b) & (c).) “If it is likely
the child will be adopted, the court must choose that option–and as a result terminate the
natural parents’ parental rights–unless it ‘finds a compelling reason for determining that
termination would be detrimental to the child due to one or more’ of [several] specified
[statutory] circumstances.’ [Citation.]” (Celine R., supra, 31 Cal.4th at p. 49; (§ 366.26,
subd. (c)(1)(B).).) These “specified statutory circumstances–actually, exceptions to the
general rule that the court must choose adoption where possible–‘must be considered in
view of the legislative preference for adoption when reunification efforts have failed.’
[Citation.].” (Id. at p. 53.)
Section 366.26, subdivision (c)(1)(B)(i) establishes an exception to the adoption
preference where the court finds, by substantial evidence, that “[t]he parents . . . have
maintained regular visitation and contact with the child and the child would benefit from
continuing the relationship.” “The ‘benefit’ prong of the exception requires the parent to
prove his or her relationship with the child ‘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.’ [Citations.]” (In re K.P. (2012) 203 Cal.App.4th 614, 621
(K.P.).) “A biological parent who has failed to reunify 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.
[Citation.]” (Angel B., supra, 97 Cal.App.4th at p. 466.) “No matter how loving and

23
frequent the contact, and notwithstanding the existence of an ‘emotional bond’ with the
child, ‘the parents must show that they occupy ‘a parental role’ in the child’s life.’
[Citations.]” (K.P., supra, 203 Cal.App.4th at p. 621.) “That showing [is] difficult to
make in the situation . . . where the parents have . . . [not] advanced beyond supervised
visitation.” (In re Casey D. (1999) 70 Cal.App.4th 38, 51.)
“Moreover, ‘[b]ecause a section 366.26 hearing occurs only after the court has
repeatedly found the parent unable to meet the child’s needs, it is only in an extraordinary
case that preservation of the parent’s rights will prevail over the Legislature’s preference
for adoptive placement.’ [Citation.]” (K.P., supra, 203 Cal.App.4th at p. 621.)
On appeal after a court has rejected a parent’s effort to establish the exception, two
different standards of review apply. (See K.P., supra, 203 Cal.App.4th at pp. 621-622;
In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314 (Bailey J.).) Since the parent must
first show the existence of a beneficial parental relationship, which is a factual issue, we
uphold a court’s express or implied finding that there is no beneficial relationship if
supported by substantial evidence.8 (See K.P., supra, 203 Cal.App.4th at p. 621.;
Bailey J., supra, 189 Cal.App.4th at p. 1314).) More specifically, a challenge to a court’s
failure to find a beneficial relationship amounts to a contention that the “undisputed facts
lead to only one conclusion.” (In re I.W. (2009) 180 Cal.App.4th 1517, 1529.) Thus,
unless the undisputed facts establish the existence of a beneficial parental relationship, a
substantial evidence challenge to this component of the juvenile court’s determination
cannot succeed. (Bailey J., supra, 189 Cal.App.4th at p. 1314.)
The second requirement for the exception is that the beneficial parental
relationship constitute a “compelling reason for determining that termination would be

8 The juvenile court’s statements at the section 366.26 hearing indicate that it found
that mother had failed to establish the existence of a beneficial parental relationship
within the meaning of Section 366.26, subdivision (c)(1)(B)(i). Although the court noted
that the mother had recently maintained regular visitation and engaged in some activities
that were consistent with a parental role, it concluded that she had failed to show that “the
extent of the [her] parental role and relationship outweighs the benefits in the permanence
of adoption.” (See K.P., supra, 203 Cal.App.4th at p. 621.)

24
detrimental.” (§ 366.26, subd. (c)(1)(B); K.P., supra, 203 Cal.App.4th at p. 622.)
Although grounded in the facts, the court’s determination on this issue is a
“‘quintessentially’ discretionary decision, which calls for the juvenile court to determine
the importance of the relationship in terms of the detrimental impact that its severance
can be expected to have on the child and to weigh that against the benefit to the child of
adoption. [Citation.] Because this component of the juvenile court’s decision is
discretionary, the abuse of discretion standard of review applies.” (Bailey J., supra, 189
Cal.App.4th at p. 1315; see also K.P., supra, 203 Cal.App.4th at p. 622.)

2. The trial court’s finding that there was no parental relationship is
supported by substantial evidence

The juvenile court’s finding that mother failed to establish the existence of a
beneficial parental relationship is supported by substantial evidence. Some of the factors
that are “considered when looking for whether a relationship is important and beneficial
are: (1) the age of the child, (2) the portion of the child’s life spent in the parent’s
custody, (3) the positive or negative effect of interaction between the parent and the child,
and (4) the child’s particular needs.” (Angel B., supra, 97 Cal.App.4th at p. 467.)
The record shows that Raymond was detained from mother when he was only two
years old and has spent nearly half his life in the legal custody of his maternal
grandparents. Even prior to the child’s detention, the maternal grandparents had served
as his “main caregivers” and had “been caring for him since he was born.” The child
spent his entire life in the grandparents’ home and “s[aw them] in the role of parents.”
The record also contains evidence that mother’s interactions with Raymond
frequently had a negative effect on the child. On numerous occasions, mother became
“angry” or “emotional” during her visits, which “upset” the child. DCFS reported that,
even after detoxifying from methamphetamine, mother continued to “act out in front of
her son . . . which [wa]s upsetting to him.”

25
 Although the quality of mother’s visitations improved following the completion
of her drug treatment program, she never “advanced beyond supervised visitation.” (See
In re Jeremy S. (2001) 89 Cal.App.4th 514, 523 (Jeremy S.) [establishing parental
relationship exception difficult “where the parents have . . . [not] advanced beyond
supervised visitation”] [overruled on other grounds In re Zeth S. (2003) 31 Cal.4th 396,
413-414].)
In March of 2011, Raymond’s therapist reported that the child was suffering from
“anxiety” caused by “his mother being in and out of his life so often,” was “preoccupied
with concern that his mother might not love him” and “feared being separated from his
caregivers.” The child’s condition greatly improved under the care of the maternal
grandparents, who provided a “secure relationship” that the child was previously lacking.
Finally, the mother has pointed to no evidence indicating that the child “has any
particular needs that can be met by [m]other but not by the [adoptive maternal
grandparents].” (Angel B., supra, 97 Cal.App.4th at p. 468 [mother’s failure to identify
any needs that could not be met by adoptive parents supported juvenile court’s finding
that the parental relationship exception did not apply].) The DCFS reports make clear
that Raymond has thrived under the care of his maternal grandparents, who have “done
an excellent job of meeting the minor’s needs” and are “committed to meeting his needs
on a permanent basis . . . .” Considered collectively, this evidence supports the juvenile
court’s finding that no sufficient parental relationship existed between the mother and the
child.
Mother, however, contends that the undisputed evidence shows that she did in fact
play “a parental role” in Raymond’s life. In support, she relies on evidence showing that,
during her monitored visits, she would “play with [the child], spend quality time with
him, teach him right from wrong, to count, sing his ABC’s and go over what he was
learning in school. ” She also cites evidence showing that she would “go swimming with
him, . . , play puzzles . . . bathe him” and “was well informed of [his] activities.”
Additional evidence in the record indicates that mother had a “strong bond” with the
child and displayed a “loving [attitude] towards” him.

26
 However, to meet the burden of proving that the beneficial relationship exception
applies, “the parent must show more than frequent and loving contact, an emotional bond
with the child, or pleasant visits.” (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.)
“One can know a child’s interests, enjoy playtime together, and be a loved relative, but
not occupy a parental role in the child’s life.” (Jeremy S., 89 Cal.App.4th at p. 523.) For
the exception to apply, the parent must show that the “child’s relationship . . .
transcend[s] the kind of relationship the child would enjoy with another relative or family
friend.” (Ibid.) Although the evidence in the record suggests that mother acts lovingly
toward Raymond and that the child may derive some benefits from their time together,
mother has failed to present any evidence that the relationship has advanced to the point
of “meet[ing] the child’s need for a parent.” (In re Aaliyah R. (2006) 136 Cal.App.4th
437, 449 [exception does not apply where “the natural parent has maintained a
relationship that may benefit the child to some degree but does not meet the child’s need
for a parent”].)9

DISPOSITION

The juvenile court’s orders are affirmed.

ZELON, J.
We concur:

WOODS, Acting P. J. JACKSON, J.

9 Because we conclude that substantial evidence supports the trial court’s finding
that there is no beneficial parental relationship, we need not address “[t]he second
determination in the exception analysis,” which “is whether the existence of [a beneficial]
relationship . . . constitutes ‘a compelling reason for determining that termination would
be detrimental to the child.’ [Citation.]” (K.P., supra, 203 Cal.App.4th at p. 622.)

27