Filed 11/15/13 In re Olivia V. CA4/3

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re OLIVIA V., a Person Coming Under 

the Juvenile Court Law.

ORANGE COUNTY SOCIAL SERVICES 

AGENCY,

 Plaintiff and Respondent,

v.

S.V.,

 Defendant and Appellant.

 G048235

 (Super. Ct. No. DP019167)

 O P I N I O N 

Appeal from a judgment of the Superior Court of Orange County, Gary 

Bischoff, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Pamela Rae Tripp, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Julie 

J. Agin, Deputy County Counsel, for Plaintiff and Respondent.
2

S.V. (Mother) appeals from a judgment terminating her parental rights with 

respect to her four-year-old daughter Olivia. She contends the juvenile court erred in 

denying her request for an evidentiary hearing on her petition for modification and by 

failing to apply the so-called “benefit exception” to termination. Finding these 

contentions unmeritorious, we affirm the judgment. 

FACTS

Mother has a history of substance abuse, mental illness and drug-related 

criminal activity. In November 2009, she was jailed for violating probation after testing 

positive for methamphetamine and failing to comply with her mental health treatment 

plan. Olivia’s father was also in jail, so Olivia and her three siblings were detained and 

placed in protective custody. At that time, Olivia was 8 months old, and her sisters 

Melissa, E. and Haley were 16, 13 and 7 years old, respectively.1 

On December 23, 2009, Olivia was placed in the foster home of Maria and 

Jorge M. A reunification plan was established for Olivia’s family, and over the next 14 

months, Mother made good on the plan. Upon her release from prison, she moved into a 

recovery home, completed a drug program and received treatment for her mental illness 

(drug-induced psychosis and depression). She also worked two jobs, visited Olivia 

regularly and tested clean on all of her drug tests. Accordingly, on March 29, 2011, the 

juvenile court returned all of the children to her care under a family maintenance plan. 

At that time, Olivia was two years old. 

As a single, working mother of four, Mother looked to her oldest child 

Melissa, who was then 18 years old, for help with the other children. Mother also relied 

on Maria and Jorge to care for Olivia when she was at work. Having already spent over a 

year living with Maria and Jorge, Olivia was bonded to them and comfortable in their 

 

1 E. and Olivia are Mother’s biological children, and Melissa and Haley were adopted by Mother 

after her sister’s parental rights over them were terminated. Although Olivia’s siblings and her father are not parties 

to this appeal, they will be referred to as needed to explain the facts of this case. 
3

care. Mother also received special services through the “Wraparound” program, because 

Haley had severe emotional and behavioral problems. 

Despite everyone’s efforts, Mother began to feel overwhelmed. She

managed to move the family into a three-bedroom house and was making good progress 

on her mental health issues, but she was having trouble keeping up the home and 

arranging the children’s various appointments. Worse yet, she began missing some of 

her drug tests, and in March 2012, she tested positive for methamphetamine. Although 

she initially denied using drugs, she eventually admitted giving in to her urge to use 

methamphetamine. 

The relapse prompted social services to file a supplemental dependency 

petition in April 2012. Mother pleaded no contest to the allegations of drug use and 

failure to protect. E. and Haley were taken to Orangewood Children’s Home, and Olivia 

was placed with her father Robert E. However, Robert couldn’t handle caring for a three

year old, so Olivia was placed back into Maria and Jorge’s foster home on June 15, 2012. 

Having lived there before, and in light of her continuing contact with Maria and Jorge 

during the family maintenance period, Olivia made a smooth adjustment into their home. 

Described as happy, playful and developmentally on track, Olivia showed no signs of 

stress from the transition. 

During this second period of dependency, Mother resumed drug treatment. 

It was at least the fifth time in her life she had enrolled in a treatment program to 

overcome addiction. This time around, she was angry and defensive in therapy and 

refused to take responsibility for her actions. And although nearly all of her drug tests 

came back negative, she did test positive for cocaine on one occasion in July 2012.2 At a 

hearing the following month, her attorney admitted there was no basis for additional 

 

 

2 The positive test was derived from the analysis of one of Mother’s hair follicles. She disputed the 

results, and a subsequent hair follicle test came back negative for illegal drugs. 
4

reunification services or returning Olivia to Mother’s care. The court agreed and 

scheduled a hearing to determine a permanent placement plan for Olivia. 

Pending that hearing, Mother was allowed to visit Olivia three times a week 

for two hours a visit. In addition, Mother was allowed to participate in the bi-weekly 

visits Olivia had with her siblings. Most of the visits were monitored by Maria or Jorge, 

and they usually took place at a park or a McDonald’s. At first, Mother was not very 

engaged during the visits. In fact, during the sibling visits, E. was the one who primarily 

tended to Olivia, not Mother. However, toward the fall of 2012, Mother started to 

become more attentive to Olivia during visitation. She brought her toys and played with 

her, and Olivia seemed to enjoy the attention. However, Olivia was reluctant to attend 

some of the visits, and when they were done, she didn’t seem to mind departing from 

Mother. 

Mother’s social worker observed the visits on October 19 and November 

14, 2012. She reported Mother was playful with Olivia and interacted with her in an 

appropriate manner. Olivia was happy and liked being with Mother. She did not initiate 

affection with Mother, but when Mother hugged and kissed her, she reciprocated in like 

fashion. The visits ended with Mother placing Olivia in her car seat and telling her she 

loved her. Olivia remained in a good mood and calmly said goodbye. 

As of December 3, 2012, it was the social worker’s opinion that “[d]espite 

the frequent visitation, . . . Olivia does not appear to have a strong attachment to 

[Mother]. Though Olivia appears to enjoy her visits with [Mother], Olivia does not 

appear to seek [Mother] for care and comfort. Olivia is . . . at ease away from [Mother 

and her siblings] and [does] not show signs of distress at leaving them at the end of the 

visits or at being apart from them. Olivia is noted to be particularly attached to her 

current caregivers (Maria and Jorge, whom she calls “mami” and “papi”), who have 

cared for her since she was approximately eight months old. [They] have indicated that 

they are willing to adopt her and want to provide her a loving and permanent home.” The 
5

social worker’s recommendation at that time was to terminate Mother’s parental rights 

and free Olivia for adoption. 

On December 12, 2012, Mother informed her social worker she had read 

her reports and was concerned Maria and Jorge were not providing her with complete 

information about her visits with Olivia. She claimed there were visits when Olivia cried 

and asked to come home with her when the visits were over. However, Maria and Jorge 

did not report this to the social worker. Mother claimed this was because Maria and

Jorge wanted to adopt Olivia. She accused them of having a conflict of interest and said 

her attorney had told her she could request a professional monitor. The social worker 

told Mother she had not perceived any bias or inappropriate behavior by Maria or Jorge, 

and thus there was no reason for a professional monitor.

Apparently, the social worker talked to Maria and Jorge about Mother’s 

allegations. According to the social worker, Jorge told her that “at the end of the visits 

that took place on December 5th and December 7th, [Olivia] cried because she did not 

want the visit to end. On one of those days [Olivia] also told [Mother] ‘I want to go with 

you.’ [Mother] replied by saying ‘soon’ and ended the visit without incident. . . . 

[Olivia] did not continue to cry once they drove away from the visitation site and did not 

make further requests to go with [Mother].” 

Despite this information, the social worker’s assessment of the situation 

remained the same. Noting that “Olivia has been healthy and continues to thrive in her 

current placement,” the social worker “continue[d] to recommend that parental rights be 

terminated as to Olivia in order for her to remain in a stable and permanent home through 

adoption.” 

After monitoring a family visit that occurred on December 16, 2012, the 

social worker reported Mother gave Olivia and her siblings early Christmas gifts that day. 

Olivia was more focused on playing with her toys than interacting with her family, and at 

the end of the visit, she was calm and content. E. carried her to her car and instructed her 
6

to tell Mother she loved her, which she did. Olivia remained calm and did not show any 

signs of distress throughout her departure.

Mother continued to visit Olivia on a regular basis in January 2013. Maria 

and Jorge reported the visits were positive and Mother acted appropriately. Olivia was 

playful with Mother and returned in a good mood. However, when Olivia was away 

from Mother, she didn’t ask about her or request to see her. At home with Maria and 

Jorge, she was at ease and looked to Maria for comfort. Her disposition was upbeat and 

she showed no signs of stress or anxiety. Maria and Jorge agreed that, if they were 

allowed to adopt Olivia, they would allow her to visit her siblings on a regular basis. 

On February 6, 2013, the social worker monitored a visit between Olivia 

and Mother at a McDonald’s restaurant. Mother brought Olivia a puzzle and coloring 

supplies and was attentive to her throughout the visit. She also initiated physical contact 

with Olivia. Olivia was happy and comfortable with Mother and reciprocated her 

gestures of affection. At the end of the visit, they exchanged hugs and kisses, and Olivia 

remained calm. When she got home, she wanted to be held by Maria and was at ease in 

her arms. 

The next scheduled visit was on February 8, 2013. After waiting for an 

hour for Mother to show up, Jorge decided to leave the visitation site with Olivia. Olivia 

asked why they were leaving, but she did not seem upset when told it was because 

Mother had not arrived. When Olivia got home, she told Maria that her “mommy” did 

not show up, but as before, she did not appear upset. Mother called Jorge later that night. 

Although she did not explain why she was late, Jorge agreed to take Olivia back to 

McDonald’s for a visit. The visit went fine, but afterwards Olivia got sick and vomited 

several times.

At Mother’s request, all subsequent visits were monitored by independent 

third parties. On February 15, 2013, the social worker observed that Olivia slept halfway 

through the visit, and when she awoke, she asked for “mommy Maria.” However, she 
7

eventually played with Mother, whom she called “mommy,” and was in a good mood for 

most of the time. At the end of the visit, Mother placed Olivia in her car seat and gave 

her a hug. Olivia said goodbye and remained in a good mood as her car pulled away. 

On February 19, 2013, a social worker who was not otherwise involved in 

the case monitored the visit between Mother and Olivia. Maria was also present during 

this visit. At the start, Olivia did not acknowledge Mother, and Mother had to go up and 

give her a hug to get her to notice her. Mother then tried to interest Olivia in some toys 

she had brought her, but she was not successful. During the first 30 minutes of the visit, 

Olivia asked for “mommy Maria” three times. For the remainder of the visit, Olivia 

mostly played with other children in the area without directly interacting with Mother. 

However, when she was not playing, she enjoyed being held by Mother. And at one 

point, Mother gave her a piggyback ride, and she became very animated. At the end of 

the visit, Olivia did not cry or appear upset. 

The independent monitor for the visit on February 20, 2013 was Dr. 

Rosalva Martinez, a foster care worker. Dr. Martinez observed Olivia slept during the 

first hour of the visit. She then slowly warmed to Mother and colored and played with 

her for the second hour. When the visit was over, Olivia had some difficulty saying 

goodbye because she wanted to keep coloring. Mother said I love you, and Olivia told 

her the same. When Maria arrived, Olivia ran up to her, gave her a hug, and asked her 

about other members of her family. 

On February 22, 2013, Mother’s social worker monitored visitation. 

Mother brought Olivia some toys and coloring materials, and Olivia greeted her happily. 

While they were coloring, Olivia asked for Maria and Jorge. She then went over to a 

play structure, and Mother joined her there. Later in the visit, Olivia said she wanted to 

go home, but Mother talked her into coloring some more. When it was time for Mother 

to go, she asked for a hug, and Olivia obliged. Overall, the visit was happy and playful. 
8

Mother was focused on Olivia and acted appropriately, but Olivia did not show any signs 

of distress after Mother left. 

The visit on February 26, 2013 was similar in many respects. At Olivia’s 

request, Mother picked her up and carried her around in a playful fashion. Olivia enjoyed 

the attention, but at one point she asked for her “sister” Lupe, who is Maria’s daughter. 

When Mother was taking Olivia to her car at the end of the visit, Olivia was crying about 

a toy she had misplaced. She did not respond when Mother told her goodbye. 

The next visit was monitored by Dr. Martinez. When Mother arrived, 

Olivia did not make eye contact with her and instead looked around for Maria. But she 

slowly warmed up to Mother and they colored and played games together. While Olivia 

was coloring, she said Maria had told her that, when she was born, she “came out of her 

(Maria’s) tummy.” Mother corrected her, but Olivia insisted she came out of “mommy 

Maria.” Dr. Martinez told Mother she would talk to Maria about this. Olivia spent the 

rest of the visit talking and playing with Mother. When it was time for her to go, she said 

bye to Mother, gave her a kiss, and appeared to be in a good mood. 

On March 1, 2013, Mother told her social worker that Maria and Jorge 

were “pushing” Olivia to refer to their children as her brothers and sisters. Mother 

further alleged they told Olivia she was “loca” when Olivia told them Mother was her 

biological mother. Mother also renewed her complaint about Jorge and Maria observing 

visitation and expressed concern her relationship with Olivia was not being accurately 

reported. The social worker told Mother the observations about visitation have been 

consistent among the various monitors. It was the social worker’s opinion that, although 

the visits were going fine, their impact on Olivia “appears to be ephemeral, as the child 

shows no distress upon being separated from [Mother] and appears content to return to 

[Maria and Jorge],” with whom she has a “strong attachment.” 

Throughout this period, Mother continued her drug treatment and tested 

negative on all of her drug tests. However, she struggled to make headway on her 
9

relationship with Olivia, as evidenced by their final reported visit, which occurred on 

March 5, 2013. That day, Olivia told Maria she did not want to visit Mother, but Maria 

convinced her to go. However, when they got to the visitation site, Olivia clung tightly to 

Maria and ignored Mother. Feeling rejected, Mother started to cry, as did Maria. Maria 

begged Olivia to engage with Mother, but she refused. She simply thanked Mother for 

the toys she had brought her and walked back to Maria. Mother suggested they 

reschedule the visit and tearfully departed. 

When the social worker visited Olivia’s home later that day, Jorge told her 

Olivia seemed fine when she returned home. He did not notice anything peculiar about 

her behavior, and the social worker observed she was playing and seemed to be in a good 

mood. When the social worker asked her why she didn’t want to visit Mother that day, 

she said she just didn’t want to. She also said she didn’t want to visit Mother the 

following day, because Mother was boring and she wanted to be with “mommy Maria.” 

Jorge told the social worker Olivia is very attached to Maria and usually 

asks for her when she wakes up in the morning. He also said Olivia usually wants Maria 

to come along with her when she is visiting Mother. Maria confirmed this. She told the 

social worker that, besides that day, there had been other times when Olivia did not want

to see Mother, but she has always encouraged her to do so. Maria said this was the first 

time Olivia outright refused to visit Mother.

On the heels of that refusal, Mother filed a modification petition and asked 

the court to return Olivia to her custody under a family maintenance plan or order 

reunification services and unmonitored visitation. In support of her request, Mother 

submitted a declaration stating, “I have demonstrated continued sobriety since the last 

reporting period and have attended near-daily A.A. [Alcoholics Anonymous] meetings 

. . . .” Mother also alleged she had an A.A. sponsor, and her recovery was more of a 

priority for her now than it was in the past. And she claimed she had addressed her 

mental health issues, was employed and had a stable residence. Finally, Mother claimed 
10

she has consistently visited Olivia for six hours a week, and Olivia has demonstrated a 

bond to her. In that regard, Mother alleged Olivia calls her “mom,” looks to her to 

provide care, and has expressed a desire to go home with her. 

The court took up Mother’s modification petition on March 11, 2013, 

which was the date of Olivia’s permanent placement hearing. Although Mother 

requested an evidentiary hearing on her petition, the court determined there was no need 

for one because 1) her declaration was conclusory, and 2) even if everything she alleged 

was true, she failed to show there was a change of circumstances or her requested relief 

would be in Olivia’s best interests. Therefore, the court denied the petition on its face. 

 The court then turned to the issue of Olivia’s permanent placement. In 

addition to considering the social workers’ numerous reports, which span hundreds of 

pages, the court also entertained testimony from Mother, her current social worker, and 

her oldest daughter Melissa. 

Social worker Martha Corona testified she was assigned to the case on 

August 30, 2012.3 She has met with Olivia seven times at Maria and Jorge’s residence 

and monitored eleven visits involving Olivia and Mother. The last visit she monitored 

was on March 8, 2013. When saying goodbye to Mother at the end of that visit, Olivia 

said, “I wish I want to live with you.” Corona didn’t know what that meant or seek 

clarification from Olivia. Corona also admitted she has never asked Olivia if she misses 

Mother. Olivia has told her she enjoys visiting Mother, and Corona has observed that 

Olivia is usually happy to see her mom. However, Corona did not believe they have a 

strong attachment because, although Olivia is usually glad to see Mother, she does not get 

excited when they meet. And when their visits are over, she is usually content to go on 

her way. Corona also noted Olivia is very comfortable when she is in the care of Maria 

and Jorge. 

 

3 Prior to that time, Julia Cavin was Mother’s social worker. 
11

Speaking to Maria and Jorge’s integrity and possible bias, Corona testified 

they were questioned about some of the statements they allegedly made to Olivia. They 

denied telling Olivia that she was loca or that Maria was her biological mother. Corona 

felt they fairly monitored and reported on visitation. She said she has used professional 

monitors in the past, but they cost her agency money, and its current practice is to utilize 

the child’s foster parents as monitors for visitation. Corona also pointed out that, despite 

her belief that Maria and Jorge were accurate and reliable reporters, she and several other 

social workers monitored visitation throughout the case. 

Mother testified she has been sober since her children were removed from 

her care in 2012. She is currently on the third step of her drug treatment program and is 

committed to maintaining a clean lifestyle because her “heart” and “desire” are different 

now. Mother also said she is currently receiving mental health services and is fully 

compliant with her medication requirements. 

Regarding visitation, Mother testified Olivia sometimes hugs and kisses her 

at the start of their visits, and sometimes she runs straight to the play structure when they 

are at McDonald’s. Mother brings her toys and games, and they play together, but it is 

hard to compete with the play structure for Olivia’s attention. Yet, when they do play 

together, “it’s with complete affection on both sides.” Olivia likes it when she carries her 

around, and she always calls her “mom.” As proof of their affection, Mother provided 

photographs showing her and Olivia hugging and laughing at their visits. Mother said

it’s hard for her to describe their closeness, but “I know that she knows I’m her mom.” 

She said Olivia blows her kisses and “seems very confused” when their visits are over. 

Mother thinks this is because Olivia wants to go home with her, but she is also 

comfortable with Maria and Jorge. Mother admitted Olivia is “close” and “bonded” to 

Maria and Jorge, and she shows no signs of reluctance when returning to their care. 

However, Mother said Olivia was more affectionate with Maria than Jorge. 

She accused both Jorge and social worker Corona of failing to report information that 
12

was favorable to her, saying there were “a couple occasions where Olivia did say some 

things and it was not in the report.” For instance, there were actually four visits during 

which Olivia requested to come home with her, but Jorge only reported one of them. In 

addition, there were times when Olivia asked Mother why she can’t go home with her. 

Mother said that even when she told these things to Corona, she did not include them in 

her reports. 

The final witness was Olivia’s sister Melissa, who was 20 years old at the 

time of the hearing. She testified Olivia and Mother have always been very close, and 

during the time they lived together, Olivia followed Mother around like “a little puppy.” 

Mother gave Olivia a lot of loving care and attention back then. And when they see each 

other now, Olivia is always happy to visit and spend time with Mother. They talk and 

play together, and when the visits are over, Olivia usually gets “really upset” and asks 

when she can go home with Mother. On cross-examination, Melissa admitted that most 

of the visits she attended occurred in 2012 and that she hadn’t been to a lot of visits 

during the past couple of months. 

In arguing the matter to the court, Mother’s attorney urged the court to 

apply the so-called “benefit exception” to adoption on the basis Mother has maintained 

regular visitation with Olivia, and they have a “substantial positive emotional 

attachment.” Mother’s counsel also argued that having Maria and Jorge monitor 

visitation violated Mother’s due process right to maintain her familial relationship with 

Olivia without undue influence and biased reporting. She urged the court to apply 

equitable considerations in deciding on what would be best for Olivia. 

In making its ruling, the juvenile court did express concern about the 

practice of having foster parents monitor visitation. It opined the practice was “bad 

social work” because foster parents often have an interest in adopting the child they are 

monitoring, and they are generally less qualified than professional monitors to observe 

and report on visitation. Still, the court did not believe Maria and Jorge’s role in 
13

visitation interfered with Mother and Olivia’s relationship. The court determined 

Mother’s plight was attributable to her own failings on the drug front. And although 

Olivia did request to go home with her after a few of their visits, that was not very 

significant in the grand scheme of things because there were many more visits (over 100) 

during which Olivia left Mother’s company without showing any signs of longing or 

distress. All things considered, the court felt that not only would termination of parental 

rights not be detrimental to Olivia, it would actually be in her best interest. Therefore, it 

terminated Mother’s parental rights, freeing Olivia for adoption. 

I

Mother contends the court erred in denying her modification petition 

without an evidentiary hearing. We cannot agree. 

A parent petitioning to modify a previous dependency order must show 

there has been a material change of circumstances, and the proposed modification 

promotes the best interests of the children involved. (Welf. & Inst. Code, § 388; In re 

Casey D. (1999) 70 Cal.App.4th 38, 47-48.) To justify an evidentiary hearing on the 

petition, a parent need not demonstrate a probability of success on the merits. (In re 

Aljamie D. (2000) 84 Cal.App.4th 424, 432.) However, he or she must at least make out 

a prima facie case for relief. (Ibid.) And although the petition must be liberally 

construed in the parent’s favor, “[t]he 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. [Citation.]” (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) 

Mother’s petition did not allege such facts. In her declaration, Mother 

alleged she was working and had a stable residence, but that has been the case ever since 

Mother was released from jail back in 2010. There were no changed circumstances 

alleged with respect to Mother’s employment or housing situation. 

Nor was anything materially different in regard to visitation or Mother’s 

mental health situation. Mother visited Olivia on a regular basis throughout the case, and 
14

she consistently attended to her mental health needs by going to therapy and taking her 

medication. While Mother is to be commended for those things, they do not constitute a 

change of circumstances from what had been occurring in the case. 

In her petition, Mother also alleged she was sober, attending A.A. meetings 

on a near-daily basis, and had an A.A. sponsor. However, there have been several 

periods in Mother’s life during which she has been in recovery mode. The problem is, 

she has never been able to stay the course and overcome her drug problem. Even before 

this case arose, Mother had sought help for her addiction and completed drug treatment. 

However, she relapsed in 2009, violating her probation in the process. She then 

completed another drug program as part of her reunification plan before relapsing again 

in 2012. So the fact she was sober and going to A.A. at the time she filed her 

modification petition in 2013 was not really a change of circumstances so much as a 

continuation of her on-going – and commendable – effort to lick her addiction. 

Considering her lengthy drug history, it did not warrant returning Olivia to her care, 

additional reunification services, or unmonitored visitation. 

In fact, nothing Mother alleged in her petition constituted a change of 

circumstances or warranted a modification of the case plan. Therefore, the trial court was 

fully justified in denying the petition without an evidentiary hearing. No abuse of 

discretion has been shown. 

II

Mother also challenges the juvenile court’s decision to terminate her 

parental rights and free Olivia for adoption. She claims the court should have invoked 

the benefit exception to termination and placed Olivia under a legal guardianship. But 

this too was a discretionary call, and we cannot say that discretion was abused.

As explained in In re Autumn H. (1994) 27 Cal.App.4th 567, 573, adoption 

is the preferred plan when a child cannot be returned to his or her parents. “‘Only if 

adoption is not possible, or if there are countervailing circumstances, or if it is not in the 
15

child’s best interests are other, less permanent plans, such as guardianship or long-term 

foster care considered.’ [Citation.] Adoption, of course, requires terminating the natural 

parents’ legal rights to the child; guardianship and long-term foster care leave parental 

rights intact. After the parent has failed to reunify and the court has found the child likely 

to be adopted, it is the parent’s burden to show exceptional circumstances exist. 

[Citation.]” (Id. at p. 574.) 

Exceptional circumstances exist if, “The parents have maintained regular 

visitation and contact with the child and the child would benefit from continuing the 

relationship.” (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i).) This means “the 

relationship promotes the well-being of the child to such a degree as to outweigh the 

well-being the child would gain in a permanent home with new, adoptive parents.” (In re 

Autumn H., supra, 27 Cal.App.4th at p. 575.) In this regard, we must remember that 

“[i]nteraction between natural parent and child will always confer some incidental benefit 

to the child. The significant attachment from child to parent results from the adult’s 

attention to the child’s needs for physical care, nourishment, comfort, affection and 

stimulation. [Citation.] The relationship arises from day-to-day interaction, 

companionship and shared experiences. [Citation.] The exception applies only where the 

court finds regular visits and contact have continued or developed a significant, positive, 

emotional attachment from child to parent.” (Ibid.) In other words, the parent must 

occupy more than a “pleasant place” in the child’s life (In re Elizabeth M. (1997) 52 

Cal.App.4th 318, 324), and parent-child relationship must be characterized by something 

more than “frequent and loving contact.” (In re L. Y. L. (2002) 101 Cal.App.4th 942, 

953.) 

While Mother visited Olivia regularly, there is no evidence of a significant, 

positive, emotional attachment between them. Some of their visits were affectionate and 

pleasant to be sure, but others were not. And as the trial court noted, the vast majority of 

the visits ended easily with no signs of distress or disappointment from Olivia. On the 
16

other hand, the record shows Olivia is strongly attached to Maria and even asked for her 

at times when she was visiting Mother. That’s hardly surprising considering Maria and 

Jorge have cared for Olivia most of her life. Because of Mother’s serious drug issues, 

they have been the most consistent source of comfort and support for Olivia. 

Mother renews her claim that having Olivia’s foster parents act as monitors 

was unfair. Accusing Maria and Jorge of having an “internal bias,” Mother argues that 

because they “monitored the visits until the very last month or so of the case, the reports 

are really tainted and not a reliable source of evidence from which the court could 

conclude that the child would detrimentally suffer from the termination of the parentchild relationship.”4 

However, not all of the information Maria and Jorge provided was 

unfavorable toward Mother. In fact, Jorge told the social worker that, sometimes at the 

end of visits, Olivia cried and asked to go home with Mother. He also reported how 

Olivia and Mother interacted and played together during the visits. Not everything he 

reported was positive about Mother, but it wasn’t all negative either. 

Moreover, in reading the voluminous and detailed information supplied by 

the independent monitors, it is striking how similar it is to the information supplied by 

Maria and Jorge. Like Maria and Jorge, the independent monitors generally described 

the visits as playful and upbeat, but they noted that sometimes Olivia would wander off 

from Mother and play on her own, and sometimes she would look around for Maria and 

ask for her by name. They also noted that the affection, to the extent it occurred, was 

usually initiated by Mother, not Olivia. And none of the independent monitors reported 

Olivia was greatly disappointed or showed signs of separation anxiety when the visits 

 

4 In so arguing, Mother draws our attention to rule 5.220 of the California Rules of Court. That rule 

applies to child custody investigators who have been appointed in family law cases to report on the best interest of 

children with respect to custody and visitation issues. The rule does not apply in juvenile dependency cases. (See 

Cal. Rules of Court, rule 5.220(b).)
17

were over. In fact, it is undisputed that Olivia did not want to see Mother at all during 

their final reported visit in early March. 

In light of this, we do not believe the proceedings were fundamentally 

unfair or violated Mother’s due process rights. The trial court took Mother’s allegations 

of bias very seriously, as do we, but it ultimately determined additional independent 

monitoring would not have changed the outcome. Based on the entire record of the case, 

we cannot disagree with that assessment. The case was in the system for over three 

years, during which Mother was provided extensive services and allowed regular 

visitation. Yet, she was unable to resolve her drug problem or even progress to the point 

of unmonitored visitation with Olivia. On the other side of the ledger, the record is clear 

that Olivia has flourished in Maria and Jorge’s care and developed a deep emotional bond 

with them. This positive, loving connection will enable Olivia to continue to reap 

substantial personal and emotional benefits. Weighing those benefits against the 

incidental gains Olivia would derive from preserving her parental ties, we cannot say the 

juvenile court erred. There is no basis for disturbing its decision terminating Mother’s 

parental rights over Olivia and freeing her for adoption.

DISPOSITION

The judgment is affirmed.

BEDSWORTH, ACTING P. J.

WE CONCUR:

MOORE, J.

IKOLA, J.