Filed 3 / 15 / 21 In re C.J. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

In re C.J., a Person Coming Under the Juvenile Court Law. 2d Juv. No. B306722 (Super. Ct. No. 18JD00285) (San Luis Obispo County)

SAN LUIS OBISPO COUNTY DEPARTME NT OF SOCIAL SERVICES,

Plaintiff and Respondent,

v.

B.J. et al.

,
Defendants and Appellants. ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT]

THE COURT:
It is ordered that the opinion filed herein on February 25, 2021, be modified as follows:

1. On p age 11
, the last paragraph is deleted and replaced
with:2 Parents contend that the orders must be reversed because the Department purposely reduced Mother’s visitation to strengthen C.J.’s ties with her caregivers and to hinder Mother’s ability to establish the
ben eficial relationship exception. We decline to
consider this contention because it was not sufficiently supported by argument or citation to legal a uthority, was not id entified in a heading in
Mother’ s opening brief, and because, as discussed above, Mother was provided reasonable
visitation. ( People v. Aguayo (2019) 31 Cal.App.5th 758, 768; Provost v. Regents of University of California (2011) 201 Ca l.App.4th 1289, 1294.) 1

There is no change in judgment. Appellant’s petition for rehearing is denied.

__________________________________________________________ __ TANGEMAN, J. YEGAN, Acting P. J. PERREN, J.

1 Father makes no independent challenges to the judgment but contends that if the order terminating Mother’s parental rights is reversed, the order terminating his rights must also be reversed. ( Cal. Rules of Court, rule 5.725 (a)(1); In re DeJohn B. (2000) 84 Cal.App.4th 100, 110 [rule not automatic].) Because we affirm as to Mother, we also affirm as to Father

.Filed 2 / 25 / 21 In re C.J. CA2/6 (unmodified opinion)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

In re C.J., a Person Coming Under the Juvenile Court Law. 2d Juv. No. B306722 (Super. Ct. No. 18JD00285) (San Luis Obispo County)

SAN LUIS OBISPO COUNTY DEPARTME NT OF SOCIAL SERVICES,

Plaintiff and Respondent,

v.

B.J. et al.

,
Defendants and Appellants.

B

. J

. (Father) and K

. A

. J

. (Mother) appeal from the juvenile court’s orders (1) denying Mother’s petition to change the order terminating her reunification services as to their daughter2

C.J. and to increase in

- person visitation (Welf. & Inst. Code, 2 § 388 ) and (2) terminating t he i r parental rights and selecting an adoption plan ( § 36 6.2 6 ) . They assert the juvenile court abused
its discretion when it declined to reinstate reunification services
to Mother

, substantial evidence did not support rejection of t he beneficial relationship exception (§ 366.26, subd. (c)(1)(B)(i)) , and Mother’s due process rights were violated when the court made an inadequate visitation order

. 3 We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
C.J. was born in November 2017. In January 2018, Mother was intoxicated, passed out, and unresponsive . C.J., who was two months old, was lying next to her with a n empty bottle of vodka nearby. In another incident that month , Mother was drinking, “stumbling around

, ” and arguing with Father when she

a ttempted to g et her keys and leave with C.J. In April, Mother passed out again from intoxication while caring for C.J. In August, Mother was incarcerated for violating her DUI probation
with a new DUI. The same month, Mother and Father engaged
in domestic violence i n front of C.J. A bottle of vodka was found
in her crib.
Father was arrested in July for meeting for lewd

purposes a n undercover officer posing as a 15

- year

- old girl

. (Pen. Code, § 288.4, subd. (b) .) H e was sentenced to three years in state prison. He texted another person describing sexual contact

2 All subsequent undesignated statutory references are to the Welfare and Institutions Code.

3 Father’s appeal from the denial of his oral motion to dismiss based on lack of jurisdiction has been abandoned. ( In re S.C. (20 06) 138 Cal.App.4th 396, 408.)3

he had with C.J. and future sexual contact he wished to have
with her. The San Luis Obispo County Department of Social Services (Department) filed a petition on C.J.’s behalf. (§ 300,
subd s. (b)(1), (d) & (g).) The court sustained the petition in November 2018, adjudged C.J. a dependent of the juvenile court

, removed custody from the parents, and placed C.J. with a paternal aunt

. (§§ 300, subd s . ( b ) (1) & (d) , 361, subd. (c)(1) .) The court ordered reunification services for both parents

, supervised visitation for Mother, and no contact with Father.

The court returned C.J. to M other in January 2019. In April, the court terminated re unification services for Father
because he f

ailed to participate in court

- ordered treatment

. Mother stopped urine testing and treatment in June. On August 2, a social worker found Mother passed out on the couch with the front door wide open, beer cans and wine bottles throughout the house, and C.J. alone an d crying in the bedroom. After several attempts to wake Mother

, she got up and stumbled
to the bedroom. C.J. had a bump on her head; Mother claimed it happened at the house of a relative, who denied knowledge

. C.J.
was removed from Mother’s custody and placed with a relative.

Mother admitted she relapsed in July and was “ off the rails” through October. She resumed treatment in August
but discontinued again in mid

- September. She resumed
treatment in October.

In January 2020, the court found there was not a substantial probability of returning C.J. at the 18

- m onth date of February 28, 2020. T he court terminated Mother’s reunification
services and set a hearing to terminate parental rights

. (§ 366.26

. )4 In May

, Mother filed a request to change court order. (§ 388.) She alleged she was participating in mental health, substance abuse, and parenting programs

. She declared that she had been sober for 11 months before a relapse in July 2017. S he
stated she had been sober from August 2018 through July 2019

. She suffered a relapse in July 2019 but now claimed she had been sober since August 7, 2019. She requested the court order f amily

m aintenance or reinstate unification services to her. She also requested in

- person visitation.

At c ombined hearing s on Mother’s modification request (§ 388 ) and termination of parental rights (§ 366.26)

, Mother testified she was attending eight AA meetings a week
and servi ng as secretary at two of them. She agreed that C.J. received primary care from her current caregivers for the preceding 10 months.

A specialist with drug and alcohol services testified that Mother had gained insight regarding her alcoholism and “finally figured

. . . out” that recovery is a lifetime process

. Mother obtained a sponsor as part of a relapse prevention strategy. Mother’s marriage and family therapist testified that Mother was abstaining from alcohol and was engaged in AA and other activities necessary to maintain recovery. She testified that Mother was close to one year of abstinence, at which point the rate of lifetime sobriety doubles

.

An adoptions social worker for the Department opined that it would not be in C.J.’s best interest to return custody to Mother because her history of relapses would place
C.J. at too great a risk of being removed again

. C.J.’s caregivers preferred adoption to guardianship because it provided stability5

and avoided the worry that a parent might petition to dissolve the guardianship.

The court considered C.J.’s history. She was placed
with her paternal grandfather in August 2018 for approximately
three months. In November, she lived with Mother at a
residential treatment facility for 30 days. For the next approximately six months, C.J. and Mother lived in the same home as a paternal aunt and grandmother. For the next three months, Mother and C.J. lived together in an apartment

. C.J.
was removed in August 2019 and returned to the home of her aunt and paternal grandmother , where she remained

.

The trial court denied the section 388 petition. The
court noted that Mother continued with therap y even after
services were terminated. The court stated that while “this may
be the t ime ” that Mother remains sober, it w ould not take th e chance of another relapse that would place C.J. at risk of harm
and further trauma

. The court found that C.J. was well bonded
with both Mother and the custodial family members. The

par ental aunt wanted to adopt C.J. The court found it unlikely
that Father would be released from prison soon and the refore permanency predominated. The court found it was likely C.J

. would be adopted and terminated parental rights.
DISCUSSION Section 388 petition
When reunification services have been terminated and a section 366.26 hearing set, the focus of the case shifts from

“ the parents’ interest in the care, custody and companionship of
the child

. . . ‘ t o the needs of the child for permanency and stability. ’” ( In re Stephanie M. (1994) 7 Cal.4th 295, 317.)6

“[T ] here is a rebuttable presumption that continu ed foster care is in the best interests of the child.” ( Ibid

. )

“ ‘Section 388 provides the “ escape mechanism ”

. . . to allow the court to consider new information. ’ ” ( In re Mickel O. (2011) 197 Cal.App.4th 586, 615 .) The petitioner must show by a preponderance of the evidence “ ‘a genuine change of
circumstances ’” and that “ ‘ undoing of the prior order would be in
the best interests of the child. [Citat ion.] ’ ” ( Ibid .)

We review denial of a section 388 petition for abu s e of
discretion , which is not shown unless the trial court made “ ‘ “ an arbitrary, capricious, or patently absurd determination [citations]

. ”’ ” ( In re Stephanie M.

, supra , 7 Cal.4th at p. 318.) We
find no abuse of discretion here.

In determining a section 388 motion, factors to consider include: “ (1) [ T ] he seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers ; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been.” ( In re Kimberly F. (1997) 56 Cal.App.4th 519, 532 , italics original ( Kimberly F

. ) .) In Kimberly F. , dependency was based on an unsanitary house, a problem the parent had resolved. ( Id

. at pp.
521

- 522, 532.) Here, dependency was based on a more serious
and intractable problem, including Mother’s loss of consciousness
from alcohol abuse that left C.J. unsupervised and unprotected. ( See In re K.B. (2021) 59 Cal.App.5th 593 , 600 [ “ mother routinely disappeared from her children’s lives” by falling asleep from
substance abuse ].) The trial court properly concluded that7

Mother had a “deeply ingrained alcohol addiction

, ” and that when Mother drinks, she drinks to e xcess and places C.J. at risk.

As in Kimberly F. , C.J. had ties to both Mother and the family members who ha d taken care of her for much of her
life. And while Mother made recent progress toward recovery , the dependency was punctuated by recurrences endangering C.J. Despite eight months of reunification services and nine months of family maintena nce services, Mother failed to demonstrate her ability to protect C.J. on a sustained basis.

“[I]n order to prevent children from spending their lives in the uncertainty of foster care, there must be a limitation on the length of time a child has to wait f or a parent to become adequate.” ( In re Marilyn H. (1993) 5 Cal.4th 295, 308

, disapproved on another point as stated in Nickolas F. v. Superior
Court (2006) 144 Cal.App.4th 92, 112 .) Reunification services

may not exceed six months if the child is under the age of three, unless the court finds a substantial probability of return in an extended 12

- or 18

- month period. (§ § 361.5, subd . (a)(1)(B), (a)(3)(A) , 366.21 , subd. ( g ) ; Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249 .) In January 2020, the court found no substantial prob ab ility that C.J. c ould be returned with in 18
month s

. The juvenile court did not abuse its discretion in concluding that Mother failed to establish that reopening
reunification services would be in C.J.’ s best interest and would

“ advance the child’s need for permanency and stability. ” ( In re
J.C. (2014) 226 Cal.App.4th 503, 527; Cal. Rules of Court, rule
5.570 (e)(1) & (i)

. ) C.J.’s “best interests [were] not to further delay permanency and stability in favor of rewarding Mother for her hard work and efforts to reunify.” ( In re J.C. , at p. 527.)8

Mother’s frequent relapses presented a realistic danger that C.J. would be traumatized by yet another removal from custody.

B eneficial relationsh ip exception
Mother contends that the beneficial r elationship exception (§ 366.26 , subd. (c)(1)(B)(i) ) applie s and the court erred in terminating parental rights for adoption rather than granting guardianship. We d is agree.

There is a split of authority as to the standard of review regarding the beneficial relationship exception. ( In re
Caden C. (2019) 34 Cal.App.5th 87, 106, review granted July 24, 2019, S255839).) Recent cases review the factual issue of
whether a beneficial parental relationship exists for substantial
evidence , and whether termination would be detrimental to the
child for abuse of discretion

. ( In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314

- 1315; In re E.T. (2018) 31 Cal.App.5th 68, 76.) U tiliz ing either standard of review, we find no error.

Mother contends the purpose of the beneficial relationship exception is to preserve visitation a nd does not encompass custody. She is mistaken. The beneficial relationship provision is an exception to the statutory preference to terminate parental rights in favor of ado ption. (§366.26, subd. (b)(1).)
Section 366.2 6, subdivision (c)(1) provides: “If the court
determines . . . t hat it is likely the child will be adopted, the court
shall terminate parental rights .

. . unless either of the following applies: [¶] .

. . [¶] (B) The court finds a compelling reason for determining that termination would be detrimental to the child
due to one or more of the following circumstances: [¶] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” The trial court properly applied the statute.9 T he exception requires the parent prove both regular
visitation and that the 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 parent s. ’ ”’ ” ( In re Breanna S. (2017) 8 Cal.App.5th 636,
646

. ) A parent who has not reunified “‘ 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 par ent.’” ( Ibid. , italics original.) The exception applies only in “ ‘ an extraordinary case ’ ” because the permanent plan hearing occurs after the court has found the

par ent is unable to meet the child’ s needs. ( Ibid .)

Mother met the first prong of the exception by “maintain[ing] regular visitation and contact with the child.” (§ 366.26, subd. (c)(1)(B)( i).) But she did not show that terminating parental rights “would be detrimental to the child.” (§ 366.26, subd. (c)(1)(B).)

Substantial evidence supp orted the juvenile court’s conclusion that the exception did not apply, and the court did not abuse its discretion in reaching that conclusion. A n emotional
bond with the child is insufficient ; “the parent must show that he or she occupies a ‘parental rol e’ in the child’s life” and that the
child would be “ ‘ greatly harmed ’ ” by severing the relationship. ( In re Derek W. (1999) 73 Cal.App.4th 823, 827.) C.J. was two

years eight months old at the time of the final order and had spent more than half her life in foster care with parental
relatives. Although C.J. had bonded with both Mother and the caregivers, the Department reported that C.J. received primary
care from her ca regiv ers for the preceding 10 months and10

“look[ed] to them for ongoing supp ort, security, and parenting.” The court properly concluded that she should not be denied the benefits of permanency by continuing to wait for M other to establish sustained sobriety

. Vi sitation
Mother contends the court ’s failure to order more
vi sitation, and limiting her to visitation by video, violated her due process rights

. She asks that we reverse the termination order
and remand for six more months of visitation, to be followed by another section 366.26 hearing. ( In re David D. (1994) 28 Cal.App.4th 941, 956.) Her contention lacks merit

.

When the court terminates reunification services and sets a section 366.26 hearing, it must allow visitation unless it
would be detri mental to the child. (§ 366.21, subd. (h).)
V isitation was provided here.

Starting in August 2019, Mother was allowed weekly

one

- hour supervised visits. After the termination of unification
services in January 2020, she had one

- hour supervised visits

tw ice a month. In March 2020, based on the COVID

- 19 pandemic, the Department allowed only electronic visitation.
Mother visited C.J. six times by video between March and May
for about 90 minutes each time

. Mother talked to C.J., read to
her , and they colored together. On June 24, the court reinstated
in

- person visits. Mother had two in

- person visits and C.J. was
excited to see her

.

Mother contends that the failure to provide more in

person visit s violated her right to due process. “In substantive due process law, deprivation of a right is supportable only if the conduct from which the deprivation flows is prescribed by reasonable legislation that is reasonably applied; that is, the law11

must have a reasonable and substantial relation to the object sought to be at tained.” ( In re Marilyn H. , supra , 5 Cal.4th at pp.
306

- 307.) Due process was satisfied here by giving M other reasonable visitation, a reasonable period to reunify, and an opportunity to show changed circumstances. ( Id . at p. 309.)

This case is not like In re David D., supra

, 28 Cal.App.4th 941, or In re S.S. (2020) 55 Cal.App.5th 355, 377 . In those cases, the parent was not allowed sufficient visitation to
maintain or demonstrate a bond with the child

. In contrast here,
Mother was allowed regular contact and positive bonding experiences with C.J. Mother has not shown that more in

- person visits would have allowed her to establish that terminating parental rights was detrimental

.

Parents contend that the orders must be reversed because the Department purposely reduced Mother’s visitation to strengthen C.J.’s ties with her caregivers and to hinder Mother’s

a bility to establish the bene ficial relationship exception. We
decline to consider this contention because it was raised for the first time in their reply briefs ( In re Ricky H. (1992) 10 Cal.App.4th 552, 562), and because, as discussed above, Mother

was p rovided reasonable visitation. 4

4 Father makes no independent challenges to the judgment but contends that if the order terminating Mother’s parental rights is reversed, the order terminating his rights must also be reversed. ( Cal. Rules of Court, rule 5.725 (a)(1); In re DeJohn B. (2000) 84 Cal.App.4th 100, 110 [rule not automatic].) Because we affirm as to Mother, we also affirm as to Father

.12 DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.

TANGEMAN, J.

We concur:

YEGAN, Acting P. J.

PERREN, J.Charles S. Crandall, Judge

Superior Court County of San Luis Obispo

______________________________ Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant B.J. (Father).

Maryann M. Goode, under appointment by the Court of Appeal, for Defendant and Appellant K.A.J

. (Mother)

.

Rita Neal, County Counsel, Timothy McNulty, Deputy County Counsel, for Plaintiff and Respondent.