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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 

DEPARTMENT 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 page 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 

beneficial relationship exception. We decline to 

consider this contention because it was not 

sufficiently supported by argument or citation to 

legal authority, was not identified 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 Cal.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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

DEPARTMENT 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 daughter 
2

C.J. and to increase in-person visitation (Welf. & Inst. Code,2

§ 388) and (2) terminating their parental rights and selecting an 

adoption plan (§ 366.26). They assert the juvenile court abused 

its discretion when it declined to reinstate reunification services

to Mother, substantial evidence did not support rejection of the 

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 an empty bottle of 

vodka nearby. In another incident that month, Mother was 

drinking, “stumbling around,” and arguing with Father when she 

attempted to get 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 in front of C.J. A bottle of vodka was found 

in her crib.

Father was arrested in July for meeting for lewd 

purposes an undercover officer posing as a 15-year-old girl. (Pen. 

Code, § 288.4, subd. (b).) He 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. (2006) 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, 

subds. (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, subds. (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 Mother in January 2019. 

In April, the court terminated reunification services for Father 

because he failed 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 and 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-month date of 

February 28, 2020. The 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. She

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 family 

maintenance or reinstate unification services to her. She also 

requested in-person visitation. 

At combined hearings on Mother’s modification 

request (§ 388) and termination of parental rights (§ 366.26), 

Mother testified she was attending eight AA meetings a week 

and serving 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 stability 
5

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 therapy even after 

services were terminated. The court stated that while “this may 

be the time” that Mother remains sober, it would not take the

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 

parental aunt wanted to adopt C.J. The court found it unlikely 

that Father would be released from prison soon and therefore 

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 . . . ‘to 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 continued 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. [Citation.]’” (Ibid.)

We review denial of a section 388 petition for abuse 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 that 
7

Mother had a “deeply ingrained alcohol addiction,” and that when 

Mother drinks, she drinks to excess and places C.J. at risk. 

As in Kimberly F., C.J. had ties to both Mother and 

the family members who had 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 maintenance 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 for 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 probability that C.J. could be returned within 18

months. 

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. 

Beneficial relationship exception

Mother contends that the beneficial relationship 

exception (§ 366.26, subd. (c)(1)(B)(i)) applies and the court erred 

in terminating parental rights for adoption rather than granting 

guardianship. We disagree.

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.) Utilizing either standard of review, we find no error.

Mother contends the purpose of the beneficial 

relationship exception is to preserve visitation and 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 adoption. (§366.26, subd. (b)(1).) 

Section 366.26, subdivision (c)(1) provides: “If the court 

determines . . . that 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

The 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 parents.’”’” (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 parent.’” (Ibid., italics original.) The 

exception applies only in “‘an extraordinary case’” because the 

permanent plan hearing occurs after the court has found the 

parent 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 supported the juvenile court’s 

conclusion that the exception did not apply, and the court did not 

abuse its discretion in reaching that conclusion. An emotional 

bond with the child is insufficient; “the parent must show that he 

or she occupies a ‘parental role’ 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 caregivers for the preceding 10 months and 
10

“look[ed] to them for ongoing support, security, and parenting.” 

The court properly concluded that she should not be denied the 

benefits of permanency by continuing to wait for Mother to 

establish sustained sobriety.

Visitation

Mother contends the court’s failure to order more 

visitation, 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 detrimental to the child. (§ 366.21, subd. (h).) 

Visitation 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 

twice 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 inperson visits 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 law 
11

must have a reasonable and substantial relation to the object 

sought to be attained.” (In re Marilyn H., supra, 5 Cal.4th at pp.

306-307.) Due process was satisfied here by giving Mother 

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 

ability to establish the beneficial 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 provided 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.