1

Filed 10/10/23 In re S.P. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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 This opinion has not been certified for publication 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

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re S.P., a Person Coming Under the 

Juvenile Court Law.

SAN BERNARDINO COUNTY 

CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

L.P.,

Defendant and Appellant.

E081330

(Super.Ct.No. J287288)

OPINION

APPEAL from the Superior Court of San Bernardino County. Cara D. Hutson, 

Judge. Affirmed.

Jack A. Love, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Tom Bunton, County Counsel, Joseph R. Barrell, Deputy County Counsel for 

Plaintiff and Respondent.
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Defendant and appellant L.P. (Mother) appeals after the termination of her 

parental rights to S.P. (born Nov. 2018, hereinafter Minor) at a Welfare and Institutions 

Code section 366.261 hearing. Mother contends on appeal that (1) the juvenile court

erred by denying her section 388 petition without a hearing; and (2) the juvenile court 

erred by finding the beneficial-parental bond exception to termination of parental rights 

did not apply.

FACTUAL AND PROCEDURAL HISTORY

A. DETENTION 

On November 3, 2020, the San Bernardino County Children and Family Services 

(Department) received a 10-day response referral for Minor due to the death of a sibling, 

Z.P., who was born in November 2019 and died less than one year later. Mother had two 

other children, S.H., who was born in June 2011, and L.J., born in June 2010

(collectively, Siblings). It was reported that Z.P. had died while in Mother’s care.

Law enforcement who responded to the call of Z.P.’s death on November 4, 2020, 

spoke with Mother. Mother reported having a party at the residence on the prior day. 

Responding officers found beer cans throughout the residence, baggies of marijuana on 

the floor, pills on window sills, and an unknown white substance on the kitchen counter. 

Mother appeared to be intoxicated. Mother advised law enforcement that on November 

3, 2020, at approximately 4:00 a.m., Mother gave Z.P. Tylenol because Z.P. had a cold. 

Mother and Z.P. both slept on the floor in the living room. At around 9:00 a.m. the next 

1 All further statutory references are to the Welfare and Institutions Code unless 

otherwise indicated.
3

morning, Mother woke up and helped her other children get ready for school. She 

noticed that Z.P. was sleeping on her stomach. Mother went back to sleep until 1:30 p.m. 

When Mother awoke, she tried to wake Z.P., but she was deceased. Law enforcement 

arrived at approximately 2:00 p.m. An autopsy had to be conducted on Z.P. in order to 

determine the cause of death.

A social worker from the Department visited Mother’s home on November 12, 

2020. Mother reluctantly allowed the social worker into her home. There was no 

furniture in the living room. Mother stated that she lived alone in the home with Minor 

and Siblings. Mother was evasive when questioned about Z.P.’s death and did not 

express any emotion regarding her death. Mother reported that she and Z.P. routinely 

slept together on blankets in the living room; she did not have a crib. Mother was not 

sure how many people were in her home on the night of Z.P.’s death. She was having a 

birthday party for Minor and only relatives were in attendance. She admitted drinking 

“one beer” that night. She denied using drugs. Mother denied that there were any illegal 

substances in her home when law enforcement arrived.

An interview warrant had to be obtained for the social worker to speak with Minor 

and Siblings as Mother did not make the children available to the Department. Minor and 

Siblings appeared in dirty clothes and messed-up hair. They immediately denied that 

Mother ever hit them. They felt safe in the home. They all reported that the night of 

Z.P.’s death, Mother had a party for Minor for his birthday. When they woke up the next 

day, they attended online school and then discovered that Z.P. had not woken up. They 

all went to the hospital with Mother and Z.P. was announced deceased. S.H. was the 
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father of Siblings; Minor’s father was reported by Mother to be D.J., who was serving a 

life sentence in prison. Mother had no prior history with the Department and no known 

criminal history.

A detention warrant was obtained and Minor was detained. Minor was placed

with maternal aunt, Ms. S., on November 13, 2020.

The Department filed a section 300 petition against Mother for Minor on 

November 17, 2020 (Petition). The father was stated to be D.J. It was alleged in the 

Petition under section 300, subdivision (b), failure to protect, that Mother was under the 

influence while caring for Minor, which impacted her ability to care for him, and she was 

unable to provide a safe living environment for Minor based on dangerous substances 

being found that were easily accessible to him which impacted Mother’s ability to care 

for him. It also was alleged pursuant to section 300, subdivision (f), that Z.P. died while 

in Mother’s care and the cause of death was unknown; and pursuant to section 300, 

subdivision (g), that D.J.’s whereabouts were unknown and he failed to provide support 

to Minor. Mother denied any Indian ancestry.

A detention hearing was held with Mother present on November 18, 2020. The 

juvenile court found a prima facie case that Minor came within section 300 and that 

detention should be outside the home. S.H. was present and requested custody as a 

nonoffending parent.

B. JURISDICTION/DISPOSITION REPORT AND HEARING

The jurisdiction/disposition report was filed on December 4, 2020. The 

Department recommended that Minor remain out of the home and that reunification 
5

services not be granted to Mother for Minor pursuant to section 361.5, subdivision (b)(4), 

death of another child. Siblings had been placed with S.H. and it was recommended that 

the dependency be dismissed as to them. Z.P.’s cause of death was still unknown.

Mother was interviewed on December 2, 2020, regarding the party on the night of 

Z.P.’s death. She claimed to have had only one glass of wine and it did not impact her 

ability to care for Minor, Siblings, and Z.P. The white powder in the kitchen was chalk. 

There were beer cans in the apartment because she collected cans and did not have a trash 

bag. She denied that she smoked marijuana; she never saw marijuana in her house. D.J.

was in prison for attempted murder until June 2043. L.J. reported that she had observed 

Mother consume beer, but not every day.

The Department stated that Mother had not accepted responsibility for her actions,

which led to the removal of Minor and Siblings from her care. Mother had attended only 

one visit with Minor. The Department had been unable to get Mother to schedule any 

other visits. Mother had one negative drug test. Mother reported that D.J. had not been 

present at Minor’s birth and never provided for Minor. The Department recommended 

that D.J. be named the alleged father.

An autopsy was performed on Z.P. The coroner could not determine the cause or 

manner of death. There were no signs of trauma nor any other obvious signs of death. 

The police report from the night of Z.P.’s death was attached to the 

jurisdiction/disposition report. The reporting officer noted that there were several empty 

beer cans in the apartment along with baggies of marijuana. There was some type of 

crushed up pill found in the living room. When Mother was interviewed, the officer 
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noted a strong odor of alcohol coming from Mother. Paternity testing for D.J. was 

ordered.

Additional information was provided to the juvenile court on February 3, 2021,

and May 4, 2021. Mother was referred to a substance abuse treatment program. Further, 

photographs of Mother’s apartment on the night of Z.P.’s death were submitted, which 

included photographs of a white substance, marijuana baggies on the floor, pills on a 

windowsill, and beer cans. There was just a mattress and blanket on the living room 

floor. The home was very unkempt and dirty. Paternity testing revealed that D.J. was not 

the biological father of Minor and it was recommended he be removed from the case. 

The autopsy report was submitted to the juvenile court. Toxicology reports showed that 

no substances were in Z.P.’s system that would have caused her death. The cause of 

death was “unexplained sudden death.”

The jurisdiction/disposition hearing was to be held on May 5, 2021. Mother was

present. D.J. was excluded as a possible father of Minor; Mother named B.T. as the 

possible father of Minor. The matter was continued in order for B.T. to be noticed of the 

hearing. The Department was now recommending that Mother be granted reunification 

services.

An addendum report was submitted on June 21, 2021. The Department 

recommended that the allegations in the Petition be found true and that Mother be granted 

reunification services. Siblings were placed with S.H. and the dependency should 

dismissed as to them. Minor had been moved to the foster home of Ms. D. Mother had 

been engaged in a drug treatment program and tested negative on a drug test.
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It had been reported that Mother was unable to handle Minor during visits. He had 

been observed climbing on furniture, throwing himself on the floor, punching and 

screaming at Mother when she tried to redirect him. Visits had been described as 

“chaotic and out of control.” Minor had been diagnosed with trauma/stress related 

disorder. He was frequently irritable and threw tantrums. He was aggressive toward 

other children. B.T. could not be located. Mother was making some progress in her drug 

treatment program but had not completed all of her requirements. The treatment program 

was extended to August 19, 2021. Mother completed her parenting class but it was 

recommended that she continue in individual therapy.

The jurisdiction/disposition hearing was held on August 10, 2021. D.J. was 

declared a nonparty and B.T. was named the alleged father. The juvenile court adopted 

all the findings and orders in the jurisdiction/disposition report. The juvenile court found 

that ICWA did not apply. Reunification services were granted for Mother. Siblings were 

placed with S.H. and the dependency as to them was dismissed. The section 300, 

subdivisions (g), and (f), allegations in the Petition were dismissed. All of the section 

300, subdivision (b), allegations were found true for Minor and Siblings against Mother.

C. REVIEW REPORTS AND HEARINGS

The Department filed a review report on February 8, 2022. It was recommended 

that reunification services be continued. Minor had been moved to the foster home of 

Mr. and Mrs. W. He had been in the placement for five months and was adjusting well. 

He was much calmer since he had been in their care. Mother reported feeling depressed 

and had a hard time processing the death of Z.P. Mother hoped to marry S.D., a man 
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with whom she had been living with for several months. S.D. had an extensive criminal 

record and became angry when questioned about his criminal history by a social worker. 

The Department was concerned about the relationship and whether it presented a safety 

risk to Minor. Minor had been diagnosed with autism and was receiving services, 

including therapy. Minor was doing well in his services.

Mother had completed her parenting class. Mother completed her drug treatment 

program on October 15, 2021. She appeared to be maintaining a drug-free lifestyle. She 

had several negative drug tests; a positive test for Ethanol and a no-show test. Mother 

was doing better at visitation, redirecting Minor as needed. Mother presented as loving, 

engaged, and appropriately attentive. The Department recommended unsupervised visits 

for Minor with Mother.

The review hearing was held on February 10, 2022. The juvenile court continued 

reunification services for Mother. Mother was also granted unsupervised visits as long as 

she did not bring S.D. to the visits.

In its review report filed on May 18, 2022, the Department requested an additional 

90 days in which to further assess Mother’s living arrangements with the goal of 

returning Minor to her care. Mother had completed all of her services and the 

Department believed she had benefitted from the services. She had consistently attended 

visitation with Minor. Mother was still residing with S.D. in a two-bedroom apartment. 

S.D. was being evaluated and was cooperating with the Department. Minor had a healthy 

bond with his caregivers. A psychological evaluation of Mother had been completed. 
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Mother was diagnosed with borderline intellectual functioning, which did not prevent her 

from caring for Minor, but she would need support from the Department.

Mother had unsupervised visits with Minor. She was consistent in her visitation 

and was able to control Minor. Mother had negative drug tests during the reporting 

period. Mother wanted Minor returned to her care. At a hearing held on May 19, 2022, 

the juvenile court ordered that once the evaluation of S.D. was complete, the Department 

could return Minor to Mother’s care. The review hearing was continued.

At another hearing on August 17, 2022, the juvenile court ordered that Minor 

could return to Mother’s home for a 29-day visit. Mother’s boyfriend, S.D., had to move 

out of the apartment and needed to have three clean drug tests before moving back in. 

Minor was placed with Mother.

According to an additional report filed on October 1, 2022, after Minor was placed 

with Mother, Mother informed the Department she was being evicted from her apartment. 

Mother did not know where she was going to live. As such, Minor was placed back with 

Mr. and Mrs. W. on August 26, 2022. Also, Mother had tested positive for fentanyl on 

August 30, 2022, and was a no-show for a test on September 2, 2022. Mother called one 

of the social workers to report she was staying in a hotel with S.D. S.D. could be heard 

in the background yelling obscenities. S.D. had failed to submit to drug testing. The 

Department recommended that Mother’s reunification services be terminated and that the 

matter be set for a section 366.26 hearing.

The contested review hearing was conducted on October 25, 2022. Mother 

testified. She had completed all of the court-ordered services. She learned from her 
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substance abuse program not to be around alcohol. She did not know how she tested 

positive for fentanyl. She had never taken the substance in her life. She was willing to 

take responsibility for the positive test. She also denied she missed a drug test. She was 

willing to complete another substance abuse program if the juvenile court would continue 

reunification services. Mother had left S.D. and was looking for housing. Mother’s 

counsel requested six months of additional reunification services. The Department was 

requesting termination of reunification services; there was no substantial probability of 

Minor returning to Mother’s care.

The juvenile court found that Mother had not made substantial progress in her 

court-ordered case plan. Mother had received over two years of services. Mother’s 

reunification services were terminated and the matter was set for a section 366.26 

hearing. Mother’s visits with Minor would be supervised.

D. SECTION 366.26 REPORT, SECTION 388 PETITION, AND HEARING

The section 366.26 report was filed on February 14, 2023. Minor remained in the 

care of Mr. and Mrs. W. They were willing to adopt Minor. Both caregivers had bonded 

with Minor. There was much affection between Mr. and Mrs. W. and Minor. They could 

give Minor the structure and protection that he needed. They were willing to continue 

contact with Mother and Siblings as long as it was positive contact. Mother had been 

granted weekly monitored visits on November 2, 2022, but had been inconsistent in 

visitation as the times conflicted with her work schedule. Mother was advised she could 

have video calls but had been sporadic in her visits. Mother brought snacks to visits. She 

spent one visit allowing Minor to look at her cellular telephone for the majority of the 
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time. Visits ended well with no issues. Termination of parental rights would not be 

detrimental to Minor.

Mother filed a section 388 petition on March 7, 2023. Mother was enrolled in a 

substance abuse program and continued to have negative tests. She had stabilized her 

housing. Mother was requesting that Minor be returned to her care with a family 

maintenance plan, or reinstate reunification services. Mother submitted a declaration 

with the section 388 petition. Since the termination of reunification services, Mother had 

committed herself to meet her case plan goals. She maintained her sobriety and 

surrounded herself with stable family members. Based on her progress, it would be in 

Minor’s best interests to return him to her care or grant further reunification services.

On April 17, 2023, the Department responded to the section 388 petition. Mother 

was interviewed by the Department on April 3, 2023. She was living with an aunt in a 

one-bedroom apartment in Highland. She was looking for housing. She also was 

unemployed. Mother was continuing to attend outpatient alcohol treatment. Mother had 

reported not knowing how she could have ingested fentanyl but then admitted asking a 

friend for muscle relaxers due to injuring her foot. The Department questioned Mother’s 

decisions and whether this could put Minor in jeopardy. The section 388 petition should 

be denied.

On April 17, 2023, the Department reported additional information that Mr. and 

Mrs. W. had changed their mind about adopting Minor as they felt they were too old to 

care for Minor. Minor would have to be moved to a new adoptive home. Later that day, 

Mr. and Mrs. W. contacted the Department and advised they had made a mistake. They 
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wanted to adopt Minor because they loved him and wanted to provide him with a stable 

home. Mother had stated that she was only available for visits with Minor on Mondays

despite the Department offering her bus passes to visit Minor. Mother was only willing 

to visit when her aunt could give her a ride. Mother also provided documentation that 

she had attended 50 sessions of substance abuse programs. She had only five absences 

and it was reported she was doing excellent in the program. She continued to test 

negative.

The contested section 366.26 hearing and determination of whether an evidentiary 

hearing on the section 388 petition would be granted was conducted on May 17, 2023. 

The juvenile court denied the section 388 petition without a hearing, as will be discussed 

in more detail post.

The juvenile court then conducted the section 366.26 hearing. Mother’s counsel 

argued for the lesser plan of legal guardianship. Mother had been consistent in her 

visitation. She had attempted to reschedule any missed visits based on her work 

schedule. Mother’s counsel also noted that Mr. and Mrs. W. had been debating whether 

to adopt Minor. The legal guardianship would benefit Mother and the caregivers.

The Department argued that parental rights should be terminated. Minor was 

highly adoptable. He referred to the caretakers as “mommy and daddy.” Their love for 

Minor outweighed any concerns the caregivers had about adoption. Granting legal 

guardianship would not provide the permanency and stability to which four-year-old 

Minor was entitled.
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The juvenile court found that Minor was adoptable. It further found that the 

“Caden C.[2]factors do not apply to this child. Termination of parental rights would not 

be detrimental to him. There’s no exception pursuant to .21(c) so the Court orders 

termination of parental rights.” Mother’s parental rights were terminated, and Minor was 

freed for adoption.

DISCUSSION

A. SECTION 388 PETITION—DENIAL WITHOUT HEARING

Mother contends the juvenile court should have held a hearing on her section 388 

petition. Mother insists that she presented prima facie evidence of changed 

circumstances and that it was in Minor’s best interests to conduct the full hearing as she 

had continued her substance abuse treatment and tested negative after reunification 

services were terminated.

1. RULING ON SECTION 388 PETITION

Mother’s counsel argued that a full evidentiary hearing on the section 388 petition 

was necessary; the Department objected to the hearing. Mother’s counsel argued that a 

hearing should be conducted in order for her to testify about her progress. Further, she 

could call any counselors who had helped her. Mother had shown more than “changing” 

circumstances. Mother had attended over 50 sessions of substance abuse programs. 

Mother would graduate from the substance abuse program on June 1, 2023. Mother had 

2

 In re Caden C. (2021) 11 Cal.5th 614 (Caden. C.).
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tested negative since the termination of her reunification services. She had ended her 

relationship with S.D. and was in a stable environment.

The Department argued that Mother had not shown changed circumstances. 

Mother remained in the substance abuse program. She had not shown a substantial 

period of sobriety. Moreover, there was no showing that it was in Minor’s best interests

to conduct the section 388 hearing. Minor was in a stable home where he would be 

adopted. Minor’s counsel joined the Department. Mother had received two years of 

services and still had not completed her substance abuse program.

The juvenile court confirmed that the fentanyl test was in August 2022. The 

juvenile court “applauded” Mother for her efforts. However, “it’s still in flux, it’s still 

changing and there hasn’t been a substantial space of time for this Court to grant her 388. 

That will be denied.”

2. ANALYSIS

“Under section 388, a parent may petition to modify a prior order ‘upon grounds 

of change of circumstance or new evidence.’ [Citations.] The juvenile court shall order a 

hearing where ‘it appears that the best interests of the child . . . may be promoted’ by the 

new order.” (In re K.L. (2016) 248 Cal.App.4th 52, 61 (K.L.) “ ‘There are two parts to 

the prima facie showing: The [petitioner] must demonstrate (1) [either] a genuine change 

of circumstances or new evidence, and that (2) revoking the previous order would be in 

the best interests of the [child].’ ” (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1079.)

“ ‘A prima facie case is made if the allegations demonstrate that these two 

elements are supported by probable cause. [Citations.] It is not made, however, if the 
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allegations would fail to sustain a favorable decision even if they were found to be true at 

a hearing. [Citations.] While the petition must be liberally construed in favor of its 

sufficiency [citations], the allegations must nonetheless describe specifically how the 

petition will advance the child’s best interests.’ [Citation.] In determining whether the 

petition makes the required showing, the court may consider the entire factual and 

procedural history of the case.” (K.L., supra, 248 Cal.App.4th at pp. 61-62; see In re 

Anthony W. (2001) 87 Cal.App.4th 246, 250.)

“The conditional language of section 388 makes clear that the hearing is only to be 

held if it appears that the best interests of the child may be promoted by the proposed 

change of order, which necessarily contemplates that a court need not order a hearing if 

this element is absent from the showing made by the petition.” (In re Zachary G. (1999) 

77 Cal.App.4th 799, 807, fn. omitted.) “After the termination of reunification services, 

the parents’ interest in the care, custody and companionship of the child are no longer 

paramount. Rather, at this point ‘the focus shifts to the needs of the child for permanency 

and stability’ [citation], and in fact, there is a rebuttable presumption that continued foster 

care is in the best interests of the child. [Citation.] A court hearing a motion for change 

of placement at this stage of the proceedings must recognize this shift of focus in 

determining the ultimate question before it, that is, the best interests of the child.” (In re 

Stephanie M. (1994) 7 Cal.4th 295, 317.)

“We review a juvenile court’s decision to deny a section 388 petition without an 

evidentiary hearing for abuse of discretion.” (K.L., supra, 248 Cal.App.4th at p. 62.) “It 
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is rare that the denial of a section 388 motion merits reversal as an abuse of discretion.” 

(In re Kimberly F. (1997) 56 Cal.App.4th 519, 522.)

Mother insists she had shown changed circumstances by attending the substance 

abuse program beginning on November 17, 2022—after reunification services were 

terminated—and was consistently attending and testing negative. As of the filing of the 

section 388 petition on March 7, 2023, Mother was still in the process of receiving 

substance abuse treatment. Her graduation date was June 1, 2023.

Prior to the termination of reunification services, Mother had completed a 

substance abuse program and was on track to have Minor placed back in her care. The 

juvenile court granted unsupervised visits and the plan was to place Minor back with 

Mother with Family Maintenance services. She was given a 29-day visit, which had to 

be terminated early because she was evicted from her apartment. Despite being given the 

chance to end the dependency, Mother relapsed, testing positive for fentanyl, and then 

failing to show for a drug test. Mother first claimed she had no idea how the fentanyl

was in her system, and then acknowledged taking something given to her by a friend. At 

this point, the dependency proceedings had been ongoing for over two years and Mother 

had been sober for almost one year. Mother was given an opportunity to regain custody 

of Minor but was unable to maintain her sobriety. 

Mother had Minor removed from her care not only because the juvenile court 

found that Mother’s substance abuse impacted her ability to care for Minor, but also 

because substances were found in the apartment that were accessible to Minor. 

Marijuana baggies and pills were found out in the open in her apartment. Mother’s 
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relapse by using fentanyl was particularly concerning as she initially denied any 

knowledge of how it could appear in her system. Later, Mother admitted she asked a 

friend for a muscle relaxer and it could have contained fentanyl. The juvenile court could 

reasonably be concerned that Mother may expose Minor to controlled substances and that 

she would be unable to maintain her sobriety in order to care for Minor. 

Mother insists that she had shown prima facie evidence that it was in Minor’s best 

interests to be returned to her care or for the extension of reunification services. She

insists she had overcome her substance abuse problem. However, Mother had completed 

a substance abuse program in October 2021. Almost one year later, in August 2022, prior 

to the termination of reunification services, Mother relapsed, with a much more potent 

drug than alcohol, by testing positive for fentanyl. Further, Mother initially did not 

accept responsibility for the positive test. This was similar to Mother initially denying to 

the Department that there was marijuana and pills in the apartment when law 

enforcement arrived at her apartment after Z.P.’s death. However, photographs provided 

by law enforcement clearly showed the illegal substances out in the open in the apartment 

and easily accessible to Minor. Mother had not completed the second substance abuse 

program, and despite making progress by attending sessions, and testing negative, the 

juvenile court did not abuse its discretion by considering this as evidence of only 

changing circumstances.

Mother also insists she had a strong bond with Minor. She acknowledges that 

Minor was bonded to the adoptive parents but insists she had a strong bond with Minor. 

The Department reported that at the initial visits between Mother and Minor, Mother had 
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a very difficult time controlling Minor. As the visits continued, and after Minor had been 

placed with Mr. and Mrs. W. for four months, Mother became better at controlling 

Minor. She was loving and supportive of Minor. However, there was nothing that 

supports that Minor was bonded to Mother. Some visits with Mother were unsupervised 

so no report of their interactions was provided. Moreover, during one visit, Mother 

entertained Minor on her cellular telephone and the Department was unable to assess any 

bond between them. There were reports that visits ended well and there were no issues. 

However, there were no reports of any change in behavior by Minor at the end of visits, 

or that he had any particular bond with Mother, with whom he had been out of her 

custody for over two years. He was bonded with Mr. and Mrs. W., and considered them 

“mommy” and “daddy.” There was a strong bond between Mr. and Mrs. W., and Minor, 

but no evidence of any true bond between Mother and Minor. Mother failed to show it 

was in Minor’s best interests to order a hearing.

The juvenile court was presented with evidence of Mother’s ongoing participation 

in a substance abuse program. She had not completed the program and Minor had been 

out of her care for over two years; he spent half of his life in the care of other persons. 

Mother failed to make a prima facie showing of changed circumstances or new evidence 

that it was in Minor’s best interests to be returned to Mother’s care. The juvenile court 

did not abuse its discretion by concluding that Mother had only shown changing

circumstances and that it was not in Minor’s best interests to restart reunification services 

or return Minor to Mother’s care.
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B. BENEFICIAL PARENT EXCEPTION TO SECTION 366.26

Mother contends that she met the beneficial parental benefit exception to 

termination of her parental rights by showing that she maintained regular visitation with 

Minor and that Minor would benefit from continuing the relationship with her. It was 

detrimental to Minor to sever the parental relationship and the order at the section 366.26 

hearing freeing Minor for adoption by Mr. and Mrs. W. should be reversed.

“ ‘At a permanency plan hearing, the court may order one of three alternatives: 

adoption, guardianship or long-term foster care. [Citation.] If the dependent child is 

adoptable, there is a strong preference for adoption over the alternative permanency 

plans.’ [Citation.] ‘Once the court determines the child is likely to be adopted, the 

burden shifts to the parent to show that termination of parental rights would be 

detrimental to the child under one of the exceptions listed in section 366.26, subdivision 

(c)(1).’ ” (In re B.D. (2021) 66 Cal.App.5th 1218, 1224-1225.) In order to prove that the 

parental bond exception applies, a parent must show (1) consistent visitation; (2) a 

beneficial relationship; and (3) detriment to the children in losing that relationship. 

(Caden C., supra, 11 Cal.5th at p. 635.)

“A parent’s continued struggles with the issues leading to dependency are not a 

categorical bar to applying the exception.” (Caden C., supra, 11 Cal.5th at p. 637.) 

However, “Issues such as those that led to dependency often prove relevant to the 

application of the exception. . . . A parent’s struggles may mean that interaction between 

parent and child at least sometimes has a ‘ “negative” effect’ on the child.” (Ibid.)
20

“[C]ourts should not look to whether the parent can provide a home for the child; 

the question is just whether losing the relationship with the parent would harm the child 

to an extent not outweighed, on balance, by the security of a new, adoptive home.” 

(Caden C., supra, 11 Cal.5th at p. 634.) “A child would benefit from continuing a strong, 

positive, and affirming relationship, and it would be destabilizing to lose that 

relationship. Sometimes, though, a relationship involves tangled benefits and burdens. 

In those cases, the court faces the complex task of disentangling the consequences of 

removing those burdens along with the benefits of the relationship.” (Ibid.) 

“[C]onsideration of the beneficial relationship exception is a ‘fraught determination’ that 

requires the juvenile court to ‘sift through often complicated facts to weigh competing 

benefits and dangers for the child[,] . . . consider practical realities over which it has 

limited control and envision a child’s future under contingent conditions.” (In re J.D.

(2021) 70 Cal.App.5th 833, 869.)

“A substantial evidence standard of review applies to the first two elements. The 

determination that the parent has visited and maintained contact with the child 

‘consistently,’ taking into account ‘the extent permitted by the court’s orders’ [citation] is 

essentially a factual determination. It’s likewise essentially a factual determination 

whether the relationship is such that the child would benefit from continuing it.” (Caden 

C., supra, 11 Cal.5th at pp. 639-640.) “[T]he ultimate decision—whether termination of 

parental rights would be detrimental to the child due to the child’s relationship with his 

parent—is discretionary and properly reviewed for abuse of discretion.” (Caden C., 

supra, 11 Cal.5th at p. 640.) “A court abuses its discretion only when ‘ “ ‘the trial court 
21

has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently 

absurd determination.’ ” ’ ” (Id. at p. 641.)

Initially, the juvenile court stated on the record that the Caden C. factors did not 

apply in this case, but did not recite its findings as to the factors. When the juvenile court 

finds the parental benefit exception does not apply, there is no requirement that the 

juvenile court state its findings on the record. (See In re A.L. (2022) 73 Cal.App.5th 

1131, 1156 [“[W]e are aware of no requirement . . . that the juvenile court, in finding the 

parental-benefit exception inapplicable, must recite specific findings relative to its 

conclusions regarding any or all of the three elements of the exception”].) While the trial 

court did not state on the record the specific findings regarding visitation and detriment, 

the juvenile court was aware of the Caden C. factors. We must presume that the juvenile 

court properly considered all three factors.

Mother relies on In re D.P. (2022) 76 Cal.App.5th 153, 169, to support her claim 

that remand is necessary in order for the juvenile court to conduct a new section 366.26 

hearing setting forth its reasons for denying the parental-benefit exception. In D.P., the 

appellate court remanded the case to the juvenile court in order for it to conduct a new 

section 366.26 hearing because the juvenile court did not provide its specific analysis on 

the record and it was not clear whether it considered improper factors which did not 

comport with Caden C., supra, 11 Cal.5th 614. (D.P., at pp. 166-167, 169.) Unlike the 

instant case, Caden C., had not yet been decided when the juvenile court ruled on the 

parental-benefit exception in D.P. The case was reversed and remanded to allow the 

juvenile court to reconsider the parental-benefit exception in accordance with Caden C. 
22

This case was decided after Caden C. and the juvenile court specifically stated that the 

factors did not apply. There is no indication in the record that the juvenile court relied on 

improper factors in denying the parental-benefit exception and we presume it properly 

followed Caden C.

The record supports the denial of the exception. It was Mother’s burden to show 

that the exception applied. (In re B.D., supra, 66 Cal.App.5th at pp. 1224-1225.) 

The juvenile court properly concluded that Mother had not been consistent in 

visitation. The record supports that Mother was sporadic in her visits with Minor after 

the termination of her reunification services. The Department noted that she had missed 

visits and was advised she could have video visits but appeared to not take advantage of 

the Department’s offer. Mother advised the Department that she could only visit with 

Minor on Monday mornings when her aunt was available to drive her. The Department 

offered a bus pass to visit with Minor, but she refused. Her visits remained sporadic prior 

to the section 366.26 hearing. Mother did not meet her burden of showing that she

maintained consistent visitation with Minor. 

As for the second prong, the record does not support that Mother and Minor had a 

beneficial relationship. Minor had been out of Mother’s care for over two years. When 

the dependency first started, Mother had a hard time controlling Minor. During visits, 

Minor was out of control, and she and Siblings had to spend their visitation time trying to 

control Minor. Mother eventually was able to control Minor as he became calmer after 

moving in with Mr. and Mrs. W. Mother was allowed unsupervised visits at which there 
23

was no one to observe the interactions between Mother and Minor but visits appeared to 

be appropriate, but unremarkable.

Mother was granted a long-term visit with Minor, but had to return Minor to the 

care of Mr. and Mrs. W when she was evicted and had no place to live. It was after this 

that Mother tested positive for fentanyl and visits were supervised. The reports from the 

supervised visits did not provide further evidence of a beneficial relationship between 

Mother and Minor. Although the visits went well, Mother entertained Minor on her 

cellular telephone so it was not clear how they interacted together. There was no change 

in Minor’s behavior when visits were terminated. Mother did not show that there was a 

positive, emotional attachment between her and Minor to meet the second prong of 

Caden C. 

Finally, there was no evidence of a strong bond between Minor and Mother, which 

would establish a detriment to Minor if the relationship was terminated. (See Caden C., 

supra, 11 Cal.5th at p. 634 [“In many cases, ‘the strength and quality of the natural 

parent/child relationship’ will substantially determine how detrimental it would be to lose 

that relationship, which must be weighed against the benefits of a new adoptive home”].) 

Minor’s bond with Mr. and Mrs. W. was strong and they helped to provide the stability

that appeared to help his behavior. Minor called Mr. W. “dad” or “uncle” and was happy 

living in the W.’s home. As stated, there was no evidence of a strong bond between 

Mother and Minor. Mother was unable to establish that the detriment of severing her 

parental relationship with Minor outweighed the benefit of adoption. 
24

The juvenile court properly took into account the factors in Caden C. in 

determining the beneficial parental relationship exception did not apply. While we 

recognize that Mother had worked hard to overcome her substance abuse problems, she 

did not meet her burden of showing that termination of her parental rights to Minor 

would be detrimental to Minor and outweighed the benefit of the placement in the 

adoptive home. (Caden C., supra, 11 Cal.5th at p. 633.) The juvenile court did not 

exceed “ ‘ “ ‘the limits of legal discretion by making an arbitrary, capricious, or patently 

absurd determination.’ ” ’ ” (Id. at p. 641.) We uphold the order at the section 366.26 

hearing terminating Mother’s parental rights. 

DISPOSITION

The juvenile court’s order is confirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

Acting P. J.

We concur:

CODRINGTON

J.

MENETREZ

J.