Filed 1/27/23 In re E.P. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re E.P. et al., Persons Coming 

Under the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH 

AND HUMAN SERVICES 

AGENCY,

Plaintiff and Respondent,

v.

V.R.,

Defendant and Appellant.

 D080757

 (Super. Ct. Nos. SJ13124B-D)

APPEAL from orders of the Superior Court of San Diego County, 

Michael P. Pulos, Judge. Affirmed. 

Jamie A. Moran, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

Claudia G. Silva, County Counsel, Caitlin E. Rae, Chief Deputy County 

Counsel, and Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and 

Respondent. 
2

This case follows a familiar pattern. A dependency case is initiated 

because the parent suffers from a significant substance abuse disorder. 

Reunification services include substance abuse treatment, but for any 

number of understandable reasons the parent makes inconsistent progress in 

treatment for their addiction, often experiencing relapses. Ultimately, 

reunification services are discontinued and a hearing is set to terminate 

parental rights. In the meantime, the children who are the subject of the 

dependency petition have adjusted reasonably well to placement with a 

prospective adoptive family. 

But initial struggles in treatment often provide the foundation for later 

success. And when the parent sees some initial progress, they typically file a 

petition under Welfare and Institutions Code1 section 388 seeking to forestall

the anticipated adoption by modifying the existing juvenile court orders.

These petitions invoke our fundamental need to believe in the resilience of 

the human spirit, and nearly always involve difficult (and sometimes heartwrenching) decisions by juvenile court judges in light of constantly evolving 

circumstances. The decisions require judges to critically assess the parent’s 

progress in recovery in conjunction with the children’s need for permanence 

and stability. Demanding as it is, this evaluation is one that the juvenile 

court is best suited to make. 

In this case, V.R. (Mother) appeals a juvenile court order summarily 

denying her section 388 petition as to three of her minor children. Her 

petition requested modification of a March 2021 order that found return of 

the children to Mother would be detrimental to the children’s physical or 

emotional well-being. Mother also challenges the juvenile court’s order 

1 All undesignated statutory references are to the Welfare and 

Institutions Code. 
3

terminating her parental rights under section 366.26. She contends the court 

should have applied the beneficial parent-child relationship exception to 

adoption pursuant to section 366.26, subdivision (c)(1)(B)(i)). Relying on the 

thoughtful judgment of the dependency judge, we disagree and affirm the 

orders. 

FACTUAL AND PROCEDURAL BACKGROUND

In 2019, Mother and J.P. (Father) lived together with their three minor 

children—E.P. (three years old), M.P. (one year old), and A.P. (born in 

September 2019) (collectively, the children).2 In October 2019, A.P.’s 

umbilical cord tested positive for methamphetamine shortly after his birth. A 

referral was made to the San Diego County Health and Human Services 

Agency (Agency), and Mother admitted she used methamphetamine during 

and after her pregnancy with A.P. 

Approximately one month after A.P.’s birth, police responded to the 

family’s residence to address a call regarding domestic violence. When they

arrived, Father was inside the home with the children but Mother was not 

present. Police searched the home and found drug paraphernalia within 

reach of the youngsters. Father was arrested and the children were taken to

their grandparents’ homes. 

Some three weeks later, the Agency filed juvenile dependency petitions 

alleging the children were within the jurisdiction of the juvenile court 

pursuant to section 300, subdivision (b). Specifically, the petitions claimed

the children suffered, or were at substantial risk of suffering, serious physical 

harm as a result of Mother’s continuing drug use. They also referenced a 

prior dependency case in which Mother’s child tested positive for 

2 Father is not a party to this appeal and will be discussed only when 

relevant. 
4

methamphetamine at his birth in 2015.3 The petitions asserted that Mother 

continued to use drugs despite participating in treatment programs in her 

prior dependency case. 

A. Initial Dependency Proceedings

The juvenile court addressed the dependency petitions at the detention 

hearing in early November. The court made prima facie findings on the 

petitions and detained the children at Polinsky Children’s Center or an 

approved foster home. It ordered supervised visitation with the children and 

voluntary services for the parents. The matter was then set for a jurisdiction 

and disposition hearing.

In the month following the detention hearing, Mother repeatedly failed 

to attend her scheduled visits with the assigned social worker. But in 

December 2019, Mother expressed interest in receiving inpatient substance 

abuse treatment. She enrolled in a drug treatment program and obtained a 

sponsor, later transitioning to a different program. The juvenile court then

ordered the parents to participate in dependency drug court. 

At the jurisdiction and disposition hearing in February 2020, the 

juvenile court made true findings on the petitions and declared the children 

dependents of the juvenile court. They were formally removed from the 

3 Mother’s prior dependency case involves a minor who is not the subject 

of this appeal, but who is referenced by the parties and in the record as 

evidence of Mother’s extensive history of drug use. The record demonstrates 

that, as part of the prior dependency case, the Agency offered Mother 

substance abuse treatment services. Initially, Mother was compliant with 

the programs offered to her by the Agency and she completed a drug 

treatment program and parenting classes. But she failed to maintain 

consistency in the treatment services and drug testing, and the child was

ultimately placed with his father. A.P. was born with methamphetamine in 

his system approximately two months after this child was removed from 

Mother’s custody.
5

parents’ custody and placed in a foster home. The court ordered the Agency 

to provide the parents with reunification services and set the matter for 

subsequent review hearings.

B. Review Hearings

For several months following the jurisdiction and disposition hearing, 

Mother maintained employment and pursued therapy, drug treatment, and 

parenting classes. She also participated in dependency drug court and 

submitted negative drug tests. Mother received positive feedback from her 

service providers and the Agency allowed her to have unsupervised visits 

with the children. But in early August 2020, Mother relapsed and admitted 

to methamphetamine use.

The Agency submitted a status review report to the juvenile court that 

documented Mother’s treatment progress and subsequent relapse. At the sixmonth review hearing in August 2020, the juvenile court found that Mother’s 

progress toward alleviating or mitigating the causes leading to the children’s 

placement was adequate. It ordered the Agency to continue to provide 

reunification services to Mother.

Prior to the 12-month review hearing, the Agency submitted a status 

review report and addendum report to the juvenile court. In the reports, the 

Agency documented Mother’s failure to maintain consistent contact with the 

Agency. It further reported that Mother struggled to maintain her sobriety, 

continued to use drugs, and inconsistently participated in drug court. While 

Mother did reenter a drug treatment program in early 2021, she was later

discharged from the program and again lost contact with the Agency. The 

Agency recommended that the juvenile court terminate reunification services 

and set the matter for a section 366.26 hearing. 
6

At the 12-month review hearing in March 2021, the juvenile court 

found that return of the children to Mother’s custody would create a 

substantial risk of detriment to the children’s physical or emotional wellbeing. It also determined that the Agency had provided the parents with 

reasonable reunification services, but that the parents had made minimal 

progress. Accordingly, the court terminated reunification services for both 

parents and set the matter for a section 366.26 hearing. 

C. Children’s Progress During the Reunification Period 

During the reunification period, the children were placed in separate 

foster homes, and each child required additional care and services. E.P. 

exhibited speech and developmental delays and had behavioral problems that 

affected his ability to interact with his caregivers, siblings, and peers. As a 

result, he required behavioral and occupational therapy. M.P. had medical 

issues related to a fibrous cyst, and he received speech therapy and other

services through the San Diego Regional Center. A.P. displayed motor delays 

and was not appropriately meeting the expected milestones for a child of his 

age. He received physical therapy to improve his development and other

services through the San Diego Regional Center. 

In March 2021, the Agency indicated that the children were receiving 

the appropriate care and services to meet their needs and were doing well in 

their respective foster homes. E.P. was enrolled in preschool and was 

reportedly having fewer behavioral outbursts. M.P. was attending both 

preschool and speech therapy, and he was able to use two-word phrases and 

sign language. A.P. was receiving physical therapy and had started to walk. 
7

D. Section 366.26 Hearing and Section 388 Petition

1. Addendum Reports

In preparation for the section 366.26 hearing, the Agency asked for 

several continuances to pursue adoption options for the children. During this 

time, the Agency submitted several addendum reports that were entered into 

evidence at the section 366.26 hearing without objection. The addendum 

reports documented that the children’s maternal great-aunt, C.G., expressed 

interest in adopting them. C.G. underwent an assessment process with the 

Agency and in January 2022 all three children were placed in her custody. 

Thereafter, C.G. reported that the children were bonded with her and doing 

well. She regularly followed-up with the children’s recommended services, 

therapies, and school meetings. C.G. confirmed that she was motivated to 

adopt the children and she completed classes related to their adoption. 

The addendum reports further discussed the children’s relationship 

with Mother. C.G. said that only E.P. remembered his parents because M.P. 

and A.P. were very young when they were placed in foster care. She

indicated that after M.P. and A.P. interacted with Mother, they were able to 

transition back to her care without concern. In contrast, when E.P.’s visits 

with Mother concluded, he became upset and asked to go home with her.

C.G. observed Mother and E.P. tell each other “I love you” and “I miss you,”

and she believed they shared a loving relationship. 

The Agency reported that Mother struggled to maintain her sobriety 

during this timeframe. In January 2022, she gave birth to another child who 

tested positive for controlled substances. But following the birth of this child, 

Mother stopped using drugs, completed a three-month residential treatment 

program, and transitioned to outpatient treatment. During her treatment, 

she continued to have in-person and telephonic visitation with the children. 
8

In the addendum reports, the Agency described Mother’s hard work in 

her treatment program. Even so, it expressed concern about Mother’s ability 

to maintain her sobriety outside the structured environment of an inpatient 

treatment program. The Agency also stated that although they appeared to 

enjoy their visits with Mother, the children did not seek her out to meet their 

needs. The reports noted that the children were doing well with C.G., who 

continued to pursue their adoption. Consequently, the Agency concluded that 

the benefits of adoption outweighed the value of a continued relationship 

between Mother and the children. 

2. Section 388 Petition

A day prior to the July 2022 section 366.26 hearing, Mother filed a 

section 388 modification petition. The petition sought to change the March 

2021 order finding that placement of the children with Mother was 

detrimental to the children. Mother asked the juvenile court to return 

placement of the children to her.4 

In support of her petition, Mother provided letters from her drug 

treatment program and a drug court representative. The letters confirmed 

that Mother completed a residential program in April 2022 and was engaged 

4 In her opening brief, Mother construes her section 388 petition to 

include a request for additional reunification services and further visitation 

with the children. The Agency contends Mother forfeited this claim because 

she failed to raise the issue with the juvenile court. We disagree with the 

Agency’s contention. The juvenile court was required to liberally construe 

the section 388 petition in favor of its sufficiency. (In re D. R. (2007) 155 

Cal.App.4th 480, 487.) Under this standard, Mother’s request to modify the 

March 2021 order encompassed the interrelated orders within the document, 

including the order terminating reunification services. If the juvenile court 

had concluded that return of the children to Mother was appropriate, this 

would have affected other orders within the same document, including the 

order terminating reunification services. Accordingly, we conclude the issue 

was not forfeited. 
9

in her outpatient program. She also provided proof of negative drug tests and 

a declaration that she had been sober since January 2022. Mother further 

stated she was employed and living in a sober living home that would allow 

the children to reside with her. 

After hearing argument from the parties, the juvenile court concluded

that Mother did not make a prima facie showing of changed circumstances,

and accordingly denied the petition. It specifically found that the 

circumstances related to Mother’s drug use were changing—but not 

sufficiently changed—to warrant a modification of the prior order. While the 

court did commend Mother’s treatment progress in the six months prior to 

the section 366.26 hearing, it explained that a six-month period of sobriety 

was relatively short given Mother’s long history of substance abuse. The 

court ultimately determined it was not in the best interests of the children to 

modify the order due to the length of the case and the children’s need for 

permanence and stability. 

3. Section 366.26 Hearing

After denying the section 388 petition, the juvenile court proceeded to 

address the termination of parental rights. Without objection, the Agency 

offered into evidence the section 366.26 report and seven addendum reports. 

Mother, Father, and a social worker assigned to the children’s case also 

testified. 

The social worker testified that the benefits of adoption for the children 

outweighed the value of a continued relationship with Mother. Specifically, 

she noted that E.P. did not cry or ask for Mother when he was home with 

C.G. because he had become acclimated to being away from his parents. The 

social worker further explained that while there was an initial adjustment 

period for M.P. when he began living with his siblings, C.G. provided a safe, 
10

family-oriented environment with which he ultimately became comfortable. 

As to A.P., the Agency believed that C.G. provided him with the medical and 

therapeutic services he needed to feel safe and stable. 

The social worker also indicated that the children’s caregiver and 

prospective adoptive parent—their maternal great-aunt—was hopeful the 

children would continue to have contact and a relationship with Mother. 

Still, the juvenile court acknowledged that it could not presume the relative 

caregiver would allow the parental relationship to continue following 

adoption. The social worker responded by stating that, even assuming the 

children’s adoptive parents did not allow the children to have contact with 

Mother, the benefits of adoption outweighed a continued parental

relationship. 

Mother also testified. She acknowledged her battle with addiction but 

maintained she would like to be sober and a part of her children’s lives. She 

indicated that during her visits with the children, they called her “Mom” and 

gave her hugs and kisses. Mother went on to discuss an incident that led to

the termination of her visits with the children at their visitation center. She

admitted answering her cellphone during a visit with the children, but 

explained that the call was from the house manager at her sober living home 

regarding a potential COVID-19 exposure. 

After the conclusion of evidence, Mother asked the juvenile court to find 

that the beneficial parent-child relationship exception to adoption applied. 

She argued that her visitation with the children was largely consistent 

throughout the case and a continued parental relationship would benefit the 

children. She relied on the fact that the children were excited to see her 

during their visits and maintained that terminating their relationship would 
11

be detrimental. Mother accordingly requested that the court order a 

guardianship in lieu of adoption. 

In making its ruling, the juvenile court noted that the evidence clearly 

showed the parents loved the children, and the children had affection for 

their parents. Addressing the legal and factual issues presented by the case,

it found that the children were both generally and specifically adoptable. The 

court then proceeded to address Mother’s argument regarding the beneficial 

parent-child exception to adoption. It recognized that the exception included

three elements: (1) regular visitation and contact; (2) a beneficial parental 

relationship; and (3) overall detriment to the children from a termination of 

that relationship. 

Although it termed both issues “close,” the juvenile court found that 

Mother had met her burden as to each of the first two elements. It concluded, 

however, that the third element had not been proven by a preponderance of 

the evidence. The court framed the dispositive issue as follows: “Does the 

benefit of placement in a new adoptive home outweigh the harm the children 

would experience from the loss of a significant, positive, emotional 

relationship with the parent?” In discussing this inquiry, the court reiterated

that the evidence clearly showed the parents loved the children. But it then

weighed this finding against the benefits of stability and permanency that 

had been sought for the children from the inception of the case. The juvenile 

court ultimately concluded that the benefits of adoption outweighed the 

detriment of ending the parental relationship. In ordering the termination of 

parental rights, it found by clear and convincing evidence that none of the 

exceptions in section 366.26, subdivision (c)(1) applied, and that adoption was 

in the best interests of the children. 
12

DISCUSSION

A. Section 388 Petition

Mother argues the juvenile court erred by summarily denying her 

section 388 petition without first conducting an evidentiary hearing. She

contends she presented abundant evidence of changes she made in her life 

since the March 2021 order finding that return of the children to her custody 

would be detrimental. Specifically, Mother asserts that evidence of her 

sobriety, completion of a drug treatment program, housing, and employment 

constituted sufficiently “changed circumstances” that would justify

modification of the prior court order. She also maintains that modification of 

the March 2021 order was in the best interests of the children because it

would have allowed the children to continue their relationship with and be 

raised by their own mother. 

The Agency responds that Mother failed to make a prima facie showing 

of changed circumstances sufficient to justify modification of the juvenile 

court’s order. It notes that Mother was offered substance abuse treatment in 

a prior dependency case, as well as in this case, and she nonetheless failed to 

maintain her sobriety. While it commended Mother’s recent six-month period 

of sobriety, the Agency argued that relative to the length of Mother’s history 

of drug use, her recent sobriety constitutes “changing” rather than “changed”

circumstances. It further contends that modification of the order was not in 

the children’s best interests because it would disrupt the stability the

children experienced with their caregiver. 

Section 388, subdivision (d), allows for the modification of a juvenile 

court order when “the best interests of the child or nonminor dependent may 

be promoted by the proposed change of order. . . .” (§ 388, subd. (d).) A 

petition to modify the court’s order under section 388 must: (1) present new 
13

evidence or a change of circumstances; and (2) demonstrate that a 

modification of the order is in the children’s best interests. (In re Samuel A. 

(2020) 55 Cal.App.5th 1, 6–7; In re Stephanie M. (1994) 7 Cal.4th 295, 317 

(Stephanie M.).) A section 388 petition should be liberally construed in favor 

of its sufficiency. (In re D. R. (2007) 155 Cal.App.4th 480, 487.) However, 

once reunification services are terminated, the juvenile court’s focus is on the 

children’s needs for “ ‘permanency and stability.’ ” (Stephanie M., at p. 317.) 

The moving party is entitled to an evidentiary hearing on the section 

388 petition if they have made a prima facie showing of the two requisite 

elements. (In re J.P. (2014) 229 Cal.App.4th 108, 127.) A prima showing is 

made when “the facts alleged, if supported by evidence given credit at the 

hearing, would sustain a favorable decision on the petition.” (Ibid.) “ ‘[I]f the 

liberally construed allegations of the petition do not make a prima facie 

showing of changed circumstances and that the proposed change would 

promote the best interests of the child, the court need not order a hearing on 

the petition.’ [Citations.]” (In re Daniel C. (2006) 141 Cal.App.4th 1438, 

1445.) The juvenile court may consider the entirety of the “factual and 

procedural history of the case” in determining whether a prima facie showing 

has been made. (In re K.L. (2016) 248 Cal.App.4th 52, 62.) We review an 

order summarily denying a section 388 petition without an evidentiary 

hearing under an abuse of discretion standard. (In re G.B. (2014) 227 

Cal.App.4th 1147, 1158.) 

With respect to the first element, the change in circumstances alleged 

in support of a section 388 petition must be substantial in nature. (In re 

Ernesto R. (2014) 230 Cal.App.4th 219, 223 (Ernesto R.).) “A parent 

establishes a substantial change of circumstances for purposes of section 388

by showing that, during the period between termination of reunification 
14

services and the permanency planning hearing, he or she has resolved the 

previously unresolved issues supporting juvenile court jurisdiction.” (In re 

J.M. (2020) 50 Cal.App.5th 833, 846.) Evidence of changing, rather than 

changed, circumstances is insufficient to justify the modification of a prior 

order under section 388. (In re Alayah J. (2017) 9 Cal.App.5th 469, 482; 

Ernesto R., at p. 223.) “In the context of a substance abuse problem that has 

repeatedly resisted treatment in the past, a showing of materially changed 

circumstances requires more than a relatively brief period of sobriety or 

participation in yet another program.” (In re N.F. (2021) 68 Cal.App.5th 112, 

121; see also Ernesto R., at p. 223 [for the purposes of a section 388 petition, 

the parent’s recent sobriety reflected changing, rather than changed

circumstances, where the parent had a history of drug relapses, was in the 

early stages of recovery, and was still addressing a chronic substance abuse 

problem].) 

The juvenile court found that Mother’s recent sobriety and progress in 

her treatment programs constituted circumstances that were in the process of 

changing, but had not yet changed. Admittedly, where exactly that tipping 

point lies will depend on a host of subtle factors unique to the individual case, 

and we must necessarily defer to the court’s familiarity with the parties and 

experience with the dependency case. Here, while praising Mother’s efforts, 

the dependency judge emphasized that her six-month period of sobriety and 

participation in drug treatment was relatively short when compared with her 

extensive history of substance abuse. 

We conclude the record supports the juvenile court’s findings. 

Although Mother’s recent commitment to her sobriety is unquestionably 

commendable, the evidence shows she had a history of relapse following her 

participation in treatment programs. This is not to be critical of Mother; 
15

relapse is often part of the recovery process. Yet it represents a particular 

danger for the children. 

Mother’s most recent relapse occurred in January 2022 after she 

participated in both inpatient and outpatient treatment programs. Following

that relapse, she gave birth to her third drug-exposed child. As the juvenile 

court observed, Mother’s six-month period of sobriety is relatively brief when 

compared with her extensive history of drug use and suggests she is still in 

the early stages of her recovery. Thus, the court did not abuse its discretion 

in concluding that Mother’s section 388 petition alleged, at most, changing 

rather than changed circumstances. 

Moreover, even if circumstances had changed, Mother must also allege 

a set of new circumstances indicating that modification of the prior order 

would be in the children’s best interests. Because she filed her section 388 

petition after reunification services were terminated, Mother’s “interest in 

the care, custody and companionship of the child[ren] [was] no longer 

paramount. Rather, at this point ‘the focus shift[ed] to the needs of the 
16

child[ren] for permanency and stability . . . .’ ”5 (Stephanie M., supra, 7 

Cal.4th at p. 317.) The children’s best interests are not served by “further 

delay[ing] permanency and stability in favor of rewarding Mother for her 

hard work and efforts to reunify.” (In re J.C., supra, 226 Cal.App.4th at 

p. 527.) 

When Mother filed her section 388 petition—over a year after 

reunification services were terminated—the children had lived out of 

Mother’s custody since 2019. M.P. and A.P. lived away from Mother from 

most of their lives, and E.P. lived away from Mother for one-half of his life. 

The children’s caregiver reported that M.P. and A.P. did not remember their 

parents because they were too young when they were removed from Mother’s 

custody. And while E.P. did share a loving relationship with Mother, he did 

not ask for her or cry when she was not present. 

By contrast, the children had been living together and doing well in 

their caregiver’s home. They all required and were regularly receiving 

additional services to meet their needs. The evidence demonstrated that the 

5 In support of her argument that modification of the prior order was in 

the children’s best interests, Mother relies on the factors articulated in In re 

Kimberly F. (1997) 56 Cal.App.4th 519, a case involving unsanitary 

conditions in the mother’s home. She nonetheless recognizes that courts have 

declined to apply the Kimberly F. factors because they do not focus on the 

permanency and stability of the children after reunification services have 

been terminated. (See In re J.C. (2014) 226 Cal.App.4th 503, 527 [declining 

to apply the Kimberly F. factors because they did not take the Supreme 

Court’s Stephanie M. analysis into account].) In this case reunification 

services were already terminated when Mother filed her section 388 petition, 

and we therefore decline to apply the Kimberly F. factors. But even were we 

to apply them, they do not assist Mother. The evidence in this case

demonstrated that her extensive history of drug use was unlikely to be easily 

ameliorated—a finding that demonstrates modification was not in the 

children’s best interests under the Kimberly F. analysis. 
17

children had achieved a great sense of stability and permanency with their 

caregiver after spending at least one-half of their lives in the custody of foster 

families. Thus, the record supports the juvenile court’s finding that 

modifying the prior order posed a risk to the stability of the children and was 

not in their best interests.

Accordingly, we conclude the juvenile court did not abuse its discretion 

in denying Mother’s section 388 petition. 

B. Section 366.26 Hearing

Mother argues the juvenile court erred in failing to apply the beneficial 

parent-child relationship exception to overcome the statutory preference for 

adoption. She contends she provided sufficient proof that all three prongs of 

the exception were satisfied. The Agency acknowledges that the juvenile 

court found the first two prongs of the exception were proven. It contends, 

however, that Mother failed to satisfy the third prong and, therefore, the 

exception is inapplicable. We conclude the juvenile court did not abuse its 

discretion when it declined to apply the exception and terminated Mother’s 

parental rights. 

“ ‘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.]” (In re B.D. (2021) 66 

Cal.App.5th 1218, 1224 ( In re B.D.).) Once the juvenile court finds the child 

is adoptable, the burden then shifts to the parent to demonstrate the 

application of a statutory exception to adoption. (Id. at p. 1225; § 366.26, 

subd. (c)(1).) If the parent does not establish the applicability of a statutory 

exception, the juvenile court must terminate parental rights. (In re Katherine 

J. (2022) 75 Cal.App.5th 303, 316 (Katherine J.).) 
18

One such statutory exception is the beneficial parent-child relationship 

exception. (§ 366.26, subd. (c)(1)(B)(i).) This exception applies if “[t]he court 

finds a compelling reason for determining that termination would be 

detrimental to the child” because “[t]he parents have maintained regular 

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

continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) This exception 

requires the parent to prove three elements: “1) regular visitation and 

contact with the child, taking into account the extent of visitation permitted;

(2) a substantial, positive, emotional attachment to the parent—the kind of 

attachment implying that the child would benefit from continuing the 

relationship; and 3) a showing that terminating the attachment would be 

detrimental to the child even when balanced against the countervailing 

benefit of a new, adoptive home.” (In re M.G. (2022) 80 Cal.App.5th 836, 

847.) 

“We review the juvenile court’s findings as to whether the parent has 

maintained regular visitation and contact with the child, as well as the 

existence of a beneficial parental relationship, for substantial evidence.” (In 

re B.D., supra, 66 Cal.App.5th at p. 1225 [citing to In re Caden C. (2021) 11 

Cal.5th 614, 639–640 (Caden C.)].) We do “ ‘not reweigh the evidence, 

evaluate the credibility of witnesses, or resolve evidentiary conflicts’ ” and 

will not disturb the juvenile court’s findings even where substantial evidence 

to the contrary also exists. (Caden C., at p. 640, citations omitted.) “ ‘[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.’ (Ibid.)” A court 

abuses its discretion “ ‘ “ ‘by making an arbitrary, capricious, or patently 

absurd determination.’ ” ’ ” (Id. at p. 641.) 
19

At the outset, we note that the juvenile court found Mother proved the 

first and second prongs of the beneficial parent-child relationship exception. 

(§ 366.26, subd. (c)(1)(B)(i).) The Agency does not contest the juvenile court’s 

findings as to these elements. We accordingly focus on the third element. 

The third element of the beneficial parent-child exception requires the 

juvenile court to determine whether terminating the parental relationship 

would be detrimental to the child. (Caden C., supra, 11 Cal.5th at p. 633.) 

“[I]n assessing whether termination would be detrimental, the trial court 

must decide whether the harm from severing the child’s relationship with the 

parent outweighs the benefit to the child of placement in a new adoptive 

home. [Citation.]” (Id. at p. 632.) This requires the juvenile court to 

determine “how the child would be affected by losing the parental 

relationship—in effect, what life would be like for the child in an adoptive 

home without the parent in the child's life.” (Id. at p. 633.) The juvenile 

court must then weigh the loss of this relationship with “the benefit of 

placement in a new, adoptive home . . . .” (Ibid.) 

Although the third element of the beneficial parent-child exception is 

the only element at issue in this case, the second and third elements of the 

exception “significantly overlap.” (Katherine J., supra, 75 Cal.App.5th at 

p. 317, fn. 7.) “[F]or example, evidence that terminating parental relation 

would cause harm indicates that child would lose important relational 

benefits if severed from parent.” (Ibid.) “When the relationship with a 

parent is so important to the child that the security and stability of a new 

home wouldn’t outweigh its loss, termination would be ‘detrimental to the 

child due to’ the child’s beneficial relationship with a parent.” (Caden C., 

supra, 11 Cal.5th at pp. 633–634.) A parent’s struggles in dealing with the 

issues that led to dependency—in this case drug addiction—“can be relevant 
20

in assessing whether the interaction between parent and child ‘has a 

“ ‘negative effect’ ” on the child.’ [Citation.]” (In re D.P. (2022) 76 

Cal.App.5th 153, 165.) But this inquiry is significant only to the extent it 

“informs the central question before the court: ‘[W]ould the child benefit from 

continuing the relationship and be harmed, on balance, by losing it?’ 

[Citation.] ” (Id. at p. 165) 

Here, the juvenile court meticulously and insightfully weighed the 

relevant facts in rendering its final determination that the beneficial parentchild exception was not applicable. The court discussed the loving 

relationship between Mother and the children, and commended Mother’s 

recent efforts in maintaining sobriety. But the record fully supports its 

ultimate determination that any harm caused by the termination of the 

children’s relationship with Mother was outweighed by the substantial 

benefits the children received through the permanency of adoption. The 

court noted that the children “need the most permanence that the law can 

give them,” and adoption provides the best chance to achieve it. 

Since the children’s placement with C.G., their great-aunt and 

prospective adopter, the children made demonstrable progress in a stable 

home. When they received consistent services and therapy in their foster 

homes, E.P. was observed to have fewer behavioral issues, M.P. made 

advancements in his verbal development, and A.P. began walking. C.G. 

ensured the children consistently received the necessary services and therapy 

to meet their needs. The children were bonded with C.G. and she

enthusiastically pursued their adoption.

By contrast, evidence of the children’s beneficial relationship with 

Mother was not so strong as to outweigh the benefits of the children’s

placement in this stable adoptive home. Although Mother’s strongest 
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relationship appeared to be with E.P., he did not cry or ask for Mother when 

he was away from her and at home with C.G. The social worker testified that

E.P. was acclimated to not being around his parents. C.G. reported that M.P. 

and A.P. did not remember Mother because they were so young when they 

were taken from her custody. 

Perhaps most pertinent, the benefit of Mother’s continued relationship 

with the children was significantly diminished by her history of drug use. 

Throughout the dependency case and for the majority of the children’s lives, 

Mother struggled to maintain her sobriety and inconsistently participated in 

the treatment programs offered to her. She used drugs while pregnant with 

A.P. despite participating in a treatment program related to her prior

dependency case. In January 2022, within months of the section 366.26 

hearing, Mother gave birth to another child who was born exposed to drugs. 

While Mother recently completed a drug treatment program and 

professed a commitment to her sobriety, her prior history reflected efforts at 

treatment followed by relapse. The record demonstrated that, during periods 

when Mother admitted to using drugs, she inconsistently communicated with 

the Agency and cancelled visits with the children. This “one step forward, 

two steps back” pattern is hardly surprising for persons who struggle with 

addiction. But it is also undeniable that Mother’s historical inability to 

address her drug dependency has had a demonstrably negative effect on her 

relationship with the children. 

Considering the totality of the evidence, we conclude the juvenile court 

did not abuse its discretion when it found the benefits of adoption outweighed 

the detriment of terminating the children’s relationship with Mother. 

Accordingly, the juvenile court did not abuse its discretion when it declined to 

apply the beneficial parent-child exception and terminated parental rights. 
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DISPOSITION

The juvenile court’s orders denying Mother’s section 388 petition and 

terminating Mother’s parental rights are affirmed. 

DATO, J.

WE CONCUR:

HUFFMAN, Acting P. J.

DO, J.