1

Filed 6/6/13 In re Adan R. CA1/5 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 

FIRST APPELLATE DISTRICT 

DIVISION FIVE 

In re Adan R. et al., Persons Coming Under 

the Juvenile Court Law. 

SONOMA COUNTY HUMAN 

SERVICES DEPARTMENT, 

 Plaintiff and Respondent, 

v. 

Danielle D., 

 Defendant and Appellant. 

 A136151 

 (Sonoma County 

 Super. Ct. Nos. 3013-DEP, 3014-DEP) 

 Appellant Danielle D. (Mother) has a long history of child welfare referrals 

involving her son, Adan, and her daughter, Eden. On December 10, 2008, the Sonoma 

County Human Services Department (Department) filed a juvenile dependency petition 

on behalf of both children pursuant to Welfare and Institutions Code section 300.1

 In 

November 2011, the juvenile court terminated Mother’s reunification services, and set a 

section 366.26 hearing on termination of parental rights. Mother filed petitions under 

section 388 seeking to reinstate services and prevent termination of her parental rights 

based on the alleged strength of her parental bond with her children. At Mother’s 

request, a bonding study was conducted. The evaluator concluded that the children no 

longer looked to Mother for security and stability and that they looked forward to 

 1

 All statutory references are to the Welfare and Institutions Code unless otherwise 

indicated. 
2

adoption by their paternal grandmother. The court denied the section 388 petitions and 

terminated Mother’s parental rights. We affirm. 

I. BACKGROUND

 Mother was the subject of multiple child welfare referrals involving Adan (born in 

2002) and Eden (born in 2004), and had a history of substance abuse and domestic 

violence.2

 In 2005, the children’s father, Michael R. (Father) was arrested three times for 

battery on Mother and convicted in one of the incidents. (Pen. Code, § 273.5, subd. (a).) 

In August 2006, Adan exhibited sexualized behavior and disclosed that his seven-yearold uncle had engaged in sexual activity with him, he had observed his parents engage in 

sexual activity, and he had observed a domestic altercation between his parents. In 

October 2007, Mother was arrested for possession of drugs and drug paraphernalia. 

(Health & Saf. Code, §§ 11377, subd. (a), former 11364.) 

 In January 2008, Mother and the children were found living in a home with no 

heat or electricity and the children were hungry and cold. Based on a referral from 

University of California police, a report prepared at the time of the incident stated that 

Mother “is a known methamphetamine user. . . . She has confrontations physical and 

verbal with other meth users while in [People’s Park in Berkeley].” The children were 

taken into protective custody temporarily but were returned home with no dependency 

case initiated. In May 2008, another domestic violence incident occurred between 

Mother and Father, and Father was arrested for domestic violence and a violation of 

probation. (Pen. Code, §§ 273.5, former 1203.2.) Mother had alcohol on her breath at 

the time of the incident. In June 2008, Mother was found with an adult male, Eric W., 

who had broken Mother’s jaw in a prior domestic violence incident and was under an 

order to stay away from her. In September 2008, the family home was found to be filthy 

 2

 As a child, Mother was herself the subject of several child welfare referrals 

between 1993 and 1997. “These reports alleged that [she] was a victim of physical abuse 

by her mother and stepfather, had threatened to kill herself at age 10, was forced to sleep 

outside as a punishment, was sexually abused by the mother’s boyfriend, and had been 

left unattended while her mother was on vacation.” 
3

and without edible food: “The floor of the residence was littered with dirt and food 

which had turned to mold. The refrigerator was smeared in old rotten food and was also 

moldy.” An adult male, D.W., was living with Mother and the children and three lines of 

methamphetamine were laid out on a glass surface in his bedroom. Two glass marijuana 

pipes were located on the nightstand next to a bed where Mother slept with the children. 

Mother was arrested for child endangerment (Pen. Code, § 273a, subd. (a)) based on the 

“extremely dirty” condition of her home and the presence of illegal drugs within the 

reach of the children. D.W. was arrested for drug possession and child endangerment. 

The children were placed with the maternal grandmother but apparently returned shortly 

thereafter. 

A. Removal Leading to Current Dependency Case

 On December 8, 2008, the home was again found to be filthy: “knives within 

reach of the 4 year old; spoiled food in a dirty kitchen; a filthy refrigerator with mold 

present; a lack of clean clothes for the children. . . . The [four-year old] was barefoot and 

had a fairly recent cut on her foot which she said was [caused by] a piece of glass on the 

floor. There were empty beer bottles strewn all throughout the home.” The bottoms of at 

least one child’s feet were black with dirt. D.W. “was present and interfered with the 

deputies’ investigation. The mother was uncooperative with the responding deputies and 

told a number of lies ranging [from] her not being on probation to the vacuum cleaner not 

working when in fact it did. The mother also reported that [D.W.] was in the home 

because he has a court date tomorrow, while the male and the children reported he was a 

frequent visitor to the home.” The children were taken into protective custody and 

Mother was arrested for child endangerment (Pen. Code, § 273a, subd. (a)). D.W. was 

arrested for interfering with the investigation. Another man also found in the home was 

arrested on outstanding warrants. 

B. Jurisdiction and Disposition 

 On December 10, 2008, the Department filed a juvenile dependency petition on 

behalf of Adan and Eden pursuant to section 300. Under section 300, subdivision (b), the 

petition alleged that Mother failed to provide the children with adequate food, clothing, 
4

shelter or medical treatment and was unable to provide regular care for the children due 

to substance abuse. Under section 300, subdivisions (b) and (c), the petition alleged that 

Mother and Father had a history of domestic violence that exposed the children to a 

substantial risk of physical and emotional harm.3

 Mother submitted on detention. 

 At a January 2009 jurisdiction and disposition hearing, Mother submitted on the 

Department’s recommendation. The court sustained the petition as amended, ordered the 

children removed, and granted reunification services to both parents. 

C. Six Month Review 

 Although Mother initially minimized the allegations of the petition, during the 

reunification period she cooperated with a psychological evaluation, obtained psychiatric 

medication, started therapy, and completed two parenting classes. After an April 2009 

arrest and incarceration for public intoxication, she acknowledged a possible substance 

abuse problem and, in June, enrolled in an inpatient drug treatment program. The 

children had “a very close relationship with both of their parents and each other,” 

although they exhibited mild aggression when Mother missed a visit (about once or twice 

a month). Mother was positive and appropriate during the visits. 

 At the June 2009 six-month review hearing, the court maintained the children in 

their foster home and authorized the Department to arrange a home visit before the next 

review hearing. 

D. Twelve-Month Review 

 Mother completed her inpatient alcohol abuse treatment program, participated in 

an aftercare program, tested negative for drugs, and worked with a 12-step sponsor. She 

started therapy and appeared to be taking her psychiatric medication regularly. She also 

started working. Both children wanted to reunite with Mother, with whom they had a 

particular bond. However, if adoption became necessary, the paternal grandmother was 

 3

 The petition also alleged under section 300, subdivision (g) that Mother was 

unable to provide for the children due to her incarceration. Because Mother had been 

released from custody before the jurisdiction hearing, this allegation was stricken before 

the petition was sustained. 
5

willing to adopt and her home in Washington state had been approved for placement. 

After successful overnight visits, the children were placed with Mother on a trial home 

visit in November 2009. 

 At the 12-month review hearing in December 2009, the court granted Mother an 

additional six months of reunification services and scheduled a status review hearing for 

February 2010.4

E. Children’s Return to Mother 

 Mother continued to participate in therapy and attend Alcoholics Anonymous 

(A.A.) meetings. She obtained housing for herself and her children and regularly brought 

the children to school and to their therapy appointments. Adan seemed more relaxed and 

comfortable back in his mother’s care and he acted more settled in therapy. Eden also 

seemed happy to be back with Mother, although her temper tantrums and aggressive 

behavior continued. At a March 2010 status review hearing, the court formally returned 

the children to Mother’s care and granted Mother six months of family maintenance 

services. 

F. Six Month Family Maintenance Review 

 In May 2010, Eric W. came to Mother’s home uninvited and intoxicated, stole 

money from Mother, tried to get her to drink vodka, threatened to kill her, punched her in 

the head, dragged her by the hair, and choked her to the point of her almost losing 

consciousness. Mother was able to get someone to take the children out of the home and 

call the police, and she cooperated with the police investigation and obtained a restraining 

order against Eric W. 

 In July 2010, the social worker made an unannounced visit to Mother’s home in 

response to a child welfare report and found Mother with a man who had a known 

substance abuse problem and a criminal history. Mother did not show signs of 

intoxication, there were no alcohol containers in the home, and Mother tested negative 

 4

 Father’s services were terminated. 
6

for drugs or alcohol. Mother was referred to a domestic violence education and 

psychotherapy group for services. 

 In other respects, the children’s stay in Mother’s care was going well. The 

children were happy and comfortable living with Mother and were doing well 

developmentally. Mother had received in-home parenting education and the social 

worker reported that the home was usually very organized, clean and stocked with food, 

clothing and appropriate toys for the children. She continued to test negative and 

participate in A.A. and other substance abuse services. 

 At a September 2010 hearing, the court extended Mother’s family maintenance 

services for an additional six months. 

G. 12-Month Family Maintenance Review

 In January 2011, Mother gave birth to a baby girl, Elise, whose father was Eric W. 

Eric W. was still incarcerated for his May 2010 assault on Mother and was scheduled to 

be released in June. Mother insisted she was not interested in resuming the relationship, 

but she wanted Eric to have a relationship with his daughter if he changed his lifestyle. 

 Also in January 2011, Mother allowed Father to stay overnight in her apartment, 

and Father verbally and physically assaulted Mother while she was in bed with Eden. 

After a police investigation, no criminal action was taken against Father. Mother agreed 

to limit her contact with Father, participate in a domestic violence group and return to 

individual therapy. Mother had been to therapy only once between March 19, 2010, and 

February 10, 2011. 

 The social worker wrote that Mother “continues to struggle with issues around 

relationships, particularly with men, and setting boundaries. . . . [Her] co-dependency 

continues to compromise her ability to make healthy decisions. . . . [¶] Fortunately, 

[Mother] recognizes her co-dependency and is willing to address it in therapy and in a 

domestic violence psychotherapy group. . . . [¶] The [social worker] is thoroughly 

impressed with [Mother’s] ability to stay clean and sober for eighteen months and her 

continued participation in the Twelve-Step program. . . . [¶] . . . [T]here is undoubtedly a 

strong connection between [Mother and her children]. [Mother] supports any activity 
7

that will promote the social and emotional growth of her children and treats her children 

with the utmost respect.” 

 At a March 2011 status review hearing, the court granted Mother an additional six 

months of family maintenance services. During the hearing, the court questioned Mother 

about how she would handle Eric W.’s possible demands to see his child when he was 

released from custody. Mother felt uncomfortable answering in the presence of Father, 

who was at the hearing. The court expressed concern and urged Mother to have a plan in 

place. 

H. Supplemental Petition and Removal

 In July 2011, Mother allowed Eric W. into her home following his release from 

prison, despite the existence of a restraining order against him. He was reincarcerated for 

violating the restraining order and was scheduled to be released again in six months. 

 The Department received several reports from a neighbor that Mother was not 

supervising the children, was living with a dangerous-looking man, and was not 

maintaining the apartment. When the social worker conducted an unannounced visit, the 

door to Mother’s apartment was wide open, the apartment was empty, and the home was 

filthy with trash and food on the floors. A second unannounced visit a day later found the 

children in the care of Jason J., a parolee with an outstanding arrest warrant who 

appeared to be under the influence of a drug, possibly methamphetamine. Mother 

defended her decision to leave the children with Jason, saying he was great with kids. 

She acknowledged he might have had alcohol and marijuana in his system, but claimed 

she did not know he was on parole. 

 On August 11, 12 and 15, 2011, Mother missed drug tests. On August 15, she was 

found walking with her three children and Jason J., who had alcohol on his breath and 

initially fled when he saw police. Mother also smelled of alcohol and had a backpack 

that contained a partially consumed 40-ounce beer. 

 On August 19, 2011, Mother was pulled over for failing to stop at a stop sign. The 

officer discovered that Mother was driving with a suspended license and without 

insurance, and the inside of her car was filthy, foul-smelling and unsafe. All three 
8

children were in the car. Mother was arrested for felony child endangerment and 

violation of probation, and the children were taken into protective custody. 

 On August 24, 2011, the Department filed a supplemental petition on behalf of 

Adan and Eden pursuant to section 387.5

 The petition alleged Mother’s substance abuse 

relapse, the circumstances of her August 19, 2011 arrest, and the May 2010 domestic 

violence incident involving Eric W. On August 25, 2011, the court ordered the children 

detained in the home of their maternal grandmother. 

 Mother minimized the allegations of the new petition. She said she failed to test 

twice in August 2011 because her car broke down and the third incident was a date 

mixup; she denied being intoxicated on August 15; and she said the charges from the 

August 19 incident were absurd and had been dropped. 

 The Department recommended removal and termination of services for Mother.6 

The Department wrote that it had not recommended removal earlier in 2011 because the 

children appeared to be very resilient and were bonded with Mother, who had many 

strengths as a parent. “But love and ingenuity are not enough to protect children. 

[Mother’s] long history of domestic violence and addiction has undoubtedly scarred her 

children and the Department can no longer stand by and allow it to happen.” When asked 

about his recent removal, Adan told the social worker, “It hasn’t been that long of a time 

since we’ve been away from home so it’s not that bad,” although the social worker said 

he had a “heavy heart.” Because the children needed to be removed, services also had to 

be terminated because Mother had exhausted the maximum amount of reunification 

services that could be provided. 

 At a November 2011 hearing, the court was informed that Mother and the 

Department reached a settlement regarding the supplemental petition: Mother would not 

contest termination of services, weekly visitation would continue. Mother requested, and 

the Department indicated it would not oppose, a bonding study to determine whether the 

 5

 A petition was also filed on behalf of Elise. 

6

 The report also recommended a bypass of services in Elise’s case. 
9

bond between Mother and her children outweighed the benefits to the children of 

permanency through adoption. Minors’ counsel objected to the bonding study. Pursuant 

to local rule of court, the court required that a written motion for a bonding study be filed. 

The court then removed the children, terminated Mother’s services, and set a 

section 366.26 hearing on termination of parental rights for March 29, 2012. Mother 

filed a writ petition challenging the section 366.26 setting, which this court denied on the 

merits. (D.D. v. Superior Court (A134645 May 21, 2012) [nonpub. order].) 

I. Motion for Bonding Study and Section 366.26 Report 

 In December 2011, Mother filed a written motion for a bonding study. A hearing 

on the motion was continued several times and was ultimately scheduled to be heard at 

the same time as the section 366.26 hearing. Explaining the postponements, the 

Department told the court it was pursuing approval of the paternal grandmother’s home 

for placement and was considering a guardianship arrangement that would render the 

motion moot. 

 In its March 2012 section 366.26 report, however, the Department recommended 

termination of parental rights and adoption as the permanent plan. All three children 

were then living together in a foster home and Adan “had voiced concerns about being 

separated from Elise.” The foster parents were willing to adopt all three children, but the 

paternal grandmother was willing to adopt only Adan and Eden. Nevertheless, the 

Department determined that the best placement of Adan and Eden was with the paternal 

grandmother. After being told they could not be returned to Mother’s care, Eden (then 

seven years old) “was very clear in her desire to be placed with her paternal grandmother 

. . . , even if it required being separated from her siblings. . . . [¶] Adan[, then 10 years 

old,] also expressed his first choice . . . to be placed with the paternal grandmother[,] . . . 

[although he] expressed concern and sadness about being separated from Elise . . . .” The 

children’s therapist confirmed that the children felt safe and secure with the paternal 

grandmother, who had provided them with their most consistent family relationship. The 

children had a “positive and trusting relationship” and “strong emotional ties” to her. 

The adoption specialist concluded that placing the children with the paternal grandmother 
10

would result in minimal disruption to their lives, and the benefits of maintaining the 

mother-child bond or the three-sibling group did not outweigh the benefit of permanence 

through adoption by the paternal grandmother. The paternal grandmother had “expressed 

a strong desire to help the children maintain a connection with the birth parents and their 

half-sibling, provided these connections are in the best interests of the children.” 

 At the March 29, 2012 hearing, the Department opposed Mother’s request for a 

bonding study. At a May hearing, following a further settlement conference, Mother 

argued the court should either grant the bonding study or allow her to withdraw her 

submission on the supplemental petition. The court granted the request for a bonding 

study, relying in part on the record of the November 2011 hearing. 

J. Bonding Study

 In July 2012, Dr. Denise L. Wagner issued a bonding study, which was based on 

the dependency case file, letters of support submitted by Mother, observations of three 

consecutive weekly visits between Mother and the children, and interviews with Mother, 

the children, the foster parent and the paternal grandmother. 

 Dr. Wagner wrote that the children repeatedly demonstrated anger and aggression 

toward Mother during the visits: Eden shouted to Mother, “ ‘You are going to kill us’ ”; 

she punched Mother and pulled hard on Mother’s hair; she said she was going to put nails 

in a peach she gave to Mother to eat; and she deliberately passed gas in Mother’s face. 

Adan wrote “L” and “S” for “loser” and “stupid” on Mother’s forehead and sang a song 

with the lyric, “Kill your mother,” acknowledging it was mean to her. The children did 

not have trouble separating from Mother at the end of visits. Mother mostly ignored the 

children’s hostility during the visits and attempted to redirect their attention, often by 

talking about herself. 

 Dr. Wagner wrote: “Clearly, this is a complicated family with complex 

interpersonal dynamics. [Mother] makes good efforts to parent her children in a positive 

manner. . . . She nurtures [them] by bringing them healthy snacks including foods she has 

known them to enjoy. On the other hand, [she] has difficulty consistently being attuned 

to the children’s emotional state. Her own emotional state appears to dominate their 
11

interactions. She enters visits in a frenzy, continually late, and exuberantly describing 

recent developments in her own life, seemingly without consideration of the relevance of 

her commentary to her children or the [e]ffect it may have on them. . . . [¶] The children 

each in their own way are very angry with their mother. . . . [Eden] is continually 

oppositional and challenging, continuing to reject her mother’s bids for closeness . . . 

much of the time, yet at other times initiating and accepting affection from her mother. 

. . . She is verbally aggressive with her brother and sabotages any possibility of him 

engaging with their mother. [¶] [Adan] . . . has to fight for most any sustained attention 

from [Mother]. . . . He is mostly positioned off to the side, in the background much of the 

time during visits. He deliberately says mean and cruel things to [Mother] without any 

visible remorse. He shows no ambivalence when he answers [Mother’s] inquiry about 

whether it is true that he and his sister are going to move to his grandmother’s by flatly 

answering ‘Yep.’ ” 

 The foster mother reported that neither Adan nor Eden ever said he or she missed 

Mother. However, they were “ ‘over the moon’ when their grandmother came to visit 

recently and had been anxious about whether they were going to live with her or not. 

They both talk[ed] with her by phone twice weekly and [were] typically engaged in 

conversation for 30–45 minutes each. [¶] In regard to their relationships with their 

younger half-sister, . . . ‘they love her but they don’t play with her a lot.’ ” The foster 

mother was committed to maintaining the sibling relationship through Skype and phone 

conversations and visits. 

 The paternal grandmother reported that when she lived in California (before her 

move to Washington), Adan, Eden and their parents lived with her for one year and the 

children lived with her for about 11 months in 2007 and for six weeks in the summer of 

2008. She had seen them about three times a year since then and she had spoken to them 

once a week (and more recently twice a week) since they had been in foster care. If she 

adopted the children, she was committed to allowing continuing contact with Mother 

subject to appropriate structure. 
12

 When Dr. Wagner asked Adan how he felt about living with his paternal 

grandmother, he said he would “ ‘like it a lot’ ” and he spontaneously showed 

Dr. Wagner books of photographs taken during his visits with the grandmother. He said, 

“ ‘I know I would not see my mom; maybe once a year. It would be rough at first, but I 

could deal with it.’ ” Eden said she understood she and Adan were not going to live with 

Mother because “ ‘[s]he and my dad were always fighting. My mom can’t take very 

good care of us.’ ” She said she felt good about living with her paternal grandmother: 

“ ‘I still want to move to Grandma’s even if I don’t see mom that much,’ ” and even if 

she only visited with her younger sister occasionally. 

 Dr. Wagner concluded the children “have learned that they cannot rely on 

[Mother] for day to day protection, or for a stable, predictable life.” The relationship 

between Mother and Adan was “one of a mother who loves her child and a son who has 

experienced too much pain and disappointment to be able to rely on his parent.” The 

relationship between Mother and Eden “most resembles that of a child care provider who 

is attempting to manage a young child.” 

K. Section 388 Petitions

 On July 9, 2012, Mother filed two nearly identical section 388 petitions (one for 

each child) seeking cancellation of the section 366.26 hearing, return of the children to 

her care (or, in the alternative, increased visitation), and additional services. As changed 

circumstances, Mother cited her return to therapy in recent weeks, her cooperation with 

the prosecution of Eric W. in 2012, her avoidance of Eric W. and Jason J.,7

 her 

participation in a domestic violence program, her employment, her plans to complete a 

paralegal program, her sobriety and participation in A.A., and her plans for stable 

housing that would accommodate her and her children. To demonstrate why changes to 

the court’s orders would be in the children’s best interest, she cited the strong bond 

 7

 Regarding Eric W., Mother wrote, “I recently encountered him in Sebastopol and 

had a brief conversation to see if he was staying in town or not, so that I could determine 

whether to find another place to stay. He was taken into custody for violating the 

Criminal Protective Order.” 
13

between her and the children, her regular participation in visitation, and the benefit of 

keeping all of the siblings together. 

 In opposition to the petitions, the Department submitted two police reports. They 

stated that on February 9, 2012, Mother reported a January 30–31, 2012 domestic 

violence incident that had been perpetrated by Eric W., who had been released from 

custody in December 2011. Eric W. approached Mother on January 30, 2012, and asked 

to talk. Because she was afraid he would become violent if she refused to talk to him, she 

agreed and they walked away from Mother’s companions. As they approached a trailer, 

Eric W. grabbed Mother, held a Phillips screwdriver to her throat, dragged her under a 

canopy where the others could not see them, and urged her to go with him to a tent where 

he was staying. She stalled and apparently passed out. “Her next memory was waking 

up in [Eric W.’s] tent.” When she tried to leave the tent, he became mad and hit her hard 

in the stomach and chest, dragged her down by the hair, threatened to kill her, and put his 

hands around her throat. She begged him to let her go and he eventually released her, but 

also threatened that if he saw her with another man he would slit their throats. Eric W. 

was charged with kidnapping, false imprisonment, assault with a deadly weapon, 

domestic violence, and making criminal threats. On June 5, 2012, apparently the very 

day Eric W. was released from custody following his February 2012 arrest, an officer saw 

Mother walking with him at almost 11:00 p.m. The officer arrested Eric W. for violating 

a restraining order protecting Mother. 

 At a July 13, 2012 section 366.26 hearing, the court indicated that it tentatively 

planned to hear evidence on the section 388 petitions and on the section 366.26 issues 

jointly, but then gave counsel an opportunity to be heard on the issue. The Department 

asked the court to deny the section 388 petitions without a hearing. It argued the 

allegations of the petitions were vague or conclusory and thus failed to establish a prima 

facie case, particularly in light of the police reports the Department had submitted in 

opposition: “[E]ven after the Court pointed out in January [during a hearing in Elise’s 

case] that [Mother’s] continued codependence in their relationships was one of the 

reasons the Court had to bypass services to her[,] [s]he still is going from a group of 
14

people, going to go off by herself with him to deescalate the situation. That’s classic 

codependence. [¶] He was then incarcerated. The day he gets out of jail, we have this 

second police report from June 5th, 2012, where the police officer saw the two subjects, 

[Eric W.] and [Mother], walking eastbound together. [¶] . . . [¶] So, . . . as far as change 

of circumstances, there is nothing that supports that. [¶] As to . . . the best interests of the 

children, the Court’s got the [section 366.26] report, as well as [having received into 

evidence] the bonding and attachment study of Dr. Wagner.” Minors’ counsel joined in 

the Department’s arguments. Mother argued in rebuttal that the petitions should be 

liberally construed for purposes of determining whether to schedule a hearing and that 

her petitions met the prima facie standard. 

 After confirming that Mother had received and had an opportunity to review the 

police reports submitted by the Department, the court denied a hearing on the section 388 

petitions. “[T]here has not been a material change of circumstances. The Court is most 

persuaded by the very recency of the 11:00 p.m. meeting with [Eric W.] that . . . is clear 

evidence that there’s no change of circumstances here. This is the same behavior, the 

same pattern, that has been existent throughout this case, that the Court, frankly, cannot 

accept as happenstance . . . [as it] occurred on the very day he was released from jail 

[which] is a repeat of a circumstance that occurred when there was a release from San 

Quentin, within one day . . . . [¶] . . . [¶] With regard to the best interests, the Court does 

take into account that is has received a very recent bonding study, which identifies the 

best interests of the minor[s] and . . . is viewed as a scientific, independent inquiry . . . . 

[¶] . . . [It] indicates . . . the requested change . . . would not be in the best interests of the 

minor[s].” 

L. Section 366.26 Hearing

 The bonding study, which had been previously received into evidence subject to 

cross-examination of Dr. Wagner, was admitted at the section 366.26 hearing. 

Dr. Wagner, whom the court qualified as an expert witness, testified that the children “do 

not see their mother as someone who can provide security and safety for them.” She 

agreed that the children had “moved on” and were looking forward to moving in with 
15

their paternal grandmother: “[T]hey’ve accepted the circumstances as they are now, and 

. . . are building a good attachment, do have a good established relationship with their 

grandmother.” On Adan’s separation from Elise, she testified that “he was sad about her 

not coming with them, but it didn’t dissuade his desire to go and live with his 

grandmother.” Eden’s attitude was similar. In sum, she opined, “I believe that severing 

the bond would not be a detriment that would outweigh a plan of adoption and the 

permanence provided there.” 

 Mother argued the beneficial parental relationship exception precluded termination 

of parental rights. She argued the children’s anger described in the bonding study “has 

come up in the last year since their removal. And I think it’s as likely that it’s an anger 

that’s at the situation, rather than at mother.” She noted that earlier in the dependency 

case, the social worker and service providers reported that Mother was a good parent and 

the children were bonded with her. Mother also argued that the beneficial sibling 

relationship exception applied. The Department argued the children’s right to a stable, 

permanent home outweighed their interest in preserving their relationship with Mother or 

Elise, particularly in light of the history of three removals in four years. Minors’ counsel 

concurred. 

 The court ruled that the exceptions did not apply and terminated Mother’s and 

Father’s parental rights. 

II. DISCUSSION

A. Section 388 Petitions 

 Mother argues the trial court erred in denying her a full evidentiary hearing on her 

section 388 petitions. We affirm. 

 A parent “may, upon grounds of change of circumstance or new evidence, petition 

the court . . . to change, modify, or set aside any order of court previously made . . . . [¶] 

. . . [¶] . . . If it appears that the best interests of the child . . . may be promoted by the 

proposed change of order, . . . the court shall order that a hearing be held . . . .” (§ 388, 

subds. (a)(1), (d).) “The court may deny the petition ex parte if: [¶] . . . the petition . . . 

fails to state a change of circumstance or new evidence that may require a change of 
16

order . . . or, that the requested modification would promote the best interest of the child.” 

(Cal. Rules of Court, rule 5.570(d)(1) [“Denial of hearing”].)8

 “A petition for 

modification must be liberally construed in favor of its sufficiency.” (Rule 5.570(a).) If 

a hearing is held, the party that brings the petition bears the burden of persuasion. 

(Rule 5.570(h)(1).) The juvenile court’s ruling on the petition is reviewed for abuse of 

discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) 

 A section 388 petition seeking reunification services after a section 366.26 hearing 

has been set plays a special role in the dependency scheme. “Once reunification services 

are terminated, the focus shifts [from family reunification] to the needs of the child for 

permanency and stability. . . . The burden thereafter is on the parent to prove changed 

circumstances pursuant to section 388 to revive the reunification issue. Section 388 

provides [an] ‘escape mechanism’ . . . to allow the court to consider new information” 

and “to accommodate the possibility that circumstances may change after the 

reunification period that may justify a change in a prior reunification order.” (In re 

Marilyn H. (1993) 5 Cal.4th 295, 309.) The section 388 petition provides the parent a 

means of rebutting the presumption after termination of services that a permanent plan 

other than reunification is in the child’s best interest. (Id. at p. 310.) 

 The trial court did not abuse its discretion in denying a full evidentiary hearing on 

the petitions. The court could have denied the petition ex parte. On the issue of changed 

circumstances, the petitions alleged at most changing circumstances, i.e., a renewal of 

Mother’s efforts to address the problems that led to the children’s dependency: her return 

to therapy, her alleged avoidance of men who were substance abusers and perpetrators of 

domestic violence (and cooperation in Eric W.’s prosecution), her enrollment in a 

domestic violence counseling program, and her efforts to obtain gainful employment and 

stable housing. However, “[a] petition which alleges merely changing circumstances and 

would mean delaying the selection of a permanent home for a child to see if a parent, 

who has repeatedly failed to reunify with the child, might be able to reunify at some 

 8

 All further rule references are to the California Rules of Court. 
17

future point, does not promote stability for the child or the child’s best interests. 

[Citation.]” (In re Casey D. (1999) 70 Cal.App.4th 38, 47, italics added.) The changed 

circumstances alleged in Mother’s petitions on their face were too little and too late in the 

three-and-one-half-year dependency case to justify further delay in adopting a permanent 

plan for the children. (Cf. In re Kimberly F. (1997) 56 Cal.App.4th 519, 526–527 

[changed circumstances existed where “home was no longer in an unsafe and unsanitary 

condition,” where condition of home had led to the dependency].) 

 Mother argues the court applied an incorrect legal standard when it required a 

“material change of circumstances” even though the statute only requires a “change of 

circumstances.” We disagree. Common sense dictates that the “change of circumstance” 

standard must include a materiality element as measured by the purpose of the statute; 

otherwise, the mere passage of time would suffice to reopen prior orders upon an appeal 

to the children’s best interests. Courts recognize this implicit materiality standard by 

referring to “a genuine change of circumstance” (In re Anthony W. (2001) 87 Cal.App.4th 

246, 250) and a change of circumstances “which may make the modification of a prior 

order appropriate” (In re Daijah T. (2000) 83 Cal.App.4th 666, 674) when discussing the 

section 388 standard. 

 Finally, Mother argues her due process rights were violated because “the court 

neither summarily denied mother’s petition[s] nor did it grant mother a hearing. Instead, 

the court heard argument from the parties regarding mother’s petition[s] before denying 

the petition[s] without allowing mother a full evidentiary hearing.” We agree there was 

some ambiguity in the court’s actions. The court ruled that it would “deny the hearing” 

on the petitions, presumably because the allegations of the petition failed to make a prima 

facie showing. However, in explaining its reasons, the court cited evidence: the police 

reports and the bonding study. The court even took pains to verify that Mother had 

received the opposition evidence and had had an opportunity to review it, apparently to 

allay any concerns that her due process rights might be violated if the court relied on the 

evidence. Nevertheless, even if we assume that the court in fact held a hearing on the 

petitions and denied them on their merits, Mother has failed to show reversible error. 
18

The court was not required to conduct the hearing with live testimony, but was free to 

rely on the information contained in the petition, documentary evidence, and argument of 

counsel. (Rule 5.570(h)(2); In re E.S. (2011) 196 Cal.App.4th 1329, 1340; In re C.J.W.

(2007) 157 Cal.App.4th 1075, 1080–1081.) Nothing in the record suggests that the court 

denied the petitions because Mother did not offer evidence in support of the specific 

factual allegations in her petitions; rather, the court inferably concluded that those facts, 

if assumed to be true, were insufficient to justify a change in the court’s orders. 

Moreover, nothing in the record suggests that Mother was denied an opportunity during 

the hearing to challenge the police report or bonding study evidence or to offer additional 

evidence (or at least make an offer of proof) in support of her petitions. Finally, she 

makes no showing on appeal that, had she been given an opportunity to present additional 

evidence or further argument on the petitions, there was a reasonable probability of a 

different result. 

 Mother has not established reversible error in the court’s disposition of her 

section 388 petitions. 

B. Termination of Parental Rights 

 Mother also challenges the court’s order terminating her parental rights to Adan 

and Eden, arguing the court should have found that the beneficial parent and sibling 

relationship exceptions applied. We affirm. 

 At a section 366.26 hearing, the juvenile must determine by clear and convincing 

evidence whether it is likely the dependent minor will be adopted. (§ 366.26, 

subd. (c)(1).) If the court finds a likelihood of adoption, the court must terminate parental 

rights and order the child placed for adoption unless, as applicable here, it finds a 

“compelling reason” that termination would be detrimental under one of the exceptions 

listed in section 366.26 subdivision (c)(1)(B). A party arguing that one of those 

exceptions applies has the burden of producing evidence that establishes the exception. 

(In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343 [discussing former § 366.26, 

subd. (c)(1), predecessor of § 366.26, subd. (c)(1)(B)].) We review the trial court’s 

decision either for substantial evidence or for abuse of discretion; in this context, there is 
19

little difference between these standards of review. (In re Bailey J. (2010) 

189 Cal.App.4th 1308, 1314–1315; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351–

1352.) 

 1. Beneficial Parental Relationship Exception 

 Under the beneficial parental relationship exception, the court must find a 

“compelling reason” that termination of parental rights would be detrimental 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).) “The 

existence of interaction between the natural parent and child will always confer some 

incidental benefit to the child.” (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1342.) 

The beneficial parental relationship exception requires more, “that the parent-child 

relationship promote the well-being of the child to such a degree that it outweighs the 

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

[Citation.]” (Ibid.) 

 We have no difficulty concluding that the trial court’s ruling is supported by the 

record and was not an abuse of discretion. The bonding study amply demonstrated that 

as of the relevant time—at the permanency planning stage of the dependency case 

following approximately three years of services and repeated removals of the children 

from Mother’s care due to recurring domestic violence and incidents of child neglect—

the children no longer looked to her for parental security and support. On the contrary, 

the children looked forward to placement with a loving relative who could provide them 

with stability and security for the rest of their diminishing childhoods. This bonding 

study, on which Mother had pinned her hopes of maintaining her parental rights, instead 

turned out to be devastating to Mother’s case. The children showed considerable hostility 

toward Mother during the observed visits and showed true enthusiasm about placement 

with their paternal grandmother. While Mother accurately cites evidence that the 

children had maintained a positive relationship with her throughout much of the 

dependency case, the question before the court was whether at the time of the 

section 366.26 hearing the detriment of terminating the children’s legal relationship with 
20

Mother was so compelling that it outweighed the legislative preference for providing 

children with the permanence and stability of adoption. The bonding study, rather than 

the reports of Mother’s visits with the children earlier in the case, was the relevant 

evidence on that point and unambiguously weighed in favor of adoption. 

 The trial court did not err in ruling that the beneficial parental relationship 

exception to termination of parental rights did not apply. 

 2. Beneficial Sibling Relationship Exception 

 To apply the sibling relationship exception, the court must find a compelling 

reason for determining termination of parental rights would be detrimental to the minor 

because it would cause “substantial interference with a child’s sibling relationship . . . as 

compared to the benefit of legal permanence through adoption.” (§ 366.26, 

subd. (c)(1)(B)(v).)9

 “To show a substantial interference with a sibling relationship the 

parent must show the existence of a significant sibling relationship, the severance of 

which would be detrimental to the child.” (In re L. Y. L., supra, 101 Cal.App.4th at 

p. 952, fn. omitted.) “In enacting this exception, the legislature was concerned with 

preserving long-standing relationships between siblings which serve as anchors for 

dependent children whose lives are in turmoil.” (In re Erik P. (2002) 104 Cal.App.4th 

395, 404.) 

 Again, the trial court clearly did not err in finding that the exception did not apply. 

The bonding study showed Adan in particular felt an attachment to his sister Elise, but his 

desire to live permanently with his paternal grandmother was more powerful. The 

children had a long-term and apparently secure family relationship with the paternal 

grandmother and with each other. Their relationship with Elise was shorter term and, as 

an infant, Elise’s ability to build relationship with them was necessarily limited. While 

the children felt natural sadness at moving away from Elise—just as they naturally felt 

sadness at losing contact with their mother—the court reasonably concluded that the 

 9

 A parent has standing to raise the appellate issue of whether the sibling 

relationship exception should have been applied by the juvenile court. (In re L. Y. L.

(2002) 101 Cal.App.4th 942, 951.) 
21

benefit of maintaining the relationship with Elise was not sufficiently compelling to 

override the legislative preference for adoption. 

 The court did not err in refusing to apply the beneficial sibling relationship 

exception to termination of parental rights. 

III. DISPOSITION

 The July 13, 2012 order terminating parental rights is affirmed. 

 _________________________ 

 Bruiniers, J. 

We concur: 

_________________________ 

Simons, Acting P. J. 

_________________________ 

Needham, J.