Filed 1/28/14 In re L.V. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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 This opinion has not been certified for publication 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. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re L.V., a Person Coming Under the 

Juvenile Court Law.

SAN DIEGO COUNTY HEALTH AND

HUMAN SERVICES AGENCY,

Plaintiff and Appellant,

v.

A.H.,

Defendant and Respondent.

 D064325

 (Super. Ct. No. SJ012489)

APPEAL from a judgment of the Superior Court of San Diego County, Garry G. 

Haehnle, Judge. Affirmed.

Neale B. Gold, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County 

Counsel, and Emily K. Harlan, Deputy County Counsel, for Plaintiff and Respondent.
2

Joanne Willis Newton, under appointment by the Court of Appeal, for Minor.

A.H. is the mother of L.V., who turned three years old in November 2013. The 

juvenile court entered judgment after it terminated parental rights; found that the 

exception to termination of parental rights under Welfare and Institutions Code section 

366.26, subdivision (c)(1)(B)(i)1 (the "continuing benefit exception"), did not apply; and 

ordered adoption as L.V.'s permanent plan.

The mother appeals, first arguing that the court erred when it summarily denied 

her section 388 petition when it found she had not met her burden to make a prima facie 

showing of changed circumstances. We conclude the court did not err because the 

mother did not present evidence of changed circumstances. She next argues that 

substantial evidence does not support the court's finding that the continuing benefit 

exception did not apply. We conclude that substantial evidence supports the court's 

findings and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A. L.V.'s First Removal

On January 7, 2011, the San Diego County Health and Human Services Agency 

(the Agency) took one-month-old L.V. into custody and filed a petition under section 

300, subdivisions (b) and (g). The subdivision (b) count alleged the mother failed to 

protect L.V. when she left her with the maternal grandmother who had known substance 

abuse problems and who subsequently left L.V. in the care of two teenage relatives 

 

1 All further statutory references are to the Welfare and Institutions Code.
3

overnight. The subdivision (g) count alleged the child had been left with no provision for 

support because the mother was incarcerated and unable to arrange for her care, and the 

whereabouts of the alleged father were unknown.2

The mother appeared at the detention hearing on January 11, 2011, while in 

custody. She had been arrested in December 2010 for being under the influence of a 

controlled substance, failure to appear, and violation of a restraining order. At the time of 

the detention hearing, the mother had been sentenced for the restraining order violation 

and was not scheduled to be released until the following month on February 22, 2011. 

During the course of the Agency's investigation, the mother reported an eight-year history 

of marijuana and methamphetamine use, beginning when she was 14 years old. 

On February 1, 2011, the court held the jurisdiction and disposition hearing. The 

court found L.V. was described by section 300, subdivision (b) by clear and convincing 

evidence, that removal was necessary, and ordered L.V. placed in a licensed foster home. 

The court ordered the Agency to provide reunification services to the mother and ordered

the mother to comply. 

B. The Reunification Period

The mother's court-ordered reunification plan included individual therapy, 

parenting education, a substance abuse treatment program, a 12-step program involving 

twice-weekly Narcotics Anonymous (NA) meetings, and random drug testing. At a 

 

2 The father is not a part of this appeal.
4

special hearing on April 5, 2011, the court also ordered the mother into drug court and 

authorized a psychological evaluation if recommended by her therapist. 

By the time of the six-month review hearing on July 26, 2011, L.V. had been 

diagnosed with several ongoing medical conditions and needs. L.V. was prescribed a 

specific type of formula for acid reflux, was under doctor's supervision for a hemangioma 

and a hernia, and was attending physical therapy sessions biweekly for hip dysplasia. 

She also needed surgery for a blocked tear duct. 

The mother's supervised visits with L.V. went well in many respects except 

feeding. On May 3, 2011, the mother tried to give L.V. a different type of formula than 

what was prescribed. A social worker asked the mother not to feed the child a different 

kind of formula during visits, and the mother agreed. The mother subsequently fed L.V.

the wrong kind of formula during a visit on June 22, 2011. 

Meanwhile, the mother had been attending weekly individual therapy since 

February 2011, but the therapist reported the mother would not discuss her substance 

abuse issues. At the therapist's recommendation, the mother participated in a 

psychological evaluation in May 2011. The evaluator reported difficulty diagnosing the 

mother because she was "inclined either to deny that she ha[d] any problems in her life or 

to simply avoid discussion of those problems." The psychologist also opined that the 

mother's lack of distress suggested her work in recovery and reunification services might 

turn out to be superficial, and she may be "going through the motions rather than dealing 

with real issues."
5

The mother's other service providers reported she was doing well in parenting 

class and substance abuse programs. The mother had a part-time job and had started 

school to obtain a degree in business. 

In November 2011, the mother graduated from drug treatment. She was also

making better progress in therapy than in the first six months of services. The mother's 

therapist noted that her prevention plan was that she would not use drugs because that 

would mean that she would lose L.V. 

By the time of the 12-month permanency review hearing on January 31, 2012, 

L.V. had moved from foster care to the home of her paternal aunt Sylvia S. Her medical 

and developmental needs were decreasing and she had graduated from physical therapy 

services. 

The mother remained employed at the time of the 12-month permanency review 

hearing, but she had stopped attending school due to the amount of her student loan. She 

was living with the maternal grandmother who was involved in the original protective 

incident. The mother understood that she would need to obtain different housing in order 

to reunify with L.V. The court adopted the Agency's recommendation to continue 

reunification services for the mother to the 18-month permanency review hearing. 

At the time of the 18-month permanency review hearing on July 3, 2012, L.V.'s 

developmental delays had improved, and she no longer had appointments scheduled for 

reassessment. The mother had successfully completed therapy. The therapist reported 

the mother was very compliant and was able to address the protective issues by remaining 

clean. The mother had continued attending her weekly NA meetings and had been 
6

randomly drug tested twice with negative results. She had obtained her own apartment, 

continued to be employed at a clothing store, and was seeking a second job. L.V. was 

ordered placed with her mother on August 7, 2012. 

C. L.V.'s Second Removal

A little over two months later, in October 2012, L.V. was again removed from the 

mother's custody. The Agency discovered the mother had moved out of the approved 

relative home of her maternal aunt in violation of her safety plan. Without notifying the 

Agency, she had moved back into the home of the maternal grandmother where L.V. had 

originally been removed. The worker met with the mother on October 22, 2012, and 

asked her to drug test. The mother tested positive for amphetamines and 

methamphetamine. 

The mother's sister reported that she had observed the mother at the maternal 

grandmother's home on October 19, 2012, and believed she was under the influence of 

drugs on that day. On October 24, 2012, the maternal grandmother's roommate reported 

he was a recovering addict himself and believed the mother had been using drugs for over 

a month while staying in their home. Both the sister and the roommate reported seeing 

unknown men at the maternal grandmother's home while the mother was there. 

When confronted with the positive drug test, the mother initially denied using 

drugs. She later admitted to using methamphetamine with a friend about five times on 

the morning of October 22, 2012. She stated she and her friend took turns smoking 

methamphetamine and caring for L.V. The mother subsequently failed to appear for two 

drug tests on October 25 and 26, 2012. 
7

The mother did not schedule a visit with L.V. until 10 days after her October 25, 

2012, removal. At one November 2012 visit, she failed to change the child's diaper and 

told the caregiver she was trying to teach L.V. to change her own diaper. At a subsequent 

November 2012 visit, she arrived nearly two hours late with a black eye, accompanied by 

a man who could not keep his eyes open and kept falling asleep. 

At the contested adjudication and disposition hearing on the Agency's section 387 

petition on January 16, 2013, the mother provided a letter from a lead treatment counselor 

indicating the mother had been a resident at KIVA inpatient drug and alcohol treatment 

program since December 24, 2012, and had tested negative for drugs on December 26, 

2012. The court found that the mother's recent and belated entry into drug treatment was 

not sufficient to overcome the risk to L.V. if she were returned to the mother's care. The 

court made a true finding on the section 387 petition and removed L.V. from the mother's 

care by clear and convincing evidence. The court also terminated the mother's services 

and set a section 366.26 hearing. L.V. was placed back in the home of the relative 

caregivers who had cared for her prior to the mother's short period of reunification 

D. The Mother's Section 388 Petition

The mother filed her section 388 petition on June 19, 2013, a little over a month 

after the child's initial section 366.26 hearing on May 15, 2013. Her petition asked the 

court to place L.V. with her with family maintenance services or, in the alternative, to 

order a permanent plan of another planned permanent living arrangement and 

unsupervised visitation. The mother attached a third version of a relapse prevention plan 

to her petition. She also attached a letter to the judge expressing her embarrassment 
8

about her relapse, her belief that she is an "awesome mother," and her determination to 

get her daughter back. 

On June 25, 2013, the court heard prima facie arguments on the mother's section 

388 petition at the pretrial settlement conference for the section 366.26 hearing. The 

court allowed her counsel to attach a letter from St. Vincent de Paul Village (St. Vincent),

indicating the mother had been receiving room and board there for approximately one 

week. The court also permitted counsel to attach a completion letter from the KIVA

residential drug and alcohol treatment program indicating the mother tested negative for 

drugs during her four-month stay and completed the program on April 22, 2013. The 

court also heard unsworn statements from mother's counsel regarding the mother's 

progress in aftercare and the services provided by St. Vincent. The mother's counsel 

indicated the mother had two unexcused absences and her participation in aftercare was 

not satisfactory due to nonpayment of fees. Mother's counsel also asserted the mother 

was participating in the sessions she did attend and had negative drug tests. 

The court found the mother had not made a prima facie showing and summarily 

denied her section 388 petition. Specifically, the court found the mother's circumstances 

were changing, but had not changed. The court noted the mother had previously 

completed drug treatment and aftercare, knew her tools and triggers, and yet did not reach 

out to any member of her support group prior to her relapse. The court also noted the 

mother had a shorter period of sobriety and less time in stable housing at the time of her 

section 388 petition than she had the first time L.V. was returned to her. The court also 

found no prima facie showing of best interests to return L.V. to her mother. 
9

E. The Section 366.26 Trial

The contested section 366.26 hearing was held on July 11, 2013. The court 

received into evidence several Agency reports written by social workers Peter Ellew and 

Barbara Wojtach. The court also heard testimony from senior protective services worker 

Wojtach. Wojtach testified she had observed three visits by the time of the hearing. She 

observed an enjoyable relationship between the mother and LV. However, she did not 

observe L.V. seek out comfort and care from her mother. She also noted that L.V.

interacted in the same manner with other relatives during a visit as she did with the 

mother. Moreover, L.V. had been excited to see Wojtach and hugged the social worker 

on only the second time the two saw each other. The mother's counsel had no questions

for Wojtach. 

Social worker Ellew observed approximately 14 visits during his assignment to the 

case. He assessed the bond between mother and daughter to be akin to a "fun relative." 

He also observed L.V.'s reaction to seeing her mother as similar to her reaction to seeing 

her aunt. For example, Ellew observed L.V. react excitedly to the presence of her aunt 

Alexandra V. and cry out "come here" when Alexandra tried to leave a visit. Ellew 

opined L.V. reacted this way because Alexandra was kind, playful, and gave her lots of 

attention. Moreover, L.V. was excited to see Ellew and showed affection to other 

nonrelatives, such as her day care provider. 

Social worker Ellew believed adoption was in L.V.'s best interest based on her

need for stability and consistency after many changes and disruptions in her life. He 

noted L.V. had only lived with the mother for a total of six months out of her almost 30 
10

months of life and had been subjected to the mother's drug use, inconsistent supervision, 

and frequent moves. By May 2013, L.V. had lived with her current relative caregivers 

for 14 months. The parties had no questions for Ellew at the hearing. 

The mother argued the continuing benefit exception applied to preclude adoption. 

The mother's evidence included visitation records from the Agency and the visitation 

center. The court also agreed to receive the visitation logs and the letter of completion of 

drug treatment which had been previously attached to the mother's section 388 motion. 

Finally, the mother offered stipulated testimony from the caregiver, Sylvia, that she 

would prefer to adopt L.V., but was also willing to become her legal guardian if the court 

so ordered. 

At the close of evidence, the court found by clear and convincing evidence that it 

was likely L.V. would be adopted and that none of the exceptions set forth in section 

366.26, subdivision (c)(1)(B) applied. The court terminated parental rights, selected 

adoption as L.V.'s permanent plan, and referred the matter to the Agency for adoptive 

placement. 

DISCUSSION

I. The Mother's Section 388 Petition

The trial court denied the mother's section 388 petition because it found her 

circumstances were changing, but had not changed. The mother contends the court 

abused its discretion because she made the required prima facie showing. The Agency 

contends the court's findings did not demonstrate an arbitrary, capricious, or patently 
11

absurd exercise of its discretion. We agree with the Agency and hold the court did not 

abuse its discretion.

A. Standard of Review

Petitions under section 388 are construed in favor of their sufficiency. (In re 

Angel B. (2002) 97 Cal.App.4th 454, 461.) Thus, if a petition presents any evidence that 

a hearing would promote the best interests of the child, the court must order the hearing. 

(In re Aljamie D. (2000) 84 Cal.App.4th 424, 431-432.) The court may deny the 

application ex parte only if it fails to state a change of circumstance or new evidence that 

might require a change of order or termination of jurisdiction. (Ibid.)

The decision to grant or deny a section 388 petition is within the discretion of the 

juvenile court. (In re B.D. (2008) 159 Cal.App.4th 1218, 1228; In re Casey D. (1999) 70 

Cal.App.4th 38, 47.) Likewise, a summary denial of a section 388 petition is committed 

to the court's discretion. (In re Angel B., supra, 97 Cal.App.4th at p. 460; In re Zachary 

G. (1999) 77 Cal.App.4th 799, 808.) " 'The appropriate test for abuse of discretion is 

whether the trial court exceeded the bounds of reason.' " (In re Stephanie M. (1994) 7 

Cal.4th 295, 318-319.) " 'When two or more inferences can reasonably be deduced from 

the facts, the reviewing court has no authority to substitute its decision for that of the trial 

court.' [Citation.]" (Walker v. Superior Court (1991) 53 Cal.3d 257, 272.) A reviewing 

court will not disturb the trial court's exercise of discretion unless the trial court's decision 

was arbitrary, capricious, or patently absurd. (In re Stephanie M., at p. 318.)

"That another court might reasonably have reached a different result on this issue, 

however, does not demonstrate an abuse of discretion. An abuse of discretion may be 
12

found only if ' "no judge could have reasonably reached the challenged result. 

[Citation.]" ' " (O'Donoghue v. Superior Court (2013) 219 Cal.App.4th 245, 269; see 

also In re Scott B. (2010) 188 Cal.App.4th 452, 469.) The mother must affirmatively 

establish an abuse of discretion; it is never presumed. (In re Cliffton B. (2000) 81 

Cal.App.4th 415, 423; In re Marriage of Gonzalez (1976) 57 Cal.App.3d 736, 749.)

B. The Court Did Not Abuse Its Discretion

The mother has not met her burden to show the trial court's denial of her petition 

was arbitrary, capricious, or patently absurd. After the court returned L.V. to the 

mother's custody, the mother resumed smoking methamphetamine in very short order and 

did so while she had custody of L.V. She did so despite telling the court that her relapse 

prevention plan was staying sober so she would not again lose L.V. The mother 

exercised poor judgment when she left L.V. in the care of a person who she knew had 

been smoking methamphetamine so that the mother could also smoke the drug. Thus,

despite past reassurances of compliance with services and treatment, she had shown she 

was unable to remain sober even when the stakes involved the loss of L.V.

At the time of the section 388 hearing, the mother presented no evidence that she

was ready to assume custody of L.V. or provide suitable care for her. The court found 

the mother had less stable housing and less time in sobriety than the first time L.V. was 

returned to her. The record supports both of these findings. The mother had been in St. 

Vincent housing for approximately one week, and the organization's letter stated she 

would receive housing and services for only four months with no indication that she 

would be able to stay there for any longer period of time. As the mother had done in the 
13

past when she needed housing, she was likely to return to the maternal grandmother's 

house, the location where L.V. was removed both times. The record does not support any 

contention that the mother could have stayed at St. Vincent longer than four months. Her 

sobriety period was also much shorter. When the court returned L.V. the first time, the 

mother had been sober for approximately 18 months. However, at the time of the section 

388 hearing, she had been sober for less than eight months. Moreover, while the mother 

had a job and was seeking a second job at the time of the hearing, this fact did not 

constitute a changed circumstance because she had a job before the court returned L.V. to 

her. 

In short, while the mother showed she had taken steps to change, she had not 

shown circumstances had changed such that a change of the court's order was possible. 

She had a shorter period of sobriety and only temporary housing. Based on the facts 

before the court, we cannot say that " ' "no judge could have reasonably" ' " summarily 

denied the section 388 petition. (See O'Donoghue v. Superior Court, supra, 219 

Cal.App.4th at p. 269.) The court did not abuse its discretion when it did so.

II. The Continuing Benefit Exception

At the contested section 366.26 hearing, the court found the continuing benefit 

exception did not apply. On appeal, the mother contends substantial evidence supports a 

finding that the continuing benefit exception applied because she shared a parental bond 

with L.V., who would continue to benefit from the relationship. We conclude that 

substantial evidence supports the court's findings.
14

A. Legal Background and Standard of Review

Once a court determines a 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)(B). (In re Zachary G., 

supra, 77 Cal.App.4th at p. 809.) An exception to the adoption preference applies if 

termination of parental rights would be detrimental to the child because the "parents have 

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

continuing the relationship."3 (§ 366.26, subd. (c)(1)(B)(i).)

This court has interpreted the phrase " 'benefit from continuing 

the . . . relationship' " to refer to a relationship that "promotes the well-being of the child 

to such a degree as to outweigh the well-being the child would gain in a permanent home 

with new, adoptive parents. In other words, the court balances the strength and quality of 

the natural parent/child relationship in a tenuous placement against the security and the 

sense of belonging a new family would confer. If severing the natural parent/child 

relationship would deprive the child of a substantial, positive emotional attachment such 

that the child would be greatly harmed, the preference for adoption is overcome and the 

 

3 "Because a section 366.26 hearing occurs only after the court has repeatedly found 

the parent unable to meet the child's needs, it is only in an extraordinary case that 

preservation of the parent's rights will prevail over the Legislature's preference for 

adoptive placement." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) This led 

one court to remark that the continuing benefit exception "may be the most 

unsuccessfully litigated issue in the history of law. . . . And it is almost always a loser." 

(In re Eileen A. (2000) 84 Cal.App.4th 1248, 1255, fn. 5, disapproved on other grounds in 

In re Zeth S. (2003) 31 Cal.4th 396, 413-414.)
15

natural parent's rights are not terminated." (In re Autumn H. (1994) 27 Cal.App.4th 567, 

575, italics added.)

We have further noted that "[i]nteraction between natural parent and child will 

always confer some incidental benefit to the child. The significant attachment from child 

to parent results from the adult's attention to the child's needs for physical care, 

nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from 

day-to-day interaction, companionship and shared experiences. [Citation.] The 

exception applies only where the court finds regular visits and contact have continued or 

developed a significant, positive, emotional attachment from child to parent." (In re 

Autumn H., supra, 27 Cal.App.4th at p. 575.)

However, "[a] biological parent who has failed to reunify with an adoptable child 

may not derail adoption merely by showing the child would derive some benefit from 

continuing a relationship maintained during periods of visitation with the parent. 

[Citation.] A child who has been adjudged a dependent of the juvenile court should not 

be deprived of an adoptive parent when the natural parent has maintained a relationship 

that may be beneficial to some degree, but that does not meet the child's need for a 

parent." (In re Angel B., supra, 97 Cal.App.4th at p. 466.)

This "issue is subject to a sufficiency of the evidence standard of review." (In re 

C.F. (2011) 193 Cal.App.4th 549, 553; see also In re Dakota H. (2005) 132 Cal.App.4th 

212, 228; In re Autumn H., supra, 27 Cal.App.4th at p. 576.) " 'On review of the 

sufficiency of the evidence, we presume in favor of the order, considering the evidence in 

the light most favorable to the prevailing party, giving the prevailing party the benefit of 
16

every reasonable inference and resolving all conflicts in support of the order.' " (In re 

C.F., at p. 553.)

"We do not reweigh the evidence, evaluate the credibility of witnesses, or resolve 

evidentiary conflicts." (In re Dakota H., supra, 132 Cal.App.4th at p. 228.) "The 

judgment will be upheld if it is supported by substantial evidence, even though 

substantial evidence to the contrary also exists and the trial court might have reached a 

different result had it believed other evidence." (Ibid., italics added.) "The appellant has 

the burden of showing there is no evidence of a sufficiently substantial nature to support 

the finding or order." (Ibid.)

B. Substantial Evidence Supports the Court's Findings

Although it is clear that L.V. shared some sort of bond with the mother, substantial 

evidence supports the court's finding that their bond did not rise to the level of a 

beneficial parent-child bond. The court found L.V.'s relationship with the mother was 

similar to the child's relationship with others in her life. Indeed, although L.V. was 

excited to see the mother and showed her affection, she reacted in a similar manner to 

other family members like her aunt Alexandra, who was not her caregiver. Moreover, 

L.V. showed affection to the two social workers assigned to her case and to her day care 

provider. In fact, she reacted excitedly to Wojtach, who was a virtual stranger, on only 

the second time they had met and gave Wojtach a "big hug." Clearly, L.V. is an outgoing 

and affectionate child who freely expresses her enthusiasm and affection. However, the 

fact that she showed affection to the mother does not establish a parental bond. It merely 
17

establishes that L.V. has some bond with the mother—a bond that was no different than 

the bond L.V. shared with others in her life.

The parent must do more than demonstrate "frequent and loving contact[,]" (In re 

Beatrice M. (1994) 29 Cal.App.4th 1411, 1418 ) an emotional bond with the child, or that 

parent and child find their visits pleasant. (In re Elizabeth M. (1997) 52 Cal.App.4th 318, 

324.) Instead, the parent must show that she occupies a "parental role" in the child's life. 

(Ibid.; see also In re Beatrice M., at pp. 1418-1419.)

While L.V. and the mother had pleasant visits, and L.V. was sometimes sad to see 

the visits end, there is no bonding study or other evidence that showed the mother

occupied a parental role in L.V.'s life, that she would suffer any actual detriment on the 

termination of parental rights, or that the benefits of continuing the parental relationship 

outweighed the benefits of permanent placement with family members who are ready to 

give her a permanent home. It is apparent that L.V. looks to the caregiver to fulfill her 

emotional and physical needs. For much of L.V.'s life, the caregiver had been the only 

adult who provided her with food, shelter, protection, and guidance on a regular basis. 

While the relationship between L.V. and the mother is pleasant to L.V., it is not the sort 

of consistent nurturing that marks a parental relationship. (Accord, In re Derek W.

(1999) 73 Cal.App.4th 823, 827.) A friendly relationship is "simply not enough to 

outweigh the sense of security and belonging an adoptive home would provide." (In re 

Helen W. (2007) 150 Cal.App.4th 71, 81.) The trial court properly concluded that the 

continuing benefit exception did not apply in this case.
18

DISPOSITION

The judgment is affirmed.

BENKE, Acting P. J.

WE CONCUR:

AARON, J.

IRION, J.