1

Filed 11/19/20 In re E.A. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Butte)

----

In re E.A. et al., Persons Coming Under the Juvenile 

Court Law.

C091208

BUTTE COUNTY DEPARTMENT OF HEALTH 

AND HUMAN SERVICES,

Plaintiff and Respondent,

v.

S.A. et al.,

Defendants and Appellants.

(Super. Ct. Nos. 18DP000015, 

18DP000016)

Appellants S.A. (mother) and M.A. (father), parents of minors E.A. and M.A., Jr., 

appeal from the juvenile court’s orders denying mother’s petition for modification and 

terminating parental rights as to the minors. (Welf. & Inst. Code, §§ 388, 366.26, 395.)1 

1 Undesignated statutory references are to the Welfare and Institutions Code.
2

Mother contends the juvenile court erred by not considering her petition for modification 

requesting the juvenile court vacate its jurisdiction orders and hold a new evidentiary 

hearing on jurisdiction prior to termination of her parental rights. Father joins in this 

contention. Parents also contend the juvenile court erred by failing to find the beneficial 

parental relationship exception to adoption applied. We affirm.

I. BACKGROUND

On January 24, 2018, Butte County Department of Health and Human Services 

(the Department) filed section 300 petitions on behalf of minors E.A. (born November 

2016) and M.A. (born October 2015), based on allegations of serious physical abuse to, 

and failure to obtain medical care for, E.A., which had resulted in serious brain damage 

and developmental deficits. The petitions alleged E.A. had serious brain damage as a 

result of parents’ physical abuse and that M.A. was at risk of suffering abuse and neglect 

as well. 

E.A. had been admitted to Sutter Hospital on January 17, 2018, and a brain scan 

was performed which indicated that the minor had “black holes” in the brain, or a loss of

brain mass. The treating physician indicated this condition could be the result of three 

possible circumstances: an infection, a major accident (which the parents reported had

not occurred), or physical abuse. The physician believed that the sort of trauma suffered 

by E.A. was most likely the result of physical abuse, such as violently shaking the baby. 

E.A. was found to have “global developmental delay and failure to thrive.” Her brain 

MRI was significantly abnormal and included a large cyst/hydrocephalus and subdural 

effusions with hemosiderin suggestive of intracranial bleeds, potentially of different ages, 

which were concerning for non-accidental trauma, especially considering the lack of 

other organic etiology. 
3

The 14-month-old E.A. was reported to be the size of a three-month-old child, and 

had significant developmental delay in that she was unable to sit or roll over.2 The minor 

was not eating solid foods and drank only six ounces of formula a day. Mother reported 

the minor had cried “non-stop” for the first three months and then, one day, she became 

quiet and would not eat. 

The petitions also alleged that the minors’ older sibling had been subjected to 

severe parental abuse and that parents had their parental rights terminated as to the sibling 

in May 2011. The sibling, Ma.A., had been admitted to the hospital when she was three 

months old with “significant injuries including fractures in both arms and both legs, 

multiple fractured ribs in various stages of healing, and four fractured vertebrae.” Parents 

were convicted, after entering no contest pleas, of felony child abuse in connection with 

the abuse of Ma.A. (Pen. Code, § 273a, subd. (a).) 

The juvenile court issued a protective custody warrant for E.A. and M.A. and the 

minors were formally detained on February 5, 2018. Parents were provided visitation. 

The jurisdiction hearing was set for February 22, 2018. 

The jurisdiction hearing was continued numerous times over the course of the 

following year, first for mother’s request to seek authorized funding for an expert witness 

(which was granted), and then for mother to obtain the expert and allow the expert to 

review and report his findings. Then, on January 10, 2019, as a result of parents’ 

intentions to file a nomination to appoint the caretaking relatives as guardians, the 

contested jurisdiction hearing was vacated, and a jurisdiction and guardianship 

nomination hearing was set. 

The jurisdiction hearing and guardianship nomination hearing took place on 

January 31, 2019. Parents objected to jurisdiction, although neither presented testimony 

2 These allegations were included in the amended petitions, filed in January 2018. 
4

or further evidence. The juvenile court found the allegations in the petitions true, 

sustained the petitions, and set a disposition hearing and guardian assessment for 

March 28, 2019. 

Prior to the disposition hearing, the relative caregivers expressed their interest in 

adopting the minors. Both minors were doing well in their care. Although M.A. did get 

upset when he had to say goodbye to parents after visits, he remained stable and had no 

major issues. He was “clearly very comfortable and happy” in the relatives’ care, showed 

affection to his caregivers and looked to them for comfort. E.A. had substantially 

improved in foster care placement prior to being placed with her relative caregivers. The 

relative caregivers were able to provide even more focused care for E.A., making all of 

her many medical and developmental appointments a priority, and E.A. continued to 

progress in their care. E.A. could vocalize, but not form words, and could roll over, but 

not walk. She had a gastrostomy tube installed but had been slowly expanding her oral 

food intake. Parents were consistent in their visitation attendance and visits were positive 

and appropriate. The Department emphasized that while it may never know exactly what 

happened to E.A. to cause her medical issues, whatever the precise (and likely 

nonaccidental) cause, parents should have recognized E.A. had urgent issues that required 

medical attention, and their failure to address those issues had caused permanent damage. 

The Department recommended parents be bypassed for reunification services pursuant to 

section 361.5, subdivisions (b)(6) [severe physical harm to sibling Ma.A. by parent] and 

(b)(11) [termination of parental rights to sibling Ma.A.] and, instead of guardianship, a 

permanent plan of adoption with the relative caregivers be pursued. 

The disposition hearing took place on May 20, 2019. Parents objected to the 

Department’s recommendation but did not present any testimony or additional evidence. 

The juvenile court declared the minors dependents of the court, ordered the minors 

removed from parental custody, bypassed parents for reunification services, and set a 

section 366.26 hearing. 
5

The Department’s report filed August 26, 2019, recommended termination of 

parental rights and a permanent plan of adoption. The minors continued to do well in 

their placement with the relative caregivers, the minors were considered adoptable, and 

the caregivers were committed to providing permanency for them. M.A. was noted to be 

medically healthy but had a slight developmental delay. He was described as curious and 

content and showed no signs of struggling with his mental and emotional health. There 

were also no longer concerns about his transitions at the end of visits with parents and he 

appeared comfortable and happy in his placement home. E.A. had continued to make 

significant progress toward developmental goals since her placement with the relative 

caregivers. 

Parents claimed, as they had claimed in sibling Ma.A.’s case, that a rare genetic 

condition was the cause of E.A.’s medical condition. They had continued to attend 

supervised visits twice a week. The visits were described as positive but unremarkable. 

The minors attended the visits, enjoyed limited time with parents, and returned home to 

the caregivers. Neither minor showed any negative reactions before or after visits. M.A. 

transitioned well after visits. Due to the extent of her brain injury, E.A. did not appear to 

benefit or face negative repercussions as a result of the visits. Visitation did not appear to 

disrupt the minors’ daily routines but, because the case had been pending for well over a 

year, it had become established as part of M.A.’s routine. Accordingly, the Department 

recommended visitation be gradually reduced upon termination of parental rights to avoid 

the disruption of his routine. The juvenile court granted parents’ request for funding for 

an expert witness to do a bonding study. 

On October 23, 2019, mother filed a declaration and letter from Heather 

Kirkwood, an attorney in Washington state, and a preliminary report of Dr. Roland 
6

Auer.3 According to the Kirkwood letter, dated July 17, 2019, she was contacted in 

February 2019, briefly reviewed records from January, 15, 2018, January 15, 2019, and 

April 18, 2019, and had concluded that E.A. has porencephaly—a rare disorder that 

presents with brain cysts, loss of brain tissue, and developmental delay. She had also 

concluded that sibling Ma.A. had coagulation abnormalities and weak bones 

(rickets/osteopenia). Dr. Auer’s preliminary report, dated October 21, 2019, indicated he 

had been contacted by Kirkwood on February 21, 2019, who asked him to look at E.A.’s 

January 15, 2019 MRI scans. His initial differential diagnosis included: hydrocephalus, 

porencephaly, and subarachnoid cyst (of which he lists several possible types). Several 

months prior to the preparation of his report, Auer was contacted by father’s attorney, 

who asked him to provide a formal opinion based on a complete review of the medical 

records. He agreed to do so but did not receive the medical records. The additional 

information he did receive (including descriptions of the January 2018 MRIs and of 

E.A.’s delayed growth and development) was consistent with porencephaly. 

On November 5, 2019, mother filed the bonding study and its addendum, prepared 

by Ce Eshelman. The bonding study was based on interviews with the social worker and 

parents, parents’ bonding self-reports, a review of court documents, and a parent-child 

observation during a scheduled visit. Other assessment methods, such as a child 

attachment assessment, projective drawing assessment, or sentence completion 

assessment were not administered due to the age or ability of the minors. Eshelman 

found parents’ narrative of how they lost parental rights to Ma.A. and were now facing 

the same fate with E.A. and M.A., despite their adamant denial that they abused any of 

the children, to be “compelling and heart-wrenching.” 

3 The documents were not filed in connection with a motion or petition. The submission 

referenced October 24, 2019, which was the trial readiness date. 
7

Eshelman observed parents’ contact with the minors to demonstrate their love and 

bonds to the minors. They were engaged and attentive to both minors’ needs, 

collaborating in an unforced and cooperative manner. Mother demonstrated an 

understanding of E.A’s nonverbal communication and accommodation of E.A.’s 

preferences and needs. E.A. made eye contact with mother and demonstrated smiling and 

engaging vocal noises toward mother. M.A. referred to parents as “mom” and “dad,” 

demonstrated deference to parents’ instructions, and sought positive attention such as 

being watched while performing challenges. He was not, however, overly verbally 

affectionate and showed “little demonstrative physical affection toward either parent.” 

Eshelman noted that, given the infrequency of visits, more enthusiasm upon seeing 

parents and more fanfare upon departure might have been expected. Neither minor, 

however, showed big overtures of affection upon greeting or distress upon departing. 

Eshelman concluded that parents were clearly bonded to the minors. They had more 

difficulty parting than the minors, prolonging goodbyes and making many overtures. 

Eshelman stated that, due to her disabilities, it was “not possible to fully assess the 

strength of [E.A.’s] attachment to her parents. However, she does not shy away, fuss, or 

refuse either parent’s engagement or affection, though it is unclear how much she 

comprehends. I am, therefore, determining that she demonstrated attachment to her 

parents by her frequent smiling[,] laughter[,] and lack of distress.” M.A. clearly enjoyed 

parents’ company. Eshelman concluded that both minors appeared attached to parents. 

She remarked that “[a]ttachment is one of the most important aspects of child 

development—wounds to which last a lifetime,” and concluded that “[d]ue to the quality 

and significance of the attachment [the minors] have with their parents,” it was her 

opinion that adoption was not in their best interest. 

The section 366.26 hearing commenced on December 5, 2019. Adoption 

specialist Rachelle Duvall testified that the minors were adoptable and that she believed 

adoption was in their best interest. She had reviewed the visitation notes that described 
8

the parents’ visits as “unremarkable” and explained that this meant the “emotional states 

of the children do not change from when the caregivers drop them off to bring, and spend 

time, and have visits with parents, there’s no change in emotion or mood. They’re just 

stable, which means . . . they have those bonds with their current caregivers, so there’s no 

disruption between.” Duvall did not believe there were any benefits to maintaining the 

relationship with parents that would outweigh the benefits of adoption. 

Visitation coordinator Deanne Perry testified she had been supervising visits since 

March 2018. Parents’ visits were heavily supervised and were always positive. Parents 

behaved in a parental manner, not just like friendly visitors, working together, switching 

roles, and sharing responsibilities during visits. The relationship between parents and the 

minors appeared positive and akin to a “close-knit family.” When visits were recently 

reduced to once a month, however, she did not notice a lot of difference in the minors’ 

behaviors. M.A. would sometimes cry at the end of visits, but not inconsolably so. He 

generally transitioned well back to his caregivers. E.A. never cried at the end of a visit. 

The minor’s caregiver confirmed M.A. used to ask about seeing parents but he no longer 

asked about seeing them or appeared upset about not seeing them. M.A. referred to the 

caretakers as “mom and dad.” 

Eshelman testified as an expert in the area of bonding, attachment, and trauma. 

She testified that when conducting a bonding study, she examines a number of factors

including a historical perspective of the preexisting relationship between the child, as 

well as the child’s age. It was her belief that it is better to terminate parental rights for an 

older child than a younger child. However, age is not a factor in whether a child is 

attached to a parent. A child is either attached or not attached. 

As part of her bonding assessment in this case, Eshelman observed a four-hour

visit between the parents and minors. During this observed visit she would have 

expected the minors to show “big overtures of affection upon greeting or distress upon 

departing,” but she did not observe any such behavior during the visit. M.A. was not as 
9

“enthusiastic” with parents as she would have expected of a child who is attached, but he 

clearly enjoyed being with them. E.A., despite her severe disabilities, was able to 

communicate with parents, who understood and were responsive to her needs. Based on 

these observations, Eshelman concluded the minors “behaved in a very attached way”

and were “very attached” to parents. 

Eshelman believed it would be detrimental to the minors “to allow them to be 

adopted and terminate . . . parental rights.” Her opinion was based upon her “awareness 

of attachment, trauma, and what it does to the brain of a child for its lifetime.” She 

testified that all children have implicit memory of their biological parents for the first 33 

months of the child’s life and, regardless of the child’s age, the child will be “impacted 

for a lifetime” by losing their biological parents. “If they lose their biological parent 

under the age of 3, within the first 33 months, they’re going to be more significantly 

impacted.” She testified that the California dependency system is “lag[ging] behind 

evidence based models” and that the “permanency priority is mistaken.” In her opinion, 

terminating parental rights is always detrimental to a child “but you can weigh what else 

might be more detrimental.” She explained that she would not say maintaining parental 

rights with a parent who is abusive is a better choice than adoption and, in cases where a 

child is being abused by a parent, it would be appropriate to terminate parental rights. 

She acknowledged that the court believes what occurred in this case was abusive but she, 

personally, did not think that it was likely to recur. She had come to “a different 

interpretation” and believed it was “like a one time, poor decision that was traumatic, 

granted,” and that parents would need a lot of psychoeducation if they were to ever get 

their children back. She opined that permanency is important, but not more important 

that a securely attached biological family. 

The juvenile court found the minors were likely to be adopted, that the beneficial 

parental relationship exception to adoption did not apply, and terminated parental rights. 

In finding the benefit from parental rights remaining intact did not outweigh the benefits 
10

of permanency through adoption, the court rejected Eshelman’s theory that adoption is 

almost never in a minor’s best interests, but also found that the instant matter fell within 

Eshelman’s acknowledged exception that adoption may be appropriate when parents are 

abusive. 

II. DISCUSSION

A. Mother’s Petition for Modification

On December 16, 2019—the third day of the section 366.26 hearing—mother filed 

a section 388 petition for modification requesting the court hold a new jurisdiction 

hearing.4 Mother alleged parents had received a preliminary report from a physicianscientist concluding that, based on his review of E.A.’s scans, her condition was likely 

congenital, and had a second preliminary report from a different physician concluding 

that, based on a review of sibling Ma.A.’s scans, she likely had congenital rickets. 

Mother contends the juvenile court committed reversible error by failing to consider her 

petition until after terminating parental rights. 

We reject mother’s contention that the juvenile court “should have unequivocally 

considered the modification petition by either denying it without a hearing or setting a 

hearing, prior to ordering the termination of parental rights.” Mother relies on In re 

Alayah J. (2017) 9 Cal.App.5th 469 (Alayah J.), which found the juvenile court erred 

when it refused to hear the mother’s petition for modification seeking unmonitored visits 

and a home assessment, unless or until it decided not to terminate parental rights. 

4

In her petition, mother states that the court made an order on May 20, 2019, sustaining 

the petitions and ordering no reunification for the parents. As set forth in the procedural 

background, the juvenile court sustained the petitions and made jurisdictional findings 

and orders on January 31, 2019. The court bypassed parents for reunification services in 

its May 20, 2019 dispositional orders. Mother’s petition, however, requested only a new 

jurisdiction hearing. 
11

However, unlike the mother in Alayah J., mother here expressly conditioned her request 

that the court consider her petition on the court’s decision to terminate parental rights.

In her petition, mother specified, “If the [c]ourt is unable to find that the beneficial 

relationship exception to adoptability applies and does not order guardianship, we ask the 

court to consider this motion.” After the section 388 petition was filed on December 16, 

2019, a discussion took place between the court, mother’s counsel, and deputy county 

counsel about when the petition should be considered by the court. After the court 

acknowledged the filing, mother’s counsel again specified that “we’re only asking that 

[it] be considered if the [c]ourt finds that the exception to adoptability doesn’t apply.” 

Counsel for respondent objected to the timeliness of the filing and the lack of sufficient 

notice. The court deferred the decision until after the conclusion of the day’s testimony 

of whether to delay argument and ruling on the section 366.26 matters to allow for proper 

notice on the section 388 petition or, instead, whether mother wished the court move on 

to argument and take the petition under submission. Father’s counsel indicated he wished 

to have argument set for a later date since there had been three days of testimony. The 

court then noted that mother’s petition was missing pages. Mother filed the missing 

pages on December 30, 2019, to be considered at the January 2, 2020 trial date. 

Testimony continued and was concluded on January 2, 2020, the fourth day of the 

section 366.26 hearing. At the conclusion of mother’s counsel’s argument on the section 

366.26 issues, she again asked that if the court did not find the parent-child relationship 

exception to adoption applicable, that the court set the modification petition for hearing.

After the court issued its order terminating parental rights, mother’s counsel inquired if 

the court was denying her a hearing or denying the petition for modification. The court 

responded, “I think it’s kind of moot at this point. [¶] Would you like me to rule on it?

JV-180 [petition for modification] is denied.” 

The record is clear that mother specifically conditioned her request that the court 

consider the petition for modification on its decision to terminate parental rights. She 
12

expressly asked the court to consider it only if it found the beneficial parental relationship 

exception did not apply. Mother cannot, therefore, now be heard to complain that the 

court did not consider her motion prior to deciding to terminate parental rights.

In any event, even if the court should have considered the merits of mother’s 

petition prior to its decision to terminate parental rights, despite the qualification in the 

petition, the petition was ultimately and properly summarily denied as it failed to make

the requisite prima facia showing. This, too, distinguishes the instant matter from 

Alayah J., in which the court did not rule on the mother’s petition at all. (Alayah J.

supra, 9 Cal.App.5th at pp. 477, 480.) It also forms the basis for our rejection of 

mother’s contention that her appointed counsel provided ineffective assistance by not 

asking for a ruling prior to the court’s decision to terminate parental rights. Regardless of 

when the requested ruling was sought, the result would have been the same. Thus, she 

cannot establish it is reasonably probable a more favorable determination would have 

resulted if counsel had requested the ruling earlier, which is required to obtain reversal 

based on the representation of counsel. (People v. Scott (1997) 15 Cal.4th 1188, 1211 

[appellant must show counsel’s representation fell below an objective standard of 

reasonableness and the deficient performance was prejudicial in that it is reasonably 

probable a more favorable result would have occurred absent counsel’s failings]; People 

v. Kipp (1998) 18 Cal.4th 349, 366-367 [appellate court need not consider whether the 

challenged actions were deficient if prejudice is not shown].)

Section 388, subdivision (a)(1) provides that a parent of a dependent child may 

petition the juvenile court “upon grounds of change of circumstance or new evidence . . . 

for a hearing to change, modify, or set aside any order of court previously made.” 

Section 388 permits modification of a dependency order if a change of circumstance or 

new evidence is shown and if the proposed modification is in the best interests of the 

minor. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526.) The party petitioning for 
13

modification has the burden of proof by a preponderance of the evidence. (In re 

Casey D. (1999) 70 Cal.App.4th 38, 48.)

Section 388 petitions for modification are to be liberally construed in favor of 

granting a hearing, requiring only a prima facie showing by the parent. (In re Marilyn H.

(1993) 5 Cal.4th 295, 309-310.) However, if when so construed, the petition fails to 

make a prima facie case both that there is new evidence/changed circumstances and that 

the minors’ best interests would be served by changing the juvenile court’s order, the 

court need not order a hearing. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) We 

review the summary denial of a section 388 petition for abuse of discretion. (Ibid.; see

also In re G.B. (2014) 227 Cal.App.4th 1147, 1158; In re S.R. (2009) 173 Cal.App.4th 

864, 870.)

Here, the new evidence or changed circumstance alleged in the petition to warrant 

the requested new jurisdiction hearing was that “[p]arents have received a preliminary 

report from a board-certified physician-scientist, neuropathologists who based upon a 

review of [E.A.]’s MR scan images from 1/15/19” opines that E.A. has severe 

porencephaly, which was likely congenital, and that her condition was likely not related 

to post-natal abuse. (Italics added.) The petition was also supported by a May 9, 2011 

preliminary report prepared by Dr. Patrick Barnes and based on review of sibling Ma.A.’s 

May 2010 brain and skeletal imaging scans, concluding the scans strongly suggest the 

presence of congenital rickets as a result of a vitamin D deficiency and suggesting the 

case be reviewed by a specialist. Mother provided a history of her pregnancies, including 

the medications she took, her tobacco use, and the difficulties she incurred. The petition 

also attached a second declaration from attorney Kirkwood summarizing these doctor 

reports and summarizing mother’s pregnancies.

As reflected above, the alleged new evidence was simply new expert opinions 

based on previously available evidence—scans that were completed prior to the 

jurisdiction hearing in this case. As we held in In re H.S. (2010) 188 Cal.App.4th 103, 
14

105-107, on facts almost identical to those in the instant matter, the belated opinion of an 

expert based on evidence available at the jurisdiction and disposition hearings does not 

constitute new evidence within the meaning of section 388. (In re H.S., supra, at p. 107.) 

“ ‘ “Public policy requires that pressure be brought upon litigants to use great care in 

preparing cases for trial and in ascertaining all the facts. . . .” [Citation.]’ (Kulchar v. 

Kulchar (1969) 1 Cal.3d 467, 472; see Baldwin v. Home Savings of America[ (1997)] 59 

Cal.App.4th[ 1192, ]1198.) A rule that would allow the reopening of cases previously 

decided, simply because a party identifies evidence that it could have presented at trial, 

but did not, ‘ “would in a large measure vitiate the effects of the rules of res judicata.”

[Citation.]’ (Kulchar v. Kulchar, supra, []at p. 472.) [¶] This public policy applies even 

more forcefully to dependency cases, where delay is antithetical to the primary focus of 

dependency proceedings, the best interests of the child. (In re Marilyn H.[, supra,] 

5 Cal.4th [at p. ]308.)” (In re H.S., supra, at p. 108.)

In response, mother argues we must, nonetheless, remand the matter to the 

juvenile court to determine whether she used due diligence in obtaining the subject expert 

opinions. Even if we were to conclude that the use of due diligence, but nonetheless 

failure, to obtain new expert opinions based on previously available evidence is an 

exception to the holding in In re H.S., which we do not so hold, remand is not required. 

Here, mother requested, and the juvenile court approved, funding for an expert prior to

the jurisdiction hearing. The jurisdiction hearing was then continued for 11 months—

from February 22, 2018, to January 31, 2019. Thereafter, another 11 months passed, 

during which time mother clearly “discovered” the “new” expert opinion (at the very 

least by October 23, 2019, when she filed Auer’s preliminary report and Kirkwood’s

declaration with the court). Yet, no petition for modification was filed until the third day 

of the section 366.26 hearing on December 16, 2019.

Finally, we reject mother’s contention that reversal is required because the 

Department did not object, and the court did not deny her petition, based on her failure to 
15

allege new evidence. Whether the Department’s objection that mother had been given 

plenty of time to gather these expert theories constituted an objection that she had not 

made a showing of new evidence is irrelevant. The burden to make a prima facie 

showing of either new evidence or changed circumstances to warrant a hearing was on 

mother. She did not make such a showing. And, while the court did not give all its 

reasons for summarily denying mother’s petition, it did question mother’s counsel to 

clarify that she had, in fact, retained the expert the court had authorized prior to the 

jurisdiction hearing, that expert (who was a pediatrician, not a neurologist) reviewed the 

extensive medical records, and she was not “able to get a response from him which would 

support fighting it.” 

In sum, mother was not entitled to a hearing on her petition because she failed to 

make a prima facie showing of the existence of any new evidence or changed 

circumstance to support her request for a new jurisdiction hearing. The juvenile court’s 

summary denial of her petition was not error.

B. Beneficial Parental Relationship Exception

Parents also contend the juvenile court erred by failing to find the beneficial 

parental relationship exception to adoption applied. We disagree.

At the selection and implementation hearing held pursuant to section 366.26, a 

juvenile court must choose one of the several “ ‘possible alternative permanent plans for 

a minor child. . . . The permanent plan preferred by the Legislature is adoption. 

[Citation.]’ [Citations.] If the court finds the child is adoptable, it must terminate 

parental rights absent circumstances under which it would be detrimental to the child.” 

(In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.)

There are only limited circumstances which permit the court to find a “compelling 

reason for determining that termination [of parental rights] would be detrimental to the 

child.” (§ 366.26, subd. (c)(1)(B).) Such circumstances include when “[t]he parents have 

maintained regular visitation and contact with the child and the child would benefit from 
16

continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i) [beneficial parental 

relationship exception].)

To prove that the beneficial parental relationship exception applies, the parent 

must show there is a significant, positive emotional attachment between the parent and 

child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) And even if there is 

such a bond, the parent must prove that the parental relationship “ ‘promotes the wellbeing of the child to such a degree as to outweigh the well-being the child would gain in a 

permanent home with new, adoptive parents.’ ” (In re S.B. (2008) 164 Cal.App.4th 289, 

297, quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 575; accord In re Jasmine D.

(2000) 78 Cal.App.4th 1339, 1345.) “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 natural parent’s rights are not terminated.” (In re Autumn H., supra, at 

p. 575.) On the other hand, “ ‘[w]hen the benefits from a stable and permanent home 

provided by adoption outweigh the benefits from a continued parent[-]child relationship, 

the court should order adoption.’ ” (In re Jasmine D., supra, at p. 1350; see In re Autumn 

H., supra, at p. 575.)

“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., supra, 78 Cal.App.4th at p. 1350, italics added.) 

“ ‘Adoption is the Legislature’s first choice because it gives the child the best chance at 

[a full] emotional commitment from a responsible caretaker.’ ” (In re Celine R. (2003) 

31 Cal.4th 45, 53, quoting In re Jasmine D., supra, at p. 1348.) The beneficial parental 

relationship exception to adoption is an exception to the general rule that the court must 
17

choose adoption where possible, and it “ ‘must be considered in view of the legislative 

preference for adoption when reunification efforts have failed.’ ” (In re Celine R., supra, 

at p. 53.)

The party claiming the exception has the burden of establishing the existence of 

any circumstances that constitute an exception to termination of parental rights. (In re 

C.F. (2011) 193 Cal.App.4th 549, 553.) The factual predicate of the exception must be 

supported by substantial evidence, but the juvenile court exercises its discretion in 

weighing that evidence and determining detriment. (In re K.P. (2012) 203 Cal.App.4th 

614, 622; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315.)

Parents did not meet their burden here. Although they maintained regular 

visitation and visitation went well, they failed to establish that the minors had such a 

significant, positive emotional attachment to them that the benefit of maintaining it 

outweighed the benefits the minors would obtain from adoption. (See In re Autumn H., 

supra, 27 Cal.App.4th at p. 575.) Considering, as the court must, factors such as the age 

of the children, the portion of the children’s life spent in the parent’s custody, the positive 

or negative effect of interaction between the parent and the children, and the children’s 

particular needs (In re Zachary G. (1999) 77 Cal.App.4th 799, 811), the juvenile court 

did not err in determining the beneficial parental relationship exception to adoption does 

not apply.

By the time of the section 366.26 orders, the minors, who were detained at ages 

one and two, had been out of parental custody for almost two years. Their visits with 

parents had been positive but the minors were unaffected by visits being reduced from 

several two-hour visits a week to one hour per month and had not asked about visits after 

visitation was reduced. M.A. looked to parents for comfort during visits but otherwise 

looked to his caretakers, to whom he referred to as “mom and dad,” for comfort. 

Although Eshelman would have expected the minors to show “big overtures of affection 

upon greeting or distress upon departing,” this did not take place. M.A. enjoyed parents’ 
18

company but was not as “enthusiastic” with parents as Eshelman would have expected of 

a child who is attached, and neither child had trouble separating from parents at the end 

of visits. Additionally, while both young minors are in need of permanency, E.A.’s

severe disabilities, special needs, and many medical and developmental appointments 

make her in particular need of the full commitment of her caretakers.

Father relies heavily on the testimony of Eshelman in arguing they met their 

burden to establish the benefits from a continued parent-child relationship outweighed the 

benefits of adoption in this case. Eshelman testified that children are either attached, or 

not attached, and that these minors were attached to parents. Father argues that this is 

“one of those ‘rare cases’ when the juvenile court failed to recognize the benefit of 

maintaining [the parents-child relationship],” but Eshelman did not testify that this is a 

rare case. To the contrary, she testified that an attached child is always irreparably and 

forever harmed by being put in “a toxic stress state that doesn’t calm down,” if parental 

rights are terminated. She believed, contrary to the Legislature’s mandate, that adoption 

should not be the preferred plan because the detriment of losing contact with the 

biological parents always outweighs the benefits of permanency. The only exception she 

referenced was when the parents abused the child.

Even assuming the juvenile court was free to reject the Legislature’s mandate that 

adoption is the preferred plan and controlling caselaw requiring the court consider certain 

factors when determining whether the benefits of maintaining a relationship with 

biological parents outweighs the benefits of adoption, it was free to reject Eshelman’s 

theories, as well. An expert opinion is not binding on the court. The court, as trier of 

fact, may reject even uncontradicted testimony from an expert witness, as long as it does 

not act arbitrarily. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 890.) Here, 

the court expressly considered Eshelman’s testimony and theories, and rejected her 

theories as novel and untested. It also found that, considering the facts of this case, it was 

very clear that adoption was in the minors’ best interests. Additionally, the court found 
19

the instant case falls within the single exception Eshelman identified to her belief that 

preserving parental rights is always preferential to adoption—cases of abusive parents. 

Although Eshelman considered parents’ denials of abuse to be “compelling” and 

preferred to think of the parents’ actions as “medical neglect,” the court had previously 

found, and unequivocally believed based on the evidence, that both E.A. and her sibling, 

Ma.A., had been abused, and both had been severely injured at the age of three months. 

The juvenile court also found it inexcusable and extraordinarily negligent that neither

parent brought E.A. to get medical assistance for a year when something was very clearly 

wrong with her. 

In sum, parents did not establish this to be “an extraordinary case” that 

preservation of parental rights must prevail over the Legislature’s preference for adoptive 

placement. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)

III. DISPOSITION

The orders of the juvenile court are affirmed.

 /S/

RENNER, J.

We concur:

/S/

 

DUARTE, Acting P. J.

/S/

 

HOCH, J.