1

Filed 6/12/14 In re Gemma K. CA1/2 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIRST APPELLATE DISTRICT 

DIVISION TWO 

In re Gemma K., a Person Coming Under 

the Juvenile Court Law. 

SAN FRANCISCO COUNTY HUMAN 

SERVICES AGENCY, 

 Plaintiff and Respondent, 

v. 

R.C., 

 Defendant and Appellant. 

 A140505 

 (San Francisco City and County 

 Super. Ct. No. JD11-3076) 

 R.C. (appellant), mother of three-year-old Gemma K., appeals from the juvenile 

court’s order, pursuant to Welfare and Institutions Code section 366.26,1

 terminating her 

parental rights and ordering adoption as the permanent plan. Appellant contends the 

juvenile court improperly found that she had failed to establish the applicability of the 

beneficial parent-child relationship exception to adoption. We shall affirm the juvenile 

court’s order. 

FACTUAL AND PROCEDURAL BACKGROUND 

 On March 11, 2011, the San Francisco County Human Services Agency (Agency) 

filed a petition alleging that seven-month-old Gemma came under section 300, 

 1

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

otherwise indicated. 
2

subdivision (b), as a result of appellant’s inability to provide her with adequate care, 

supervision and protection.2

 Gemma was detained. The detention report filed by the 

Agency described the circumstances leading to detention. Appellant and Gemma’s father 

had a relationship characterized by domestic violence. On March 4, 2011, appellant and 

Gemma’s father began to argue about appellant’s level of intoxication. Appellant pushed 

the father on the bed and began to punch him in the face with closed fists. The father 

reacted by scratching appellant’s face and neck. The father called the police, appellant 

was arrested, and an emergency protective order issued. After appellant’s incarceration, 

the Agency met with Gemma’s maternal grandmother to develop a safety plan for the 

baby’s care, while child protective services investigated the referral. 

 Gemma was born premature and had severe medical problems, including chronic 

lung disease. She required daily nebulizer and oxygen treatment. Because of her severe 

medical and respiratory problems, she was not able to come into contact with sick 

children or adults. She required supervised visitation where she would not come into 

contact with numerous individuals. 

 Before the detention hearing, the social worker met with the maternal grandmother 

to create a safety plan for her care for Gemma and for her older brother (who was already 

living with the maternal grandmother) while CPS continued its investigation. A team 

decision-making meeting was held March 9, 2011, and appellant agreed to meet with the 

domestic violence specialist from Positive Directions. The social worker referred 

appellant to Homeless Prenatal Program (HPP) for a substance abuse assessment and to 

the National Council on Alcoholism and Other Drug Addictions-Bay Area for drug 

testing. The social worker also referred the parents and Gemma to Foster Care Mental 

Health for counseling, medication evaluation, and therapeutic visits. At the continued 

detention hearing on March 17, 2011, Gemma was detained in foster care. 

 2

 Most of the facts regarding events occurring before the section 366.26 hearing 

are taken from our prior nonpublished opinion in this matter, filed on May 9, 2013, in 

which we denied appellant’s petition for extraordinary writ, pursuant to California Rules 

of Court, rule 8.452 (rule 8.452). (R.C. v. Superior Court (A137894).) 
3

The disposition report, filed on April 21, 2011, related that issues around violence 

and substance abuse had caused the removal of Gemma from appellant. Upon meeting 

the social worker, appellant presented as “very depressed.” She had a history of mental 

illness and had been hospitalized for depression. Appellant did not admit to any 

substance abuse. However, she was testing and attending services. She was also in a 

domestic violence class at the Riley Center. Although the violence between appellant 

and the father was severe, appellant refused to discuss it at all. The Agency had made 

referrals for individual therapy and a psychological evaluation and was waiting for 

appellant to be assigned. Appellant was receiving therapeutic visits with Gemma twice a 

week at A Better Way. The Agency also had obtained and delivered a Fast Pass to 

appellant and, when she stated she lost the pass, she was given tokens. 

 The child remained medically fragile. She required oxygen at night, along with a 

medication for lung distress. She used Pulmicort for her nebulizer twice daily. She 

appeared alert and had a good appetite. She was receiving services from Golden Gate 

Regional Center for gross motor skill delays. 

 On June 20, 2011, at the conclusion of the combined jurisdiction/disposition 

hearing, the court declared a dependency for Gemma and found true the following: 

“B1—The mother has a substance abuse problem for which she requires assessment and 

treatment and which impedes her ability to safely parent the child. [¶] . . . [¶] B5—The 

mother has mental health issues, including psychiatric hospitalizations, for which she 

requires assessment and treatment and which impede her ability to safely parent the child. 

[¶] . . . [¶] B9—The child is at risk of physical harm in that the parents have a 

relationship in which they have engaged in domestic violence with the child present. 

Further, both the mother and father have sustained injuries during these incidents.” 

 Other allegations regarding the father alone were also sustained. The court struck 

several other allegations, including Count B6, which had alleged appellant had 

developmental delays requiring assessment and treatment and which impeded her ability 

to safely parent Gemma. 
4

 The court found the Agency had made “reasonable efforts” to prevent or eliminate 

the removal of Gemma from the home. Services recommended by the Agency and 

ordered by the court for appellant included: That she undergo “individual 

counseling/Therapy which addresses Domestic Violence, Trauma, Effective 

Communication, Self-Esteem and the Effects of Violence on Children”; that she “remain 

under the care of a qualified mental health professional and comply with the mental 

health professional’s recommendations for psychotherapy and/or prescribed medication”; 

that she “maintain a clean and safe home for the child[]”; and that she “refrain from 

substance abuse and participate in services recommended from the substance abuse 

assessment.” The court ordered the father, but not appellant, to “actively participate in a 

52-week DV [domestic violence] program.” 

 In the six-month review report, filed on January 30, 2012, the Agency reported 

that appellant was engaged in services, appeared to be maturing, and was working 

towards completing her requirements to reunify with Gemma. The Agency reported it 

intended to move visitation to appellant’s home in an effort to advance her progress 

toward reunification. The social worker reported that appellant’s home appeared neat 

and clean and that appellant had worked hard to clean her home in preparation for 

Gemma’s return. Appellant had been working closely and consistently with A Better 

Way to improve her parenting skills and had visited consistently, demonstrating 

improved parenting skills. 

 All appellant’s drug tests had been positive for marijuana. Appellant had a 

cannabis card and tested within the limits according to California law. Appellant stated 

she was making efforts to reduce her use and her test levels were initially high, but were 

down recently. 

 Appellant had been referred to Jane Christmas for psychological testing on 

March 30, 2011. Appellant reported she had completed the testing over the summer, but 

when the worker contacted Christmas to obtain a copy of the report in October, she 

learned that appellant had started the testing but never finished it. The worker arranged a 

follow up appointment with Christmas. 
5

 Appellant was being seen by Lindsey Ewick, a therapist at Bayview Mental Health 

for therapeutic services. However Ewick had not responded to the worker’s November 

request for information. Ewick stated she needed to confirm she had a release of 

information from appellant. As of January 5, 2012, she had not returned the worker’s 

phone calls. There had been no reported instances of domestic violence during the 

reporting period. 

 The report expressed the concerns of Gemma’s doctor that she not be exposed to 

second hand smoke, given her chronic lung disease. Appellant reported she did not 

smoke in the house. According to Gemma’s physical therapist, she needed more tummy 

time to start crawling and her fine motor skills were also delayed. 

 At the March 1, 2012 hearing on the six-month status review, the court found a 

substantial probability Gemma would be returned to the physical custody of the parent 

within six months. It found the Agency had made “reasonable efforts” to aid the parent 

to overcome the problems leading to the initial removal and continued custody of 

Gemma. It also found appellant’s progress had been “substantial.” The court ordered 

continued services to be provided to appellant and set the 12-month hearing for April 26, 

2012. 

 The court also found the father had made no progress and terminated the 

supportive services the Agency had been providing. 

 The status review report for the 12-month hearing, filed on April 9, 2012, 

recommended an additional six months of services be provided appellant. The report 

related that in December 2011 and January 2012, appellant was “5150’d due to 

depression[;] however she was discharged right away.” At the time of the report, 

appellant was on medication. She continued to see Ewick for therapeutic services. 

Ewick told the worker on April 4, 2012, that she could not provide an update on therapy 

without first reviewing the consent forms. Ewick did not thereafter provide a progress 

report. 

 Appellant completed her psychological evaluation with Christmas and “the 

evaluation indicated the presence of significant mental health problems, for which 
6

[appellant] needs intensive support to address.” Appellant had a dual diagnosis of 

depression, not otherwise specified; alcohol abuse, and a personality disorder 

characterized by paranoid and narcissistic traits; and limited cognitive capabilities. 

Insofar as appellant’s ability to care for Gemma was concerned, Christmas recommended 

that appellant attend regular alcohol treatment, ongoing anger management, parenting 

classes, and intensive individual therapy. Appellant continued to use and test positive for 

marijuana. She denied using alcohol or marijuana at the time the report was prepared; 

however, Christmas found that appellant minimized her alcohol abuse and diagnosed her 

with alcohol abuse. Appellant was receiving twice-a-week visits with Gemma, in her 

home, supervised by A Better Way. 

 At the 12-month review hearing held April 26, 2012, the court found appellant’s 

progress “substantial,” ordered an additional six months of reunification services, and set 

the 18-month review hearing for September 27, 2012. 

 In addition to the information set forth above, the September 12, 2012 report, 

prepared for the 18-month review, related that the early interventionist with the Golden 

Gate Regional Services expressed concern regarding appellant’s smoking habits and 

reported her home smelled of smoke. Appellant admitted she continued to use marijuana, 

despite expiration of her card. She again claimed to be in the process of quitting. She 

claimed she had discontinued her alcohol use and her test results showed no record of 

alcohol abuse. She was continuing individual therapy with Ewick, but the therapy had 

been reduced to once-a-month sessions. Ewick told the social worker that appellant was 

no longer benefitting from the weekly sessions and did not have much to talk about. 

Ewick had worked with appellant for more than a year. The therapist stated it was a joint 

decision to move to monthly visits and reported that she did not believe it would be 

therapeutically appropriate to expand visits to more than once a month. Ewick would not 

elaborate on appellant’s therapeutic services, stating that the only release appellant had 

authorized was to give the worker a record of appellant’s attendance. She did inform the 

worker that appellant was diagnosed with major depressive disorder recurrent in partial 
7

remission. She reported appellant was continuing to work on managing her depression 

and that she was taking her medication regularly. 

 The Agency was concerned about appellant’s relationship with the father, since it 

appeared appellant was not engaging in protective measures to address the hostile and 

violent nature of their relationship. In May 2012, the therapeutic visitation worker told 

the worker that the maternal grandmother had reported she thought that the father might 

have been at the home during a visit. A service tech responsible for transportation had 

reported that on one occasion appellant would not allow her in the house during drop off 

and the service tech thought this behavior was odd. Appellant denied this had happened 

and denied that the father had ever been present during a visit. The social worker met 

with appellant to discuss this information and made it clear to appellant that the father 

could not be around when Gemma is visiting and that his presence created a safety threat 

for Gemma. Appellant stated that she and the father continued to see each other, but are 

not in a relationship and that she had no desire to get back together. The worker 

discussed the police service calls to appellant’s residence (five between January and May 

2012) and offered a referral to appellant to undergo a domestic violence intake with the 

Agency’s domestic violence specialist, Christine Leon, to address this continued issue. 

Appellant asked if she and the father could just sign something saying they would stay 

away from each other. 

 On June 1, 2012, appellant reported the father had tried again to come into the 

house and she had refused. The worker suggested she call Leon and discuss strategies for 

dealing with the relationship. The worker also gave appellant the number of the Riley 

Center Crisis Line in the event the father attempted to come to the house again. In a 

conference call with appellant and Leon, they discussed her ongoing relationship and 

strategies for being proactive and dealing with the relationship. Leon stated that 

appellant had previously participated in eight weeks of domestic violence classes and had 

transitioned to individual therapy to address issues related to domestic violence existing 

in her relationship with the father. Leon stated that she and Appellant had contacted 

appellant’s counsel to obtain a restraining order against the father. On June 18, appellant 
8

admitted that the father might still have a key to the home and that she would put in a 

request to have the locks changed. A day later, appellant stated she was backing off on 

requesting the restraining order because she did not want to cause any more drama in her 

life. She said she had put in the request to change the locks. On July 23, 2012, appellant 

stated in response to the social worker’s inquiry that she did not think it was necessary to 

change the locks. The worker discussed with appellant the importance of this safety 

measure for Gemma. Appellant was told the most recent call on the police log was July 

13, 2012, and appellant denied the police came out that day. The worker informed 

appellant that she would no longer be able to have unsupervised visits due to the 

Agency’s concerns about her interaction with the father. She was encouraged to follow 

through with the various suggestions to change the locks, get a restraining order, follow 

through with her therapy and with domestic violence services. The Agency referred 

appellant to another domestic violence program, Casa De Las Madres, for a domestic 

violence support group. Appellant reported that she had completed intake there and 

would begin a domestic violence group the week of August 27, 2012. She reported she 

had had her locks changed. 

 Two-year-old Gemma was reported to be in the 12- to 18-month range in all 

developmental domains. She had a significant expressive language delay and used 

approximately 10 words. She had failed all developmental milestones for two-year-olds, 

except her ability to imitate adults, which she passed. She was not walking yet, but had 

learned to pull herself up over the last couple of months and was very mobile. Her 

breathing condition was getting better, although there were ongoing concerns regarding 

appellant’s cigarette and marijuana smoking and the effects on Gemma’s chronic lung 

disease. Although there was no direct evidence that appellant was smoking in the home, 

the social worker and another service provider each reported the home had a stale 

smokiness present during their visits. 

 The Agency recommended termination of reunification services to appellant and 

the setting of a section 366.26 selection and implementation hearing to implement a 

permanent plan. 
9

In August 2012, a dispute over visitation arose when the Agency, which in July 

2012 had exercised its court-authorized discretion to move to unsupervised visits between 

appellant and Gemma, required that visits again be supervised. The Agency required 

supervision upon discovering appellant had continued her volatile relationship with the 

father, inviting him to her home, resulting in conflict between the pair and police 

intervention. 

 A hearing on the visitation dispute was set for August 15, 2012. The attorney for 

Gemma filed a declaration in support of an ex parte hearing on the request for a formal 

order for supervised visits only, stating: “Mother misrepresented her continued 

involvement with Father to both the Agency and to the Agency’s domestic violence 

specialist. San Francisco Police Department records of calls for service to appellant’s 

home indicate that contrary to appellant’s representations, the police have been called to 

Mother’s home on eight occasions since January 2012 to separate Mother and Father. By 

her own declaration, Mother states that she has not sought police assistance but rather 

that Father has sought police assistance following Mother’s visit with Father and dispute 

or conflict arising during the interaction.” (Italics added.) Appellant admitted that the 

father came to her home unannounced and police records reflected calls for service at all 

different times of the day and on different days of the week. Appellant admitted the 

father had keys to her home and continued to have those keys. Police officers reported 

they had regular contact with appellant and the father and, on at least one occasion in the 

previous two months, the officers smelled alcohol on both parents’ breath while 

confronting them about a conflict. Appellant had consistently been admonished that her 

continued relationship with the father would jeopardize reunification. 

 On August 10, 2012, after the Agency discovered this information and moved to 

reinstate supervised visits, appellant’s attorney requested a restraining order against the 

father. Appellant’s declaration stated the father had a “habit of coming by my apartment 

uninvited and unannounced.” She admitted she sometimes let him in, but stated he often 

refused to leave. She stated that the father had made the calls to the police, falsely stating 

that she was being violent with him. She stated that he was trying to jeopardize her 
10

efforts to reunify with Gemma and that he had told her so directly. Appellant maintained 

there was no current physical violence between the pair. She also maintained that the 

father had not been present during any of her unsupervised visits with Gemma. She 

admitted she had allowed him into her home and that she had not been “entirely truthful 

with my social worker about my contact with him.” She also admitted the police 

repeatedly had advised her not to let the father into her home. On August 13, 2012, the 

court denied the temporary restraining order against the father. On August 15, the court 

confirmed that appellant’s visits were to be supervised by the maternal greatgrandmother. The Agency was given discretion to move to unsupervised visitation with 

24 hours notice to Gemma’s counsel. 

 On September 18, 2012, appellant filed a section 388 request to change court 

order, seeking to return to unsupervised visits with Gemma, and describing the steps she 

had taken to follow up with regard to the relationship with the father, including changing 

her locks, not allowing the father into the home and engaging in domestic violence 

services. The hearing on the section 388 petition was scheduled and later continued to be 

combined with the 18-month review hearing that was continued to November 16, 2012. 

Three days before the review hearing, appellant moved to continue it pursuant to section 

352, arguing she was doing very well, that she had not shown any record of alcohol use 

and her marijuana levels had dropped to zero recently. She had attempted to obtain a 

restraining order against the father, had attended eight weeks of domestic violence classes 

and transitioned to individual therapy to address issues related to domestic violence. She 

maintained that the therapy had been reduced to monthly, despite her need for intensive 

therapy. Relying on In re Elizabeth R. (1995) 35 Cal.App.4th 1774, appellant’s counsel 

requested a continuance in order to “clarify the relationship between the parents and 

allow the appellant . . . time to engage in intensive therapy.” The court approved a 

continuance to January 7, 2013. 

 On January 3, 2013, Gemma’s counsel sought an order that appellant’s visits be 

supervised by the Agency, rather than the maternal grandmother, and that visits be 

reduced from 11 hours per week (two 5.5 hour visits) to two 3-hour visits per week. 
11

Counsel did so after receiving documentary proof on January 2, 2013, that appellant’s 

recent urinalysis tests established that she continued to use alcohol and that she had seven 

positive results over the preceding two months, one of which indicated use within eight 

hours of testing. Appellant admitted she had resumed drinking because of “stress.” Six 

of the seven positive tests indicated appellant drank at or near the time of her visits with 

Gemma. The police made two service calls to appellant’s home in November (after 

appellant had filed the section 388 petition to change the order to unsupervised visits and 

overnight visits) to address conflicts between appellant and the father. Contrary to 

appellant’s August 2012 statements that she was finished with her violent and unhealthy 

relationship with the father, she admitted they had been attempting to reconcile. Further, 

appellant’s use of alcohol was particularly troubling, as in the past she had been involved 

in violent altercations while under the influence of alcohol. Counsel for Gemma argued 

that supervision by Gemma’s elderly great-grandmother was insufficient to assure 

Appellant had not consumed alcohol before a visit and that the maternal greatgrandmother was under no duty to report to the court on such matters. On January 4, 

2013, the court granted the request to have appellant’s visits supervised by the Agency, 

but denied the request for a reduction in duration of the visits. The 18-month review 

hearing was again continued. 

 An addendum report filed in advance of the 18-month review hearing set for 

February 8, 2013, confirmed many details set forth in Gemma’s counsel’s request to 

change appellant’s supervised visits. Appellant admitted she had been drinking, that she 

had tested positive for alcohol use on seven occasions since October, that she had invited 

the father to her home to “work on” the relationship, and that police were called on two 

occasions in November in response to altercations between the couple at appellant’s 

home. Appellant informed the worker she was now staying away from the father, that 

she had changed her phone number and had put in a request to the housing authority to 

move her residence. She said she had begun participating in weekly domestic violence 

classes with a local domestic violence support group and with the Riley Center. 

Appellant reported that she had recently resumed weekly therapy with Ewick, after 
12

having once monthly therapy for a period of about five months. The therapist informed 

the worker that appellant was working on domestic violence issues, parenting topics, and 

managing her depression. The therapist reported appellant had demonstrated progress in 

that she left the relationship with the father, stayed on her medication and had not had a 

major depressive episode in some time. 

 Appellant had been referred to HPP for substance abuse at the outset of the 

dependency. According to the initial assessment, she had been drinking alcohol for 

11 years, and had periods of heavy drinking for the last two years. Appellant did not start 

case management with HPP until 2012, and attended regularly for a brief period until 

July 2012, at which point she began canceling appointments and did not return. 

Appellant was provided with relapse prevention counseling during the monthly meetings 

and was encouraged to continue going to AA meetings on a regular basis. Appellant only 

participated in AA for a two-month period and was not attending at the date of the report. 

 The 18-month review hearing was held on February 8, 2013, some 23 months after 

Gemma’s initial detention. Social Worker Candace Seagrove was the only witness. The 

status review report and the addendum were admitted into evidence. Seagrove confirmed 

the Agency’s recommendation to terminate reunification services, despite the Agency’s 

extensive work with appellant to resolve the safety issues giving rise to the dependency. 

The primary concern was appellant’s continued involvement in the volatile relationship 

with the father. Notwithstanding more than 18 months of services and continued 

admonitions that the volatile relationship was putting her reunification at risk, appellant 

admitted she had invited the father to her home and was trying to work on the 

relationship. The worker testified there had been numerous 911 calls involving disputes 

between the pair, but conceded she was unaware of any arrests for domestic violence 

since the March 2011 incident that precipitated the dependency. Seagrove testified that 

appellant reported the two would argue and the argument would escalate to either her 

calling the police to get the father to leave or he would end up calling the police because 

she was asking him to leave. 
13

 With respect to the requirement that appellant participate in intensive individual 

therapy services, Seagrove testified that appellant’s therapist was in the best position to 

implement the recommendations set forth in the psychological evaluation. Appellant was 

referred for weekly individual therapy with Ewick, in which appellant had participated 

for a substantial amount of time. However, for a period of approximately five months the 

weekly therapy transitioned to once monthly sessions because, according to the therapist, 

appellant was not benefitting from the weekly sessions and did not have much to discuss 

during their therapy sessions. The decision to reduce the frequency of sessions was a 

joint decision by appellant and the therapist. Seagrove testified that one of the issues 

addressed in appellant’s therapy was domestic violence. 

 Seagrove disputed Ewick’s view that appellant had made progress in the 

relationship with the father. The Agency worked with appellant over the course of the 

dependency to address the domestic violence and social workers had repeatedly 

explained to appellant that Gemma could not be exposed to that relationship due to the 

history of violence and the nature of the violence. They had believed appellant was “on 

track” to unsupervised overnight visits when everything halted in August due to 

discovery of appellant’s reengagement with the father and her admission that she had not 

been truthful with the Agency about that relationship. Appellant had been receiving 

domestic violence services from the Riley Center since August 2012, as well as through 

the Agency’s domestic violence specialist. Upon referral by the Agency, appellant had 

also participated in an eight-week domestic violence group at the beginning of the case. 

 Seagrove also testified that in addition to the domestic violence issues, the Agency 

had ongoing concerns about appellant’s substance abuse issues, particularly her 

continuous use of alcohol and her smoking habits. Seagrove related that appellant had 

recently begun testing positive for alcohol beginning in October 2012, and as recently as 

January 2013, one month before the 18-month review hearing. Appellant never 

completed a program or committed to AA, even after numerous referrals issued to HPP to 

assist her in overcoming her substance abuse. Asked why the Agency did not provide 

alternative services, the social worker explained that appellant was not testing positive for 
14

alcohol before her relapse in October 2012, and there was no indication that she needed a 

more rigid program. Seagrove testified appellant tested positive for marijuana on at least 

one occasion since September, although her most recent tests had been negative. The 

worker described the Agency’s concern about appellant’s use of alcohol and marijuana to 

cope with stress and about the impact on appellant’s cognitive abilities when she is under 

the influence of these substances, insofar as her ability to care for this special needs child 

was concerned. 

 The Agency was also concerned about appellant’s smoking cigarettes and her 

minimizing the importance of her smoking in light of the information provided by 

Gemma’s doctors and the Agency regarding the detrimental effects her smoking had on 

Gemma, whose lung function was already seriously compromised and the referral to HPP 

to receive support to stop smoking. A pulmonary specialist was monitoring Gemma and 

in light of her condition, a smoke-free home was essential “so as not to trigger any kind 

of asthma conditions relating to the chronic lung disease.” Appellant indicated she 

wanted to stop smoking only a few weeks before the 18-month review hearing. The 

social worker again referred appellant to HPP to assist her with smoking cessation. The 

social worker opined that in light of Gemma’s multiple medical and developmental needs 

and appointments, it was extremely important that her caretaker be drug free, very 

organized and very present and aware. 

 At the end of the hearing, the court terminated reunification services to appellant. 

It found that she had made some effort to comply with reunification requirements, but 

that she had not reached a point where she could be entrusted to provide the necessary 

protective measures Gemma required. The court also rejected appellant’s argument that 

she had not received sufficient therapeutic services, finding “the therapist herself had 

assessed that mom wasn’t benefiting from the therapy sessions, and that they jointly 

decided that they would go to monthly sessions and that mom didn’t have much to talk 

about and things were just not moving.” The court found by clear and convincing 

evidence that appellant did not and was not able to participate fully in the court-ordered 

treatment plan, that the Agency had made reasonable efforts to provide or offer services 
15

designed to overcome the obstacles leading to the dependency, and that the Agency 

complied with the case plan by making reasonable efforts to return Gemma to a safe 

home. The court further found that return of Gemma to the parents would create a 

substantial risk of detriment to the safety, protection, emotional or physical well being of 

Gemma. The court set a section 366.26 hearing. 

 On May 8, 2013, we denied appellant’s petition for extraordinary writ, filed 

pursuant to rule 8.452, in which she sought review of the juvenile court’s findings and 

orders terminating her reunification services and setting a section 366.26 hearing. 

 In the June 11, 2013 section 366.26 report, the Agency related that Gemma, who 

was now nearly three years old, had been diagnosed with chronic lung disease, though 

her asthmatic condition continued to improve. She had made impressive developmental 

strides, but continued to demonstrate deficits in all developmental areas. 

 Gemma was “social and friendly” and had bonded closely with her foster/adoptive 

parents, with whom she had lived since August 2012. The foster/adoptive parents had 

expressed “a willingness for an open adoption and for Gemma to continue to know and 

have a relationship with her biological family, per their parental discretion.” They 

wanted to focus on establishing a relationship with appellant and to then let appellant 

decide which relatives she would like to include in ongoing contact with Gemma. The 

social worker had submitted a referral to the Consortium for Children to assist in 

mediating future visitation. The social worker believed that adoption with these 

prospective parents was in Gemma’s best interest. “Gemma receives devoted care and 

attention to her many needs in this home. Gemma’s foster dads have demonstrated a 

commitment to permanency for Gemma and have been exceptional in managing her 

multiple care needs. . . . Gemma has progressed markedly well in this home in all her 

areas of development and continues to thrive in this home.” 

 Since the last court date in February, appellant had participated in supervised 

visitation with Gemma every other week. Appellant and other relatives, such as the 

great-grandmother and Gemma’s brother, were “appropriate and caring” during visits. 
16

 The Agency recommended termination of parental rights and approval of adoption 

as the permanent plan. 

 At the November 6, 2013 section 366.26 hearing, Ronda Johnson, a child welfare 

supervisor for the Agency, testified that the permanent plan for Gemma continued to be 

adoption with her current caretakers, with whom she had lived for 15 months and to 

whom she looked for provision of her day-to-day needs. The prospective adoptive 

parents had completed an adoptive home study, were committed to adopting Gemma, and 

were able to meet her special needs. 

 Arlette Smith, a social worker in the Agency’s adoptions unit, testified that 

appellant participated in supervised visitation once every other week for three hours. She 

had not observed any of the visits, but the supervisor of the visits had informed her that 

appellant attended the visits regularly and that they were “going fine” and were 

“unremarkable.” Nothing detrimental to Gemma was taking place at the visits, although 

the supervisor was encouraging appellant to be more physically active with Gemma 

during visits. 

 Smith testified that Gemma had special needs, including a chronic lung condition 

and asthma, endocrinological and neurological issues, as well as developmental delays 

that required physical and occupational therapy. The prospective adoptive parents had 

been able to meet Gemma’s special needs and Smith believed they would continue to do 

so in the future. Gemma had progressed developmentally while living with the 

prospective adoptive parents. 

 Appellant testified that since she had begun visiting with Gemma in 2011, she had 

missed only two or three visits. Appellant’s mother, grandmother, and son also attended 

some visits. Appellant had previously visited Gemma three times a week, but visits were 

now once every other week. During the visits, appellant would make Gemma breakfast 

and lunch, play and read with her, and fix her hair. Appellant believed that she had a 

beneficial relationship with Gemma that should continue because she took care of 

Gemma and did not harm her, and they love each other. 
17

 At the conclusion of the hearing, the juvenile court found that Gemma’s best 

interests would be served by adoption by her current caretakers, with whom she could 

“have stability and permanency through a loving home.” The court also found that the 

benefit of a continued relationship with appellant did not outweigh the benefits that 

adoption with her prospective adoptive parents would provide her.3

 The court therefore 

terminated appellant’s parental rights.4 

DISCUSSION 

Applicability of the Beneficial Parent-Child Exception to Adoption 

 “Once reunification services are ordered terminated, the focus shifts to the needs 

of dependent children for permanency and stability. [Citation.]” (In re A.A. (2008) 167 

Cal.App.4th 1292, 1320.) “At a hearing under section 366.26, the court must select and 

implement a permanent plan for a dependent child. Where there is no probability of 

reunification with a parent, adoption is the preferred permanent plan. [Citation.]” (In re 

K.P. (2012) 203 Cal.App.4th 614, 620.) When the court finds that the child is likely to be 

adopted if parental rights are terminated, it must select adoption as the permanent plan 

unless it finds by clear and convincing evidence, pursuant to one of the statutorilyspecified exceptions, “compelling reason[s] for determining that termination would be 

detrimental to the child.” (§ 366.26, subd. (c)(1)(B).) The parent has the burden of 

proving that termination of parental rights would be detrimental to the child under any of 

these exceptions. (In re C.F. (2011) 193 Cal.App.4th 549, 553.) 

 3

 The court observed that the prospective adoptive parents had indicated that they 

were open to an open adoption with appellant and perhaps other family members. But 

the court also made clear that the prospective adoptive parents’ potential willingness for 

appellant to have contact with Gemma played no part in its finding Gemma adoptable and 

the beneficial parent-child relationship exception inapplicable. 

 The court did state that visitation would “be arranged between the adoptive parents 

and [appellant].” 

4

 The court also terminated the parental rights of Gemma’s father, who is not a 

party to this appeal. 
18

 At issue here is the beneficial-parent child relationship exception, which applies if 

the juvenile court finds, by clear and convincing evidence, that “[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).) 

 Appellate courts have differed on the correct standard of review for determining 

the applicability of a statutory exception to termination of parental rights. (Compare, e.g. 

In re Autumn H. (1994) 27 Cal.App.4th 567, 576 [applying substantial evidence 

standard]; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 [applying abuse of 

discretion standard]; In re K.P., supra, 203 Cal.App.4th at pp. 621-622 [applying 

substantial evidence standard of review to whether beneficial parent-child relationship 

exists and applying abuse of discretion to standard to whether that relationship provides a 

compelling reason to apply exception]; accord, In re Bailey J. (2010) 189 Cal.App.4th 

1308, 1314.) The “practical differences” among these various standards of review “are 

not significant” (In re Jasmine D., at p. 1351), and our conclusion ordinarily would be the 

same under any one of them. Because, in this case, both parties apply the standard of 

review articulated in In re Bailey J. and In re K.P., we shall do the same. 

 Here, appellant contends the juvenile court wrongly concluded that the benefit of a 

continued relationship with appellant did not outweigh the stability and permanency that 

adoption with her prospective adoptive parents would afford Gemma Respondent, while 

acknowledging that appellant regularly visited with Gemma and that Gemma apparently 

enjoyed the visits, argues that appellant did not satisfy the additional requirements of the 

beneficial parent-child relationship exception to adoption. 

 In In re C.F., supra, 193 Cal.App.4th at page 555, the appellate court explained 

that it had “interpreted the phrase ‘benefit from continuing the relationship’ in section 

366.26, subdivision (c)(1)(B)(i) to refer to a ‘parent-child’ 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 
19

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.’ [Citation.] 

 “A parent must show more than frequent and loving contact or pleasant visits. 

[Citation.] ‘Interaction between natural parent and child will always confer some 

incidental benefit to the child. . . .’ [Citation.] The parent must show he or she occupies 

a parental role in the child’s life, resulting in a significant, positive emotional attachment 

between child and parent. [Citations.] Further, to establish the section 366.2, subdivision 

(c)(1)(B)(i) exception the parent must show the child would suffer detriment if his or her 

relationship with the parent were terminated. [Citation.]” (In re C.F., supra, 193 

Cal.App.4th at p. 555, quoting In re Autumn H., supra, 27 Cal.App.4th at p. 575, fn. 

omitted.) 

 “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.) “Application 

of this exception is decided on [a] case-by-case basis and a court takes into account such 

factors as the minor’s age, the portion of the minor’s life spent in the parent’s custody, 

whether interaction between parent and child is positive or negative, and the child’s 

particular needs.” (In re Scott B. (2010) 188 Cal.App.4th 452, 471.) 

 In the present case, the evidence shows that appellant regularly visited with 

Gemma during the years of the dependency. It also shows that appellant cared about 

Gemma and that they had a positive relationship. The record further reflects, however, 

that appellant was not able to resolve the issues leading to dependency or to meet the 

special needs of three-year-old Gemma, who has remained out of appellant’s custody for 

more than half of her young life. (See In re Scott B., supra, 188 Cal.App.4th at p. 471.) 

In short, substantial evidence supports the juvenile court’s implied finding that a 

beneficial parent-child relationship does not exist between appellant and Gemma. (See In 

re K.P., supra, 203 Cal.App.4th at pp. 621-622; see also In re C.F., supra, 193 
20

Cal.App.4th, at p. 555 [parent must show she “occupies a parental role in the child’s life, 

resulting in a significant, positive emotional attachment between child and parent”].) 

 Moreover, even assuming appellant did demonstrate that a beneficial parent-child 

relationship existed between her and Gemma, we find no abuse of discretion in the 

juvenile court’s determination that appellant has not shown that termination of parental 

rights would be detrimental to Gemma, i.e., that the benefit of a continued relationship 

with appellant outweighs the well-being Gemma would gain from a permanent adoptive 

placement. (See In re C.F., supra, 193 Cal.App.4th, at p. 555.) 

 The evidence shows that, for Gemma, it is her prospective adoptive parents who 

provide her with the ongoing parental guidance, nurturance, and stability that she needs. 

As the social worker related in the section 366.26 report, Gemma had “bonded closely 

with her foster/adoptive parents, looking to them as her ‘secure base.’ ” The social 

worker further related that Gemma was receiving “devoted care and attention to her many 

needs” and that the prospective adoptive parents had “demonstrated a commitment to 

permanency for Gemma and have been exceptional in managing her multiple care 

needs. . . . Gemma has progressed markedly well in this home in all her areas of 

development and continues to thrive in this home.” In addition, multiple therapists and 

service providers who made home visits had “observed collectively that Gemma’s foster 

dads . . . are nurturing, committed, and involved in every aspect of helping Gemma to 

learn and grow . . . .” 

 In addition, at the section 366.26 hearing, Ronda Johnson, social work supervisor, 

testified that it was Gemma’s current caretakers—with whom she had lived for 15 

months at the time of the section 366.26 hearing and who were committed to adopting 

her—to whom she turned for provision of her day-to-day needs. Arlette Smith, Agency 

adoptions social worker also testified that the prospective adoptive parents were able to 

meet Gemma’s special medical and developmental needs and that Gemma had 

progressed developmentally while in their care. 

 In light of all of this evidence, the juvenile court plainly did not abuse its 

discretion when it concluded that Gemma’s relationship with appellant was not so 
21

important to her well-being as to outweigh the well-being she will gain in a secure, 

permanent adoptive home with her current caretakers. (See In re K.P., supra, 203 

Cal.App.4th at pp. 621-622; see also In re C.F., supra, 193 Cal.App.4th, at p. 555; 

compare In re Brandon C. (1999) 71 Cal.App.4th 1530, 1537-1538 [mother had been 

permitted only limited visitation, but evidence of benefit of continued contact between 

her and children was sufficient to support juvenile court’s decision to order 

guardianship].)5

 

 In sum, this is not the sort of “extraordinary case” in which the “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; see § 366.26, subd. (c)(1)(B)(i).) 

 5

 To support her argument that guardianship was the proper permanent plan in this 

case, appellant cites a treatise and several law review articles, as well as cases from other 

jurisdictions, regarding the value to children of maintaining relationships with their birth 

families. Appellant makes a worthwhile general point but, as a practical matter, as 

respondent observes, “Had the Legislature intended to allow dependency courts the 

discretion to choose among various permanent plans, despite the child’s adoptability and 

the inapplicability of any exceptions, it certainly had the means to create such legislation. 

It did not.” 

 Here, because the juvenile court reasonably found that Gemma is adoptable and 

that none of the statutory exceptions to adoption apply, it properly terminated appellant’s 

parental rights. We also observe, however, that there is a real possibility that Gemma and 

appellant will continue to have some postadoption contact, given that the prospective 

adoptive parents appear to appreciate the likely benefit to Gemma of continuing contact 

with her birth mother. 
22

DISPOSITION 

 The juvenile court’s order terminating appellant’s parental rights with respect to 

Gemma K. is affirmed. 

 _________________________ 

 Kline, P.J. 

We concur: 

_________________________ 

Richman, J. 

_________________________ 

Brick, J.* 

 * Judge of the Alameda County Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.