Filed 5/13/24 In re E.E. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

In re E.E., a Person Coming 

Under the Juvenile Court 

Law.

2d Juv. No. B331640

(Super. Ct. No. 23JV00050)

(Santa Barbara County)

SANTA BARBARA COUNTY 

CHILD PROTECTIVE 

SERVICES,

 Plaintiff and Respondent,

v.

G.E., et al.,

 Defendants and Appellants.

G.E. (father) and A.B. (mother) appeal from the orders of 

the juvenile court denying their Welfare and Institutions Code1

1 All further statutory references are to the Welfare and 

Institutions Code. 
2

section 388 petitions and terminating their parental rights.

2 

They contend the juvenile court erred when it denied their 

petitions without a full evidentiary hearing. They also contend 

the juvenile court erred when it found the parental-benefit 

exception did not apply. (§ 366.26, subd. (c)(1)(B)(i).) We affirm. 

Facts and Procedural Background

Father and mother have a long history with the 

dependency system due to their chronic substance abuse and 

criminality, including the termination of their parental rights to 

their older children. In February 2023, Santa Barbara County 

Child Welfare Services (CWS) detained four-day-old E.E. after 

she tested positive at birth for amphetamines, 

methamphetamines, methadone, and fentanyl. Mother admitted 

to using fentanyl in the days prior to giving birth. E.E. was 

placed with paternal aunt.

Mother submitted on jurisdiction and agreed to waive her 

rights. The juvenile court took judicial notice of parents’ prior 

dependency matters and found the allegations in the amended 

section 300 petition to be true. (§ 300, subds. (b)(1), (j).)

At the disposition hearing, the juvenile court declared E.E. 

a dependent of the court, bypassed reunification services for both 

parents pursuant to section 361.5, subdivisions (b)(10), (b)(11), 

and (b)(13), and set the matter for a section 366.26 hearing.

In September 2023, father and mother each filed a section 

366.26 offer of proof asserting the parental-benefit exception 

applied. They also filed section 388 petitions requesting

reunification services. Parents asserted a change in 

circumstances based on their participation in services, substance 

2 Father joins in mother’s arguments pursuant to 

California Rules of Court, rule 8.200(a)(5).
3

abuse treatment, and parenting classes, among other things.

They also asserted E.E. was bonded to parents and would benefit 

from continuing the relationship.

The juvenile court conducted a hearing on whether to hear 

evidence of the merits of parents’ section 388 petitions. After 

carefully considering the proposed change of order and hearing 

argument, the juvenile court denied the petitions holding the 

parents failed to establish both the change in circumstances and 

best interest requirements.

The juvenile court proceeded to the section 366.26 hearing. 

The parties stipulated E.E. was adoptable and that parents had 

maintained regular visitation. After hearing testimony and 

considering the evidence presented, the juvenile court found E.E. 

was likely to be adopted and that parents had not proven the 

parental-benefit exception applied. The juvenile court 

terminated father and mother’s parental rights. 

Discussion

Mother appears to challenge the juvenile court’s earlier 

orders as to jurisdiction and disposition. Her challenges are 

barred because they are untimely. (See Cal. Rules of Court, rule 

8.406(a)(1).)

Section 388 petition

Father and mother next contend the juvenile court erred by 

failing to grant a full evidentiary hearing on their section 388 

petitions.

To be entitled to an evidentiary hearing on a section 388 

petition, the parent must make a prima facie showing of (1) a 

change of circumstances or new evidence, and that (2) 

modification of the prior order would be in the best interests of 

the minor child. (In re Ernesto R. (2014) 230 Cal.App.4th 219, 
4

223; In re Zachary G. (1999) 77 Cal.App.4th 799, 806; see Cal. 

Rules of Court, rule 5.570(d)(1), (e).) 

A prima facie case is made where the allegations in the 

petition demonstrate that these two elements are supported by 

probable cause. (In re G.B. (2014) 227 Cal.App.4th 1147, 1157.) 

“It is not made, however, if the allegations would fail to sustain a 

favorable decision even if they were found to be true at a hearing. 

[Citations.] While the petition must be liberally construed in 

favor of its sufficiency [citations], the allegations must 

nonetheless describe specifically how the petition will advance 

the child’s best interests. [Citations.]” (Ibid.) 

We review the juvenile court’s summary denial of a section 

388 petition for abuse of discretion. (In re Angel B. (2002) 97 

Cal.App.4th 454, 460.) Under this standard, we will not disturb 

the decision of the juvenile court unless the juvenile court 

exceeded the limits of legal discretion by making an arbitrary, 

capricious, or patently absurd determination. (In re Stephanie M. 

(1994) 7 Cal.4th 295, 318.) If two or more inferences can 

reasonably be deduced from the facts, we have no authority to 

substitute our decision for that of the juvenile court. (Id. at p. 

319.)

No Abuse of Discretion

Father and mother contend the juvenile court abused its 

discretion when it denied their section 388 petitions because it 

relied on inapposite caselaw and applied the wrong standard of 

“preponderance of the evidence” rather than the “prima facie” 

test. In so doing, they contend the juvenile court deprived them 

of due process. We disagree. 

Although parents are correct that the juvenile court applied 

the wrong standard, the error was harmless. The juvenile court 
5

must hold an evidentiary hearing on a section 388 petition only if

the proposed evidence, if credited, might make a difference in the 

court’s ruling. (In re Lesly G. (2008) 162 Cal.App.4th 904, 912; In 

re Edward H. (1996) 43 Cal.App.4th 584, 593-594.)

Here, it is not reasonably likely that additional testimony

would have persuaded the juvenile court to grant parents’ 

petitions. The juvenile court expressly stated that it had 

“carefully” reviewed parents’ section 388 petitions, the court file, 

and past reports. As the juvenile court explained, even if it were 

to “find everything true,” it still could not find that “extend[ing] 

permanency,” and “delay[ing] [E.E.’s] adoption” so parents could 

have another “shot” at reunification would be in E.E.’s best 

interest. Thus, any error was harmless. (Cal. Const., art. VI, § 

13.) 

Moreover, after the juvenile court has bypassed or 

terminated reunification services, the focus of the case shifts from 

the parents’ interest in the care, custody, and companionship of 

the child to the needs of the child for permanency and stability. 

(In re Stephanie M., supra, 7 Cal.4th at p. 317; In re Angel B., 

supra, 97 Cal.App.4th at p. 464.) At this point, there is a 

rebuttable presumption “that continued foster care is in the 

child’s best interests.” (In re Aaliyah R. (2006) 136 Cal.App.4th 

437, 448.) That presumption is even more difficult to overcome, 

where as here, the permanent plan is adoption. (Id. at pp. 448-

449.) 

Father contends this presumption is not insurmountable. 

As to E.E.’s best interests,3 father contends: (1) he has dedicated 

3 Mother did not address the “best interests” prong of the 

section 388 analysis but joined father’s arguments in her reply 

brief. (Cal. Rules of Court, rule 8.200(a)(5).) 
6

himself to improving his parenting skills, (2) E.E.’s relationship 

with her caregivers will not be “hurt” by offering parents 

reunification services because the concurrent planning parent is 

committed to maintaining parents’ relationship with E.E., and (3) 

father and mother are more than “friendly stranger[s]” because 

they attended all of E.E.’s medical appointments, cared for her 

during their visits, changed her diaper, fed her, rocked her, 

shared “tummy time” with her on the floor, comforted her, and 

saw to her needs. 

In determining whether the section 388 petition makes a 

prima facie showing that the proposed order would promote the 

best interests of the minor child, the juvenile court may consider 

several factors, including the seriousness of the problem that led 

to the dependency, the strength of the relationship between the 

minor child to both her parents and her caretaker, and the degree 

to which the problem leading to the dependency has been 

removed or ameliorated. (In re Kimberly F. (1997) 56 

Cal.App.4th 519, 530-532.)

Here, father and mother have “extensive” histories of 

substance abuse and failing to reunify with their children. E.E. 

was detained from parents at just four days old after she tested 

positive for multiple substances at birth. She has lived all of her 

young life with her current caregivers who love her and have 

provided her with a safe and nurturing home. She is thriving 

and her caretakers are committed to adopting her. On these 

facts, the juvenile court did not err in denying parents’ section 

388 petition without a full evidentiary hearing.

Because we conclude parents did not make a prima facie 

showing that the requested modification would be in E.E.’s best 
7

interest, we need not consider the other prong of the required 

prima facie showing – a genuine change of circumstances. 

Beneficial Parent-Child Relationship Exception

Mother, joined by father, contends the juvenile court erred 

by finding the parental-benefit exception to adoption did not 

apply.

“‘At a permanency plan hearing, the [juvenile] court may 

order one of three alternatives: adoption, guardianship or longterm foster care. [Citation.] If the dependent child is adoptable, 

there is a strong preference for adoption over the alternative 

permanency plans.’ [Citation.]” (In re B.D. (2021) 66 Cal.App.5th

1218, 1224.) If the juvenile court finds that the child is 

adoptable, it must terminate parental rights unless a statutory 

exception applies. (§ 366.26, subd. (c)(1).) 

One exception to this rule is the parental-benefit exception, 

which allows the juvenile court to avoid termination if it “finds a 

compelling reason for determining that termination would be 

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

regular visitation and contact with the child and the child would 

benefit from continuing the relationship.” (§ 366.26, subd. 

(c)(1)(B)(i).) To avoid termination of parental rights under this

exception, a parent must show, by a preponderance of the 

evidence, three things: (1) regular visitation and contact with the 

child, (2) the child has a substantial, positive, emotional 

attachment to the parent—the kind of attachment implying that 

the child would benefit from continuing the relationship, and (3)

termination of the attachment would be detrimental to the child. 

“When the parent has met that burden, the parental-benefit 

exception applies such that it would not be in the best interest of 

the child to terminate parental rights, and the court should select 
8

a permanent plan other than adoption.” (In re Caden C. (2021) 

11 Cal.5th 614, 636-637 (Caden C.).) 

Our review of the juvenile court’s ruling on whether the 

parental-benefit exception applies incorporates two standards of 

review. (Caden C., supra, 11 Cal.5th at pp. 639-641.) We apply 

the substantial evidence standard to the first two prongs of the 

exception and abuse of discretion to the third prong. (Ibid.)

Here, the parties stipulated that E.E. was adoptable and 

that for purposes of the parental-benefit exception, the parents had 

maintained regular visitation and contact. (§ 366.26, subd. 

(C)(1)(B)(i).) However, the parents failed to satisfy the second two 

elements. 

Beneficial Relationship

In determining whether the “‘child would benefit from 

continuing the relationship,’” the focus is on the child. (Caden C., 

supra, 11 Cal.5th at p. 632.) The exception must be examined on 

a case-by-case basis, taking into account “a slew of factors” which 

affect a parent/child bond such as, “‘[t]he age of the child, the 

portion of the child’s life spent in the parent’s custody, the 

“positive” or “negative” effect of interaction between parent and 

child, and the child’s particular needs.’” (Ibid., quoting In re

Autumn H. (1994) 27 Cal.App.4th 567, 576.) 

Here, the juvenile court acknowledged that father and 

mother loved E.E. and had a bond with her. But the juvenile 

court did not find E.E. had a “substantial, positive emotional 

attachment” to them given her young age and that she has spent 

all of her life in the care and custody of the resource parent. 

Instead, parents were “friendly visitors” with whom E.E. enjoyed 

contact but the relationship did not go beyond that. 

We conclude substantial evidence supports the juvenile 

court’s finding as to this element.
9

Detriment Caused by Termination

“When [the juvenile court] weighs whether termination 

would be detrimental, . . . the question is just whether losing the 

relationship with the parent would harm the child to an extent 

not outweighed, on balance, by the security of a new, adoptive 

home.” (Caden C., supra, 11 Cal.5th at p. 634.) “‘If severing the 

natural parent/child relationship would deprive the child of a 

substantial, positive emotional attachment such that,’ even 

considering the benefits of a new adoptive home, termination 

would ‘harm[]’ the child, the court should not terminate parental 

rights.” (Id. at p. 633.) 

Here, the juvenile court properly weighed the benefits of 

adoption and found no evidence of detriment. On these facts, 

there was no abuse of discretion.

Disposition

The orders denying parents’ section 388 petition and 

terminating parental rights are affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P. J.

BALTODANO, J.
Gustavo E. Lavayen, Judge

Superior Court County of Santa Barbara

______________________________

Kate M. Chandler, under appointment by the Court of 

Appeal, for Defendant and Appellant, father, G.E. 

Vincent W. Davis, for Defendant and Appellant, mother, 

A.B.

Rachel Van Mullem, County Counsel, Lisa A. Rothstein, 

Snr. Deputy County Counsel, for Plaintiff and Respondent.